The Right to Disconnect

The ‘Right to Disconnect’ has been widely publicised but what does it actually mean for employees and employers? What about staff who need to be “on call” outside normal working hours? What happens if an employer fails to respect the right to disconnect?

The introduction of the right to disconnect marks a significant shift in workplace relations, ensuring that employees can maintain a healthy work-life balance by setting boundaries on work-related communications outside of their ordinary hours. As this workplace right takes effect, it is crucial for both employers and employees to understand and respect these new guidelines.

What is the Right to Disconnect?

Starting 26 August 2024, employees working for businesses with more than 15 employees will have the right to disconnect, meaning they can refuse employer or third-party contact outside of their working hours. This right will extend to employees of small businesses (with 15 or fewer employees) beginning 26 August 2025. Under this policy, employees have the right to decline monitoring, reading, or responding to any contact from their employer or a third party outside of their working hours, unless such refusal is deemed unreasonable. This right also applies to any attempted contact made outside of an employee’s working hours.

When Is Refusal Considered Unreasonable?

A key element of this new workplace right is determining whether an employee’s refusal is reasonable.

The new law provides some guidance as to what matters will be taken into account in assessing whether a refusal is reasonable (e.g. the level of disruption to the employee, the employee’s level of responsibility and, importantly, the extent to which the employee is compensated for being available outside of ordinary hours of work) but ultimately it will be important to see how these matters are applied by the Courts to practical scenarios. From 26 August 2024, all awards will be amended to include a ‘right to disconnect’ provision and additional guidance may also be provided in these amendments.

Employers should evaluate whether contacting employees outside of their ordinary hours is necessary and whether it would be considered “reasonable” based on the criteria outlined above. It will also be important to consider whether any amendments to your standard employment agreements or workplace policies are needed to make sure employees are aware of the level of availability that is expected of them under their current remuneration arrangements.

Understanding Business Hours and Reasonable Additional Hours

Another important thing for employers to be clear on is what an employee’s ordinary working hours are. These hours should be clearly outlined in their employment contract or terms, and may of course differ from the business’s operating hours. For example, a hospitality establishment might operate from 10:00 am to 11:30 pm, but an employee’s ordinary hours could fall within this timeframe without covering the entire span. Therefore, when considering an employee’s right to disconnect, remember that this right applies once the employee has completed their ordinary hours, as stipulated in their roster or employment contract.

Maximum weekly hours are part of the National Employment Standards (NES), which apply to all employees covered by the national workplace relations system, regardless of any award, agreement, or contract. Employers must not request or require an employee to work more than the maximum (38 hours for full-time employees) unless the additional hours are reasonable:

When determining whether additional hours are reasonable or unreasonable, employers must consider the following factors:

Any risk to employee health and safety;
The employee’s personal circumstances, including family responsibilities;
The needs of the workplace or enterprise;
Whether the employee is entitled to overtime payments, penalty rates, or other compensation for working additional hours, or whether their level of remuneration reflects an expectation of additional hours;
The amount of notice given by the employer to work the additional hours;
The amount of notice given by the employee regarding their intention to refuse additional hours;
The usual patterns of work in the industry;
The nature of the employee’s role and level of responsibility;
Whether the additional hours align with averaging provisions included in an applicable award or agreement, or an averaging arrangement agreed upon by the employer and an award/agreement-free employee.

This list is not exhaustive, and employers should take into account all relevant factors concerning their employees. If additional work hours are needed, employers should consider the terms of the Award, and any contact with employees should be based on the specific circumstances that necessitate it. In circumstances where additional advice is required.

Who is covered by the new law?

Any employee of a ‘national system employer’, can seek protection under this new right to disconnect. A national systems employer includes all corporations under Australia’s workplace relations laws and encompasses the majority of businesses within Australia.

What to do if there is a dispute

Where a dispute arises between employer and an employee around the right to disconnect, they must firstly attempt to resolve this dispute within the organisation. This is an essential step before either the employer or employee apply to the Fair Work Commission (FWC) for assistance.

The right to disconnect is expressly designated as a protected workplace right under Part 3-1 of the Fair Work Act 2009 (Cth) (the FW Act). Therefore, while the FWC encourages workplaces and employees to work collaboratively to resolve disputes, the FWC also has certain powers to deal with such disputes, for example by making a stop order and/or by holding a conference with the parties to try to resolve the dispute.

In addition to these orders, the FWC has jurisdiction to handle disputes if an application is filed under the General Protections regime. Under this framework, employees who have faced adverse actions, such as dismissal, demotion, or being passed over for promotion, can apply to the FWC for a resolution.

