Flexible work arrangements – top tips for working through a request that you want to reject

An employee who’s been on unpaid parental leave is entitled to come back to the job they had before going on leave, even if another person is working in their role as a replacement.

They also have the right to request flexible work arrangements, but there are some rules about how they need to process this request and how you must respond.

The rules around requesting flexible work arrangements

An employee needs to make their request for flexible working arrangements:

  • in writing
  • and explain what changes are being asked for and the reasons for the request

You, as the employer, have an obligation to consider the request and how it could be implemented in the workplace, and formally respond in writing within 21 days. You should let the employee know whether you refuse the request or accept it – or alternatively you can negotiate a different outcome if you can reach agreement on an alternative arrangement.

Accepting the request

We recommend that you never accept the request right off the bat – always meet in person to clarify the terms of the request, the practicalities and get a better understanding of your employee’s headspace. By talking about the request face-to-face you will learn valuable information that will help you when you need to confirm these changes in writing so don’t skip this step.

Refusing a request for flexible work arrangements

If you’re going to refuse a request, you must be able to demonstrate that you have reasonable business grounds to do so. For example, you may want to refuse the request because:

  • the requested arrangements will be too costly for your business
  • other employees’ working arrangements can’t be changed to accommodate the request
  • it’s impractical to change other employees’ working arrangements or hire new employees to accommodate the request
  • the request would result in a significant loss of productivity or have a significant negative impact on customer service

Top tip: be very careful when refusing a request, and seek advice from us if you’re not sure whether you can. You don’t want to be caught up in a discrimination case so tread carefully when saying no.

Before refusing a request

We recommend that before you refuse a request, you meet with the employee to go over their request to ensure that you understand their proposal properly and you can then ask any questions you may have. This is also a good opportunity to reality check the request with the employee and help them see any difficulties / issues with the request from the organisations perspective.

Here are some questions that you can ask the employee when going through their request:

  • How do you envisage these changes working from an operational perspective?
  • What impact do you see these changes having on the broader team? [and if there are any negatives, how do you envisage we can counter these?]
  • How long are you proposing for this change to be in place for? [it’s important that you both understand whether this is a temporary solution or a permanent ongoing one – you’ll need to document this accordingly]
  • [If requesting a job share arrangement that involves you hiring someone] Do you know whether it will be easy / hard to find a resource to job share with you in line with your proposal?
  • [If requesting to work from home or reduced hours] Are you proposing a reduction in your hours or are you proposing to make up additional hours at night / early morning? Will you be able to dial in for team meetings etc?
  • Will your proposal impact on the aspects of your job that are client facing? [and if so, how do you propose dealing with this?]
  • What support will you require of us to help fulfil this proposal (i.e. laptop to work from home etc)?

Once you get a fulsome picture about what it is that the employee is requesting, take the time to consider all of this information and seek advice if need be. It may be that you want to refuse the request, or amend the proposal, and doing so after a time of reflection and consultation with the employee will drastically reduce your risk and liability.

What is the risk of refusing a request?

If you refuse a request, and the employee is unhappy about it, they could then bring a claim for discrimination (as people are protected from being discriminated against for caring responsibilities) or a general protections / adverse action claim. If you’re concerned about these risks, or not sure how to go about refusing (or negotiating on) a request, please contact Jess on 03 9111 5660 or jessica@sinclairmay.com.au.

How we can help your business

We can help your business with the following:

  • Help you through a discrimination, unfair dismissal or general protections (adverse action) claim
  • Help you implement or refuse flexible work arrangements in the best interests of the business and operational requirements
  • Draft fixed-term contracts for your maternity leave replacement
  • Draft a policy on flexible work to set parameters for employees and guidance for managers about how to handle flexible work practices in your business
  • Anti-discrimination, harassment and bullying training to fulfil your Work Health and Safety obligations and help your employees resolve things internally (to reduce the risk of a claim and minimise any harmful behaviour in your business)

This is general advice only. Liability limited by a scheme approved under Professional Standards Legislation. 

Published Jan 16, 2018

Clifton Hill Jessica Kerr Sinclair + May jessica@sinclairmay.com.au

Jessica Kerr is the Director of Sinclair + May, a female-led, boutique commercial law firm based in Melbourne’s inner north.  Sinclair + May work with small businesses to ensure their legals are in order. Book a free 15-min chat here to talk with one of our solicitors.

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