Can My Employer Refuse To Change My Work Conditions?

You may need to change when or where you work for many reasons. You might need to collect children from school, manage a health condition, care for a family member, avoid a difficult commute, or find a shift pattern that works better for your life.  You can ask your employer for flexible working arrangements. This may include different hours, shifts, rostered days or work locations. However, the right to ask is not the same as an automatic right to have your request approved.

A flexible working arrangement is a change to your normal hours, days or place of work. It could include earlier finishing times, fewer hours, different rostered days, day shifts instead of night shifts, or working from home. The change may be temporary or permanent.

Part 6AA of the Employment Relations Act 2000 gives every employee the right to request flexible working arrangements. You can make a request at any time, from your first day of employment, and for any reason. There is no limit on how many requests you may make.

Does my employer have to approve my request?

The law gives you a right to make a request and have it properly considered. It does not normally give you a right to the working arrangement you prefer. Your employer may refuse the request if they genuinely decide it cannot be accommodated on one or more of the recognised grounds in the Act. However, they cannot dismiss your request without considering it, ignore the legal process, or give a reason that is not permitted by the Act.

Your employment agreement, workplace policy or collective agreement might give you stronger rights about hours, shifts or location. Check these documents before accepting that your employer can simply say no.

How should I make the request?

If you want the protection of the formal flexible working provisions, make the request in writing and say that it is made under Part 6AA of the Employment Relations Act 2000. Include your name, the date, the exact change you want, whether it is temporary or permanent, and the proposed start and finish dates. Explain how it could work for both sides and any changes the employer may need to make.

You should be specific in your request and include the hours or shifts you want. Explain how calls, meetings or handovers could be managed. You could suggest a trial. This may give the employer confidence that quality and customer service will not suffer. Record the terms in writing, including the dates and any effect on pay. Keep a copy of your request and evidence of when it was sent.

What should my employer do when they receive my request?

Your employer must consider a valid request fairly and in good faith. They must respond in writing as soon as possible and no later than one month after receiving it. The timeframe can be extended if you both agree to a trial period after the request is made.

If the employer agrees, the new arrangement should be clearly recorded in writing. This is important because changing hours, days or location may change terms in your employment agreement. The document should say whether the change is permanent, temporary or a trial, and whether it affects your pay or other conditions.

If the employer refuses, the written response must identify the legal ground relied on and explain the reason for the refusal.

Good faith should involve genuine consideration, not treating the request as an annoying formality. Discussing practical effects and possible alternatives is sensible. Even if the exact proposal cannot work, a compromise may.

What reasons can an employer give for refusing?

An employer can refuse a Part 6AA request only if the arrangement cannot be accommodated because:

• work cannot be reorganised among existing staff,

• additional staff cannot be recruited,

• the change would harm quality,

• the change would harm performance,

• there would not be enough work during the times you propose to work,

• planned structural changes would cause a problem,

• the change would create a burden of additional costs,

• the change would harm the ability to meet customer demand; and/or

• the change would be inconsistent with a collective employment agreement that applies to you.

  
  

An employer should connect the selected ground to your actual request. A bare statement such as business reasons or company policy may not meet the statutory requirements.

However, the ability to challenge the employer’s business assessment under Part 6AA is limited. Generally, you cannot bring a formal complaint merely because you disagree with the conclusion or believe the employer could make the arrangement work. The statutory complaint focuses on whether the employer followed the required process.

What should I do if my request is refused?

First, read the response carefully. Does it identify a recognised ground? Does it explain how that ground applies? Was it provided within one month?

Then ask for a meeting. Find out which part causes the problem and what information was considered. Ask whether different days, hours or locations, a trial, a later start date, or partial approval could work. Follow the meeting with an email recording what was discussed. If you make a revised proposal, state clearly whether it is a new formal request.

You can also use an internal process or seek help from HR, your union or an employment advocate.

Can I make a legal complaint about the refusal?