Fair Work Commission Dispute Resolution

The FW Act offers employees both new and existing mechanisms to address disputes over the right to disconnect, including requirements for workplace resolution and the ability to seek intervention from the FWC. In addition to protection and recourse if adverse action is taken against employees for exercising or proposing to exercise their right to disconnect.

New Powers:

In accordance with section 333N FW Act, employees and their employer must attempt to resolve any dispute regarding the right to disconnect at the workplace level. This can involve open dialogue, conferences and forms of mediation. If these efforts are unsuccessful, either party may apply to the FWC to make either:

(a) make an order under section 333P (orders to stop refusing contact or to stop taking certain actions);

(b) otherwise deal with the dispute.

To clarify section 333N (3) (B) regarding the phrase ‘deal with the dispute’, section 333V of the FW Act outlines the powers of the FWC to:

Deal with the dispute as it considers appropriate, including by mediation, conciliation, making a recommendation or expressing an opinion, in accordance with section 595 FW Act; and
If the employee and employer notify the FWC that they agree to the FWC arbitrating the dispute—the FWC may deal with the dispute by arbitration.

The relevance of the new powers exists in situations where adverse action has not been taken by an employer, however, the taking of the right to disconnect is disputed and has not been resolved at a workplace level.

Existing powers

Under section 340 of the Fair Work Act, employers are prohibited from taking adverse action against employees for exercising a workplace right, proposing to exercise a workplace right, or preventing employees from exercising a workplace right.

Adverse action includes situations where an employer, in response to an employee exercising a workplace right, including right to disconnect:

Dismisses the employee; or
injures the employee in his or her employment; or
alters the employee’s position to their detriment; or
discriminates against the employee compared to other employees

Eligible employees and prospective employees may file general protections claim. Remedies for adverse action claims include compensation for non-economic losses and financial damages resulting from the employer’s conduct. The Federal Court has unlimited authority to award damages in these cases.

The right to disconnect is now recognised as a workplace right, but, under the existing powers, it only becomes relevant only when an employer takes adverse action against an employee for exercising it. Beyond providing protection in such cases, the right to disconnect has no further significance. We anticipate that this right will play a significant role in general protections claims for individuals who are ineligible for unfair dismissal claims, such as those earning above the high-income threshold.

By leveraging these powers, the FWC can issue stop orders, implement alternative dispute resolution mechanisms, provide recommendations or opinions, and, if agreed upon, arbitrate disputes concerning the right to disconnect.

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August 26

Mondelez Update

In our November 2019 blog, we outlined the Full Court of the Federal Court of Australia’s decision on what amounted to a ‘day’ for paid personal/carer’s leave under section 96(1) of the Fair Work Act 2009 (Cth) (the FW Act).

The Federal Court of Australia Decision

The case concerned two employees who worked their contracted 36 hours per week over three 12-hour days. Other employees worked their 36 hours over five days, working 7.2 hours per day. Under the Mondelez Australia Pty Ltd, Claremont Operations (Confectioners & Stores) Enterprise Bargaining Agreement 2017 (the Enterprise Agreement), employees who worked 12-hour shifts were allowed 96 hours per year of paid personal/carer’s leave. This was compared to employees who worked 7.2-hour days and were allowed 80 hours per year of paid personal/carer’s leave.

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November 8

How long is a day?

The law is an occupation that deals primarily with language. Words have both an ordinary meaning, and a legal meaning. Lawyers and parties to litigation will often ask the courts to define the legal meaning of words, when the ordinary meaning is plainly obvious. While this may seem a waste of the court’s time and resources, this can sometimes be critical for the interpretation of legislation, as well as contractual arrangements.

In a blog a couple of years ago, my colleague Brian Powles looked at the legal meaning of the word ‘because’ in relation to Part 3-1 of the Fair Work Act 2009 (Cth).

The Federal Court of Australia was again recently asked to define another very ‘ordinary’ word. What is a ‘day’, in relation to paid personal/carer’s leave under the National Employment Standards (the NES).

Section 96(1) of the Fair Work Act 2009 (Cth) (the FW Act) provides employees with a right to 10 days of paid personal/carer’s leave, with the result of how the court defines a day, affecting the total leave hours certain employees would be entitled to. An employee can take paid personal/carer’s leave if they are sick or injured, or if they need to provide care or support to an immediate family member, or a member of their household who is sick, injured, or has an emergency.

