Two trends in employment law highlight the increasing pressures being felt by both employees and employers: restructuring and redundancy processes and the intersection between crime and employment.

Both need careful navigation. Employers are expected to conduct increasingly sophisticated processes to support and retain their people while workers, increasingly cognisant of their rights, are holding their employers to account.

Common restructuring pitfalls

Employers are reviewing their strategic priorities and organisational structures and are using restructuring to increase efficiencies and reduce staffing costs.

Many have been down this path before. They feel relatively confident in conducting restructuring processes and generally understand their obligations. Employees are also increasingly aware of consultation rights and duties, especially since the covid-19 pandemic.

In particular, managers who have navigated their colleagues’ personal grievances, strategic requests for personal information and/or negotiated exits are well-placed to draw on those experiences if their own employment is put at risk.

A focus on tightening the purse-strings appears to have resulted in a more reactive approach by employers to taking legal advice. More employers are managing formal processes in-house, relying on previous experience and seeking specific advice only when there is perceived to be a material issue.

This, alongside an increased sense of urgency in effecting restructures, can provide fertile ground for disputes.

Employees are increasingly concerned about retaining their jobs and are more educated on their rights and tactical tools, meaning that more are minded to raise disputes and to litigate (and, likewise, for employers to push back).

Some common challenges arising are:

• Reactive consultation: The requirement to consult and consider feedback before implementing a proposal is generally understood. Often overlooked is the need to proactively engage with affected employees during consultation. It is not uncommon for employers to wait until after confirming a restructure before providing responses to feedback. For the most part, this is too little, too late. Instead, employers should ensure they engage with employees on any feedback received during the consultation period, prior to a decision being made. This enables employees to comment on/further engage with the employer’s responses before a decision is made.
• Employee absence: Ad hoc absences are anticipated during consultation processes and a pragmatic workaround can usually be agreed, such as providing extensions for feedback and/or pausing outcomes for limited groups of affected employees. However, we are seeing a rise in both the number of employees absent citing “stress” and asserting that elements of the proposal and/or the consultation process are causative of, or contributing to, their ill-health. The good faith obligation cannot be overlooked; employers are expected to genuinely seek to resolve an employee’s concerns before ploughing on with a process.
• Redeployment: Common employee complaints include a claim that an employee ought to have preference for a role and that selection processes ought to be “closed” (rather than inviting external candidates too). While the foundational legal requirements for redeployment obligations are well-established, at a practical level many employers do not appreciate the extent of their obligations to redeploy – ie, to redeploy “at risk” employees if they are capable of performing a vacant role, even if the employee is not necessarily the best person for that role.

With leaner workforces and stronger commercial drivers for businesses to perform, some employers are concerned to redeploy “at risk” employees into more senior roles (or roles requiring nuanced experience), where there is perceived to be a need for the incumbent to hit the ground running.

Practically, differences in opinion between employers and employees about suitable redeployment opportunities may be unavoidable. However, redeployment disputes are likely to be minimised if employers consult with employees about their preliminary views on suitable redeployment opportunities before making decisions.

Such consultation should include explaining to the affected employee(s):

• material differences between vacant and existing roles;
• why an employee lacks requisite skills, qualifications and experience; and
• why the extent of support and/or retraining required for an employee to be capable of performing a role is not reasonable.

■ Compensation: Although there is no statutory entitlement to redundancy compensation in New Zealand, some employers choose to provide redundant employees with enhanced benefits on termination. There can be a disconnect between the parties’ understanding of whether that benefit is truly discretionary; this often comes to a head when negotiating an agreed exit. Employers need to be explicit, prior to and during redundancy consultation, about employee entitlements. This can be a particularly tricky area for international employers who are unfamiliar with New Zealand law. Many employers also overlook the option to provide enhanced benefits conditional on a “full and final” settlement.

Crime and employment

With crime statistics featuring regularly in media headlines, employment law practitioners are increasingly navigating the interaction between criminal activity and the workplace. In March 2024, Radio New Zealand reported that retail crime had increased by nearly 20% in a year.

In June 2024, the government announced sentencing reform, including the introduction of a new aggravating factor to address offences against sole-charge workers and those whose homes and businesses are interconnected (such as those in petrol stations and dairies).

In July 2024, the government announced the formation of a new advisory group to provide specific proposals to address urgent challenges in retail crime.

As well as “traditional” offending in the workplace (such as stock theft), it seems that employers are increasingly keen to learn more about how to:

• protect staff and others affected by externally-driven crime, such as customer violence; and
• navigate criminal proceedings during the employment relationship (ie, where an employee is charged with an offence).

Health and safety considerations

The Health and Safety at Work Act 2015 (HSWA) governs employers’ management of risks to both physical and psychosocial health/safety.

A duty holder must eliminate risks to health and safety, so far as is reasonably practicable, and if not reasonably practicable to eliminate, to minimise those risks so far as is reasonably practicable.

The primary duty of care requires a person conducting a business or undertaking (PCBU) to ensure, so far as is reasonably practicable, that:

• the health and safety of workers; and
• the health and safety of other persons is not put at risk from work it carries out.

PCBUs are expected to identify reasonably foreseeable hazards/ risks and to manage them appropriately in accordance with HSWA duties. There are also overlapping implied terms in an employment relationship to provide a safe working environment.

While retailers are likely to face crime issues most often, employers in other industries would also be well served by giving careful thought to the impact of crime on their workplace and what steps they should be taking to protect their people, having regard to the HSWA. Penalties, including personal criminal liability, for noncompliance with the HSWA can be significant. An employer’s obligations to protect its staff from health and safety risks extend to taking proactive action to prevent this.

A recent Employment Court decision discussed these duties (Wiles v The Vice-Chancellor of the University of Auckland [2024] NZEmpC 123). The court considered an employer’s health and safety obligations to an employee who was regarded as being at increased risk of abuse and harassment due to public commentary she had provided on covid-19 issues. The court acknowleged that the university took specialist advice on its health and safety obligations and various steps to protect the employee, but found that the university’s response was insufficient and too slow. Key criticisms included:

• no well-developed strategy for dealing with the issues that arose, particularly because harassment was a known risk for academic staff, especially women; and
• a failure to appreciate the potential and increasing scale of the issue. The expectation was that the university should be far more proactive and expansive, an approach which would have included implementing a robust plan, informed by expert assistance, to support the employee in her work.

Navigating the interplay between crime and employment

When navigating criminal proceedings intersecting with the employment relationship, key considerations include whether the nature of the offending poses risks to the wider workforce or others, and whether the charge/ conviction should result in employment consequences for the employee. Particular attention should be paid:

• where an employer is asked for input during sentencing; and
• in the context of any formal employment process undertaken with an employee, which must comply with the provisions of the Employment Relations Act 2000 and consider the rights to a fair trial and to silence. Employers should be mindful that the overarching duty of good faith applies in any formal employment process, even if an employee has been charged and/ or convicted of an offence, as does the requirement for any adverse action, including dismissal, to be justified on both substantive and procedural grounds.

Sarah McFetridge and Rebecca Compson are senior associates at Bell Gully ■