Under the ordinary flexible working rules, a formal complaint is available where the employer has not followed the statutory process. This could include failing to reply within one month, failing to respond in writing, or refusing the request without relying on an allowed ground.

The usual statutory route begins by seeking help from a Labour Inspector. The matter may then be referred to mediation. If it remains unresolved, it may go to the Employment Relations Authority. The Authority can order the employer to comply and may award a penalty of up to $2,000, payable to the employee. The Authority does not usually replace the employer’s business decision with its own.

If your request is connected with disability, pregnancy, sex, family status, religion, or another protected ground, a blanket refusal may raise discrimination issues under the Employment Relations Act or Human Rights Act 1993. Employers may also need to consider reasonable accommodations for a disabled employee, unless doing so would be unreasonable in the circumstances.

If the employer punishes you, cuts your shifts, blocks opportunities, bullies you or dismisses you because you made the request, that conduct may support a personal grievance for unjustified disadvantage, discrimination or dismissal.

A breach of an agreed term about your hours or workplace may also create an employment relationship problem.

Personal grievances normally must be raised within 90 days of the action occurring or coming to your attention. Do not let informal discussions run down the clock.

Special rules for people affected by family violence

An employee affected by family violence can request short-term flexible working arrangements for up to two months under Part 6AB of the Employment Relations Act. These changes can cover hours, days, location, duties and other matters that may help the employee deal with the effects of family violence. The employer must respond in writing within 10 working days. If proof is required, it must be requested within three working days. A refusal must be explained and based on a permitted ground. Get advice promptly if this applies to you. Your safety and privacy should be central to the process.

When should I get help from a legal representative?

Get advice if your employer:

• ignores your request,

• responds late or only verbally,

• gives no permitted ground for refusing,

• treats you badly for making the request,

• breaches your agreed conditions, or

• refuses an adjustment connected with disability or another protected characteristic.

  
  

Do not resign on the assumption that the refusal automatically amounts to constructive dismissal. Constructive dismissal claims are difficult and depend on the full circumstances. Get advice before making a decision that may be hard to reverse. An employment advocate can review the documents and help you decide whether to negotiate, use mediation, make a statutory complaint or raise a personal grievance.

FAQs

Can I ask to change my shifts or roster?

Yes. A request to change when you work can fall within the flexible working rules. Explain the exact shifts or roster pattern you want and how your work could be covered.

Can my employer simply say it is company policy?

For a formal Part 6AA request, the refusal must rely on a ground permitted by the Act and explain the reason. Referring only to a general policy may not be enough.

What if my employer does not reply within one month?

Remind them in writing that the request was made under Part 6AA and that the response is overdue. If it is not resolved, you may seek help from a Labour Inspector, mediation or an employment advocate.

Can I challenge the refusal because I think the employer is wrong?

Usually, you cannot challenge an ordinary refusal solely because you disagree with the employer’s business assessment. You can challenge a failure to follow the statutory process. Other claims may be available if discrimination, retaliation, breach of agreement or unjustified disadvantage is involved.

Can I be dismissed for asking for flexible work?

Your employer should not dismiss or disadvantage you simply for exercising your right to request flexible work. If you are dismissed, have your shifts reduced or are otherwise treated badly after making a request, get advice quickly. The usual personal grievance time limit is 90 days.

If your employer has refused your request for different hours, shifts, rosters or work locations, Mathews Walker can help you understand whether the correct process was followed and what options you may have.

Get in touch for a free consultation. MathewsWalker.co.nz | Employment Problems Solved | 0800612355

Contact Mathews Walker

Disclaimer: The information provided in this blog is for general informational purposes only and should not be considered legal advice. While we strive to keep the information accurate and up to date, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the blog or the information, products, services, or related graphics contained on the blog for any purpose. Any reliance you place on such information is therefore strictly at your own risk. For specific legal advice tailored to your situation, please contact a qualified legal professional.