Case

The case was Mondelez v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) [2019] FCAFC 138. Mondelez’s employees work 36 hours per week. Some employees work their 36 hours over five days, working 7.2 hours a day. Other employees complete their 36 hours in three days, working 12 hours per day. Under the Mondelez Australia Pty Ltd, Claremont Operations (Confectioners & Stores) Enterprise Bargaining Agreement 2017 (the Enterprise Agreement) employees who worked 12 hour shifts were allowed 96 hours per year in paid personal carer’s leave. Employees who worked 7.2 hour days were allowed 80 hours per year. Mondelez sought two declarations from the Federal Court of Australia:

When a 12 hour shift employee takes paid personal/carer’s leave they are to be deducted 12 hours from their accrued hours of paid personal/carer’s leave; and
Mondelez employees’ entitlement to paid personal/carer’s leave was more beneficial under the Enterprise Agreement compared to the ‘10 days’ under the NES.

The majority judgment of Justices Bromberg and Rangiah held that the declarations sought by Mondelez could not be made.

Submissions were made by Mondelez and the Australian Manufacturing Workers Union (the AMWU) on the definition of a ‘day’ for paid personal/carer’s leave in the NES. Mondelez submitted that a ‘day’ was calculated by dividing an employee’s weekly hours by the number of days in the company’s working week, being five days for Mondelez. Whereas, the AMWU defined a day as an ordinary calendar day, being 24 hours.

The majority judgment did not accept the AMWU’s interpretation of a day meaning 24 hours per day of paid personal/carer’s leave. Justices Bromberg and Rangiah stated that the better interpretation of a day for paid personal/carer’s leave was a ‘working day’, being the portion of the 24 hour period the employee was allocated to work on that day. In forming their decision Justices Bromberg and Rangiah explained that personal/carer’s leave was not an automatic entitlement for employees to take leave. An employee is only able to take personal/carer’s leave for a personal illness or injury, or the illness, injury or emergency of an immediate family member, or member of the employee’s household. Justices Bromberg and Rangiah noted that not all employees would take their full or even part of their personal/carer’s leave entitlement.

Justices Bromberg and Rangiah held that under the Enterprise Agreement’s entitlement to 96 hours paid personal/carer’s leave, which calculated to be eight 12 hour shift days, was less beneficial than the NES entitlement for Mondelez’s employees. They held that under the NES, employees who worked 12 hour shifts would receive 10 days’ worth of 12 hour shifts in paid personal/carer’s leave.

In their judgment Justices Bromberg and Rangiah provided some conclusions about a ‘working day’ and personal/carer’s leave. Paid personal/carer’s leave was an authorised absence from work and a form of income protection for employees so that they are not disadvantaged in the event of a personal illness or injury, or that of an immediate family member or member of their household. It was not an entitlement to take leave except in those circumstances. A day for personal/carer’s leave was the portion of the normal 24 hour day that an employee was allocated to work. The entitlement to paid personal/carer’s leave accrues over the year of service. When an employee takes paid personal/carer’s leave that day, or the part of the day that they were absent, is taken from their accrued leave. The ability to take such paid leave is limited to how much the employee has accrued.

Take Home

The message from this decision is that when an employer is accounting for paid personal/carer’s leave they are to do so in days or part days, not hours. An employee is entitled to 10 days absence from work due to their own illness or injury, or the illness, injury or an emergency for an immediate family member or member of the employee’s household. Days being whatever portion of that day the employee was expected to work.

However, employers should hold off making any changes to their systems as the Morrison Government and Mondelez have sought leave to appeal the decision in the High Court.

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November 1

The Misuse and Abuse of the FWC’s Stop Bullying Order Applications

In a decision by the Fair Work Commission (the Commission), Deputy President Sams warned against Applicants’ improper use of stop bullying applications “as a deflection, or diversion, or even to overturn a justified disciplinary action”.

The detrimental effects of workplace bullying on employees are well known and include decreased productivity, reduced well being, and increased absenteeism. This, in turn, has detrimental effects on an organisation’s productivity and operational dynamic.

The Commission can make orders that it considers appropriate to prevent an applicant from being bullied at work, providing an avenue to stop workplace bullying.

In cases where the conduct constitutes bullying under the Fair Work Act 2009 (Cth) this can be useful. However, often times, employees may genuinely feel aggrieved by management decisions and feel ‘harassed, bullied or targeted’, despite objectively this not being the case. Though a worker’s feelings may be genuine, the legal test of what constitutes bullying does not consider the workers own belief, but rather is an objective test of what amounts to bullying. My colleague Jacob Reddie considered the overuse of the term bullying in the workplace in a previous post.

