As mentioned in a recent blog, working remotely has become a hot topic, prompting organisations to carefully navigate requests for flexible arrangements. In a recent decision, the Fair Work Commission (FWC) outlined some factors that may justify denying a working from home (WFH) request.

What do employers need to do?

  • Develop clear criteria for evaluating WFH requests, ensuring a fair and consistent approach that considers business needs and employee well-being.
  • As part of any policy/procedure, flag that there will need to be documentation to support a disability ground.
  • If a request cannot be accommodated, always consider alternatives, and document those after discussion with the worker to demonstrate reasonable consideration of the worker’s request.

What happened?

The applicant submitted a flexible working arrangement application to his employer requesting to work exclusively from home. His reasons included (i) an expected custody arrangement, which would allow him to care for his child every second week, and (ii) his medical condition, described by him as a disability (“inflammatory bowel disease”).

The employer assessed the applicant’s request considering different factors such as:

  • the employer’s commitments with their clients and the associated penalties for non-compliance;
  • the skills required for the position;
  • the applicant’s productivity target, which in this case sat below the average;
  • the type of support the applicant needed to boost his productivity and meet targets;
  • and his contribution to the team culture (eg as a mentor to other staff).

The employer proposed for its workforce to continue working under a hybrid arrangement, and in the case of the employee, gradually increasing his office attendance. The employer’s counter-proposal involved allocating office days during weeks when the applicant wouldn’t have custody of his son. The employer also said they could locate the applicant closer to the bathrooms.

FWC findings

The FWC dismissed the application for the following reasons:

  • the applicant was diagnosed with an inflammatory bowel disease by an online medical provider who did not personally evaluate him. Furthermore, the applicant had not obtained treatment to address his condition. The FWC therefore did not believe the medical condition constituted a disability;
  • there was no agreed custody arrangement at the time, so the necessary connection was not established;
  • the applicant’s face-to-face presence would allow (i) closer contact with the workforce team, (ii) observation, interaction and coaching for the applicant, and (iii) easy access to the applicant’s experience for less experienced team members.

Hence, the FWC concluded that the applicant’s request was appropriately denied on reasonable business grounds.

Key takeaways

  • WFH requests may be assessed considering organisational commitments and the employee’s required skills, productivity, support, and the broader impact on the organisation’s culture.
  • Medical conditions, especially those claimed to constitute a disability, must be supported with medical evidence.
  • Face-to-face interaction is valuable for team connection, training/coaching, and knowledge transfer. It may be considered a valid basis to deny a WFH request in specific contexts.
  • Employers can propose hybrid work arrangements to address employee requests, and gradually increase office attendance, so long as it complies with the legal requirements to accommodate prescribed circumstances in the Act. This will usually be undertaken on a case-by-case basis, that is, there is no ‘one size fits all’.

How Justitia can help

We can assist employers to implement clear procedures and guide responses to requests for flexible working arrangements.

For more information about this case, or for assistance with preparing your organisation to respond to requests for flexible working arrangements, contact