Can we renege on an informal working from home arrangement?

Q: We have a number of staff who verbally agreed to work from home a number of days a week, but it was never formalised, and now the company want to stop them doing it. Can a company do this? Or as it's been happening for so long, do we need to consult?

Seamus: My view on that would be that they have to consult. If it has been going on for a lengthy period of time, even if it's not written down and there's no correspondence confirming it, there's a custom and practice that has been established that probably at this stage would form part of their terms and conditions of employment. And if they wanted to make amendments to the terms and conditions of employment, you have to consult, you have to get agreement. If you make a unilateral decision in terms of that, potentially the employee could say this is a . . .

Scott: Constructive dismissal.

Seamus: . . . fundamental breach of my contract of employment. Really, there is a good — I think I've mentioned this before — but there's a really good piece on the LRA's website (Agreeing and changing contracts of employment). They have guidance in terms of varying terms and conditions of employment and the best practice in order to do that.

Sometimes it can feel for an employer as an impossible task because sometimes you will have employees that are just simply not willing to change and move. If somebody has had the benefit of working from home, and I think it would be difficult to re-engage that employee back into working in an office environment. I think you're going to have to have some carrots in terms of trying to engage and get them in.

Scott: Certainly would. I’m in for a few days a week when I can, and yeah, I get them into the office five days a week. What's the point? I'll lose an hour-and-a-half's travel time.

Seamus: Listen, there are fantastic benefits available there for employees that can work at home, and equally, there are fantastic benefits for employers as well. And the research shows that there is a benefit to it. And so to bring them back in at work I think again comes back to the employer having to justify that. And the consultation period really is going to be about presenting to the employee why it's necessary and seeking their agreement in terms of it. Without that agreement, you’re on a sticky wicket.