It is reasonable and at times necessary to manage workers’ performance, investigate complaints and provide disciplinary action. In some circumstances this may be robust. This, however, can fall within the scope of ‘reasonable management action’ which is taken in a reasonable way and is an exception to the definition of bullying under the Fair Work Act 2009 (Cth). Without this exception it could be extremely hard to manage difficult misconduct and performance issues. So long as the management action is reasonable, it does not need to be the perfect or ideal response. The action will be unreasonable if it lacks any evident and intelligible justification.

Some employees disconnect between what does and does not legally constitute bullying, combined with what to them is a genuine grievance, can lead to inappropriate stop bullying applications. The more concerning conduct is that of an employee who knowingly alleges conduct to be ‘bullying’ because they do not agree with or like the management’s decision, and attempt to circumvent that decision.

This issue is considered in the case below.

Tanka Jang Karki [2019] FWC 3147

Tanka Jang Karki (Karki) was a Bellman at The Star (the Employer). He first filed a bullying application that related to an incident where the Front Office Manager, Ms Jessica Sykes (Sykes), saw him using his phone on 27 August 2018, which was against the Employer’s policy. He claimed he was publicly abused, embarrassed and harassed by Sykes. He later alleged another incident of bullying, being a final warning he received for spitting into a bin in a public work area.

Phone use incident

Karki was directed to attend a meeting about his phone use on 27 August 2018. During this meeting, amongst other things, he claimed he was checking the time, quickly replied to a text from his son and was not using his phone as he was not talking on the phone. He claimed he was harassed by Sykes on 27 August 2018 in front of other people where she yelled at him.

Karki requested to see the CCTV footage as the Employer suggested his phone use was more than the 3 to 5 seconds that he alleged.

During this first meeting he said he was going to HR as he was being harassed.

Another meeting was arranged to show Karki the footage. At this meeting when Karki was told he would be receiving a written warning he replied “if you want to give me the written warning, you will see what will happen”.

Spitting incident

On 30 December Karki was seen spitting into a rubbish bin in a public area. A disciplinary meeting was arranged. Karki admitted to the incident claiming he was bleeding from his mouth, there were no guests in the area, there was dust from construction near the lobby area and the Employer did not have a policy relating to that conduct.

He did not agree with the final warning for this conduct and felt targeted by the Employer.

Commission decision

The Commission found the Employer and Ms Sykes’ conduct constituted reasonable management action carried out in a reasonable manner. Karki was therefore not bullied at work.

The Commission said that Karki’s disciplinary action was justified and his refusal to acknowledge his conduct showed he had little understanding of what bullying in the workplace really means and that any employer able to prove concerns about an employee’s conduct is entitled to take disciplinary action.

It also noted that Karki did not follow the Employer’s grievance process and usually the Commission would not intervene until an internal process was complete.

A concerning observation by Deputy President Sams was that stop bullying applications are being misused as a shield or diversion against justifiable management action.

Key takeaway

Employers have every right to properly manage, discipline and performance manage employee misconduct and poor performance. There are risks if management cannot show an objective and reasonable disciplinary process has been undertaken. It is important for employers to demonstrate a legitimate reason for the conduct being managed and that it is reasonable to manage it in that way, despite not necessarily being the perfect way.

Clear and known workplace policies ensure an employer is well placed to manage and respond to bullying allegations, and although there is scope for the misuse of the stop bullying jurisdiction with some employees quick to allege ‘bullying’ and ‘harassment’, the Commission has demonstrated those applications will not succeed.

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July 8

To text or not to text? That is the question.

Technology has fundamentally altered the way in which we interact. Five billion people use text messages globally every day. Socially, it is one of our primary ways of interacting. Staggeringly, if you are dating someone born after 1984, there is a 53% chance that if that person ends your relationship, it will come to an end via some electronic device, rather than a face to face meeting. Welcome to the modern world.

For many business people, SMS is one of the primary ways that they interact with their employees when they are not at work. So if it is becoming normal for romantic relationships to end via SMS, is it appropriate for an employment relationship to end this way? Last week, two senior members of the Fair Work Commission have independently answered this question with an emphatic ‘No’.

A year ago, a colleague of mine blogged about the issue of face-to-face dismissals, following a dismissal vial email being challenged at the Fair Work Commission. The effect of that blog was to advise our readers of the Fair Work Commission’s view that communicating an employee’s dismissal other than via a face-to-face meeting were only to be used in ‘rare circumstances’. In these two more recent cases last week, the Fair Work Commission has shown us that nothing has changed in the past year.

