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Expert employment law insights: Caro Rieger on key workplace trends and legal changes

In this Q&A, we are joined by Caro Rieger, Director at Black Door Law. Caro discusses key topics shaping today's workplace: flexible work, ED&I, mental health, redundancy processes, and more. With extensive experience in employment law, Caro has a proven track record of helping businesses achieve their people and organisational goals.

Her deep understanding of the challenges facing employers and employees and her passion for employment law provide valuable insights into New Zealand's evolving legal landscape. Join us as we explore the latest developments in employment law and gain expert perspectives on how to navigate today’s complex issues.

 

What emerging trends do you predict will drive the busiest areas of employment law in 2025?

The big ‘trends’ in employment law in 2025 will be the impact of AI, navigating work from home, hybrid work environments and the desire of some employers to see the ‘return to the office’. These factors, coupled with the ongoing changes in the public sector and the impact that has on private industry, will mean that restructures will continue to be a feature in the 2025 landscape. The ongoing advancement of AI is going to start seeing an impact on work. We can already see this in the legal context, where the development of reliable AI software protects highly confidential information, but also enhances speed. This AI functionality will likely start to influence junior positions.

 

Are there any upcoming significant changes or updates to the employment law landscape of New Zealand that businesses should be aware of?

The most significant potential change in labour landscape will be the distinction between contractors and employees. We’ve seen the impact of the Uber decision, and the proposed clarification of the employee-contractor test. Together, these factors are likely to drive change and development in that space in-and-of themselves.

 

How has the rise of remote and flexible working arrangements, including work-from-home models, impacted employment law in New Zealand, and what legal obligations should employers consider when adapting to these changes?

Thus far the main cases we are seeing in this space are around whether there is a ‘right’ to work from home or whether there has been an unjustified disadvantage by an employer’s direction regarding work.

In terms of obligations. Firstly, Health and Safety has to be at the forefront of employers’ minds. Is the environment where work is being performed safe, physically and psychologically?

Second, businesses need to assess how flexible working has become part of their organisation. What we see is that it is often something that has evolved and normally without formal policies or procedures. However, it may have become a benefit of the employment relationship, regardless of documentation (similar to the way some bonuses are considered to have formed part of someone’s remuneration).   Therefore, if employers are wanting to make changes, they need to ensure they are compliant with employment law.

Third, Employers need to consider how they are going to attract and retain talent, as well as upskill leaders to support and manage different workplace models. There’s the expression ‘you don't have a work-from-home problem, you've got a trust problem’. This is often because employers blame the working model for issues rather than looking at other factors that may be impacting productivity. 

Employers should focus on enabling their staff to be as productive as possible; if employees feel they can be more productive at home, it’s important to consider how this can be facilitated while also balancing the company’s requirements. At the same time, that flexibility needs to be balanced on the employee’s side with considering where there is a need for them to be in the office. 

All working models need to be considered through a mental health lens. Personally, I believe a lack of genuine connection with a team is an unsustainable long-term option. Therefore, hybrid models with designated anchor days are important. Additionally, requiring someone to be in the office just to attend a days’ worth of Zoom meetings doesn’t make sense and we should be encouraging time in the office for kanohi ki te kanohi meetings.

Ultimately, flexibility has to go both ways.

 

What changes do you foresee in wage regulations, and how will these affect employers in the coming year, particularly around minimum wage discussions?

I believe there is still significant clarification needed regarding minimum wage regulations. Many roles, particularly those requiring on-call availability, lack sufficient clarity in both legislation and case law. Currently, much of this is addressed on a case-by-case basis, which requires employers and unions to seek clarification through the courts.

I am a strong advocate for clarity and, given the increase in remote work and the heightened accessibility demands due to technology, it’s important to distinguish between when someone is working, versus when they are available to work, versus when they are not working. These are three distinct situations that deserve careful consideration.

 

How is employment law in New Zealand evolving to address growing demands for diversity, equity, and inclusion in the workplace?

One advantage of New Zealand's legal framework is that many protective measures are already established and have been for a long time. We have a codified Human Rights Act, along with protections for parental responsibilities and rights for flexible working requests. These existing laws provide a solid foundation, and I believe they can be interpreted to adapt to the evolving needs of individuals who are differently abled, including those with neurodivergence.

While protections for marginalised groups exist, the focus needs to be more on the inclusion part of the diversity, equity and inclusion discussion.

 

What are employers' obligations under New Zealand law to support employee mental health and well-being, and are there any new developments in this area?

Employers are required under the Health and Safety at Work Act 2015 to eliminate risks to health and safety as far as reasonably practicable. This includes risks to psychological safety. Although there hasn't been significant legal development in this area so far, there is growing recognition of the issue. Employees frequently raise personal grievances related to psychological harm, citing concerns that their employer's health and safety obligations have not been met. The societal shift in relation to recognising the impact of mental health challenges has increased the instances where this is raised.  However, it is important to note that there are many people in high-risk roles that are still facing day to day risks to life and limb and accordingly the limited resources of the regulator are mostly taken up with addressing issues in the physical harm space.

 

What are the key legal considerations for businesses planning workforce restructuring or redundancies, particularly in light of the economic outlook for the coming year?

First, we should not talk ourselves into a recession. Current indicators are actually moving in a positive direction, so as much as we talked ourselves into the recession, we should be talking ourselves out of it. Setting that aside, if you are contemplating a restructure, the initial step is to assess whether the roles in question are surplus to requirements or necessary. It's crucial to focus on the role itself as a restructure relates to a role rather than the individual. I advise seeking specialist legal advice guidance early in the process and carefully considering the reasons behind the restructure. Are you reorganising the workforce without reducing headcount, or are you planning a reduction in numbers? In either case, you need to determine how to objectively select individuals for the new positions. One of the biggest oversights in restructures that result in redundancies is failing to consider redeployment obligations and the necessity of exploring alternatives to dismissal.

 

Are there trends or recent cases in New Zealand that highlight best practices or pitfalls when managing redundancy processes?

The principles surrounding restructures are well-established: it focuses on the position rather than the individual. They relate to the employer's right to change their business for efficiency but balancing that with the obligation to consult with staff regarding these changes. This includes providing sufficient information for employees to offer considered input, genuinely considering feedback, and exploring redeployment options.

 

What trends in employment disputes, such as unjustified dismissal or personal grievances, should employers be aware of, and how can they resolve these issues before they escalate?

I believe that most personal grievances stem from a lack of communication. My impression is that many people leaders are hesitant to engage in difficult conversations out of fear of triggering a personal grievance. Leaders and managers should proactively discuss performance and identify areas for improvement, which can be done informally to prevent escalation into formal grievances. Recently, we've seen an increase in claims of constructive dismissal, which also highlights the importance of effective communication. The best approach for employers is to address issues as they arise, with sound guidance from an experienced advisor, ideally a specialist employment lawyer, who can anticipate potential challenges and help mitigate risks in relation to them.

 

Interested in getting in touch with Caro or learning more? Click here to visit the Black Door Law website.

 

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