In the first case, Kurt Wallace v AFS Security 24/7 Pty Ltd [2019] FWC 4292, Mr Wallace, a casual security guard, was dismissed by text message. AFS Security 24/7 Pty Ltd submitted that as a casual employee they could dismiss Mr Wallace at any time and for any reason. In defending their use of a text message the employer submitted that text messages were the ‘normal method of communication’ for the company and that the preference for text messaging was a ‘generational thing’.

Commissioner Cambridge stated that an employee should be dismissed face-to-face. The use of text messages or other forms of electronic communication should only be used if there is a ‘genuine apprehension of physical violence or geographical impediment’.

The small size of the company and common use of text messages in communicating with its employees did not provide an excuse for the company not to comply with its obligation to communicate the dismissal in person.

The second case, Van-Son Thai v Email Ventilation Pty Ltd [2019] FWC 4116, involved Mr Van-Son Thai, a first class sheet metal worker, who was informed of his dismissal via text message. Mr Van-Son had worked for Email Ventilation Pty Ltd for 12 years and had refused to accept an offer of decreased wages.

Deputy President Sams, another very senior member of the Commission, confirmed the same view as his colleague Commissioner Cambridge, in finding that it is inappropriate to inform an employee of their dismissal via text message, email or phone. It is only in very rare circumstances that it would be appropriate to do so, such as when an employer feels that their safety is threatened.

Further, Commissioner Cambridge and DP Sams expressed that dismissal has a significant impact on employees. Employees should accordingly be treated with dignity and respect during the dismissal process. Commssioner Cambridge described the actions of the employer in this case as “unnecessarily callous”; DP Sams describing the dismissal in his case as being “disgraceful and grossly unfair”.

In both cases it was found that the termination of the employee was harsh, unjust and unreasonable, and significant compensation orders were made.

What Employers can Learn from these Cases

While it can be a difficult conversation to be having in person, and even though use of electronic methods of communication in business is increasing, an employee should always be informed of their dismissal in person. The size of the business or their main method of communication does not negate this obligation. Basic decency dictates this, and we cannot see this changing any time soon, despite society generally embracing technology more and more each year.

Using electronic means of communicating dismissal should only be used if the employee has been given ample opportunities to meet face to face and refuses to meet or there is a threat to safety or there are geographical limitations.

In our experience from a practical context, providing a courteous and open forum to communicate the employer’s decision, greatly decreases the potential for employees to be aggrieved enough by the outcome to consider challenging the dismissal legally.

A dismissal does not have to be affected in an adversarial or combative manner. Often, having a respectful conversation, which allows the employee to preserve their dignity, can be the best protection against the issue escalating unnecessarily. Even if the employee becomes abusive or emotional, the employer/manager is well advised to remain as calm as possible.

It is also recommended that employers provide the employee with an opportunity to have a support person present. Contrary to common belief, the Fair Work Act does not create a positive obligation to provide this.

The employer only must not ‘unreasonable deny’ the employee a support person. In our experience, however, the best practice is to actively provide an employee an opportunity to have a support person present during a termination or disciplinary meeting. While an employer does not have to unreasonably delay the meeting for the employee to find a support person. If a reasonable request is made, the request should not be refused.

The employer is entitled to impose conditions on who the support person is (for example not a lawyer) and also require a confidentiality agreement to be signed by the support person. The support person is not an advocate for the employee and in most cases should not actively take apart in the meeting. If they do repeatedly interrupt or intervene, it is appropriate to ask the support person to leave.

Final Note

Employees will often bring termination claims where there is no merit, simply because they are aggrieved at the way they have been treated by an employer. Irrespective of the lack of merit, these claims are inconvenient and costly. At other times, employees will walk away from a potentially valid claim, often because they hold no grudge, and merely wish to get on with their lives. In our experience, the best protection against potential legal claims arising from termination of employment, is to treat your employees with dignity and respect. We may have become a society of disconnected ‘text-aholics’, but when it comes to the dismissal of an employee, the basic rules of common sense and human dignity still apply.

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February 19

Timely Reminders from the Fair Work Commission: The Five categories of employees with access to ‘flexibilty’

In a recent decision from the full bench of the Fair Work Commission, it was held that an employer lacked a reasonable basis for refusing an employee’s request for flexible work arrangements.

The Employee, Detective Senior Constable Gary Emery, was 58-years-old, and nearing retirement. His request was to have additional rest days, as he moved towards retirement. The Employer refused this request, in part because of concern for the ‘floodgates’ of requests of this type, and because of parity and fairness between employees. Before the Fair Work Commission at first instance, and then later confirmed on appeal, it was held that this refusal lacked a reasonable basis.

This particular decision involved an enterprise agreement, rather than the Fair Work Act, and was complex, but in general it brings under spot-light both an employer’s obligations in this situation, as well as key steps that should always be taken when an employer receives a request for flexible work arrangements.

Legal considerations

The right to make a request for flexible work arrangements forms part of the National Employment Standards in the Fair Work Act 2009 (Cth).

When an employer deals with (a) a request to work under flexible arrangements and (b) with the implementation of such request, two important issues must be considered:

the requirement to consider and properly respond to a request; and
if the request involves remote work, an employer’s obligation to ensure that any remote working is done safely.

To be entitled under the Fair Work Act to make a request under this section an employee must fall into one of the categories defined in the section. These include a person who:

has a child of school age or younger;
is a carer;
has a disability;
is over 55 years of age; or
is experiencing violence from a family member or is providing care or support to an immediate family or household member who is experiencing such violence.

An employer’s written response must indicate whether the request has been accepted or denied. If it is denied, reasonable business grounds must be given for the denial such as the proposed arrangement being too expensive, damaging customer service or teamwork, or causing difficulties for other employees. The expenses involved with complying with work health and safety obligations are also relevant.

An employer’s failure to comply with the procedure set out above can incur a penalty of up to $33,000. In Stanley v Service to Youth Council Incorporated [2014] FCA 643, despite an employer having been found to have unintentionally contravened the procedure and showing contrition it was still fined $4,000.

Working From Home as a flexibility arrangement – Some Considerations

Work Health and Safety legislation does not differentiate between the official workplace and other places where employees are approved to carry out work. If an employer has an employee who has been approved to work remotely from home, the employer needs to consider the health and safety implications of this work area.

In Hargreaves and Telstra Corp Ltd [2011] AATA 417 an employee of Telstra who twice fell down the stairs in her home was awarded compensation for medical treatment as well as weekly compensation. On the first occasion Ms Hargreaves, who worked from home two days a week, was coughing violently as she went down stairs in her socks to get cough medicine. On the second occasion she fell while descending the stairs to lock her front door, as instructed by Telstra after an earlier burglary at her property. Both of these falls were held to have occurred while Ms Hargreaves was carrying out her work.

If an employer considers allowing an employee to work from home, a work health and safety audit should be conducted to ensure that reasonable steps are taken to avoid risks to health and safety when work is carried out. Some common health and safety risks in the home include trip hazards from wires, back injuries from unsuitable office equipment and safety hazards such as potential fires from excessive clutter on or around office equipment.

Pros and Cons of Flexible Work Arrangements

Flexible arrangements can offer real benefits for employers, but potential drawbacks also should be considered and steps taken to avoid or mitigate them.

The positives for employers include savings in overheads such as rent, office equipment and electricity, resulting from smaller or more shared work spaces. Flexible arrangements can also make a business more attractive to valued employees.By creating and endorsing a diversity of culture, a business naturally increases its chances of attracting and securing the best employees available for their workplace needs.

On the other hand, employers can find it more difficult to engage with and reap some positive benefits from employees who work under flexible arrangements. The benefits of shared learning can diminish when more experienced employees are the ones more likely to take up flexible options and, thus, spend less time face to face with a team.

Flexible arrangements can also stymie good team work and result in increased employee grievances, if not managed appropriately. Requiring a fixed number of days working in the office along with effective communications with remote or part-time workers can be of real benefit.

By and large employers are embracing employee flexible working options which technology allows them to use. While these arrangements can have real advantages, businesses need to keep the legal issues firmly in mind and work proactively to overcome some of the drawbacks of employees working apart.

Key Takeaways for Employers

Requests for flexible arrangements are most commonly made in respect of families. For many HR professionals and managers, ‘family arrangements’ and ‘flexible arrangements’ have become synonymous. It is difficult to imagine a request, such as DSC Emery’s in this case, being refused on the grounds of ‘flood-gates’ or ‘parity’, had it come from an employee who had family responsibilities.

For this reason, it is critical for employers to recognise that these provisions apply equally to the other categories of employees, most notably those over 55 years of age. This recent case highlights this importance, and should serve as a lesson to employers when reviewing their internal arrangements, policies, or any future request from employees.

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