What The Law Says: Flexible and remote working for employers

What The Law Says: Flexible and remote working for employers

Although the new hybrid working trend of working partly at office, partly at home has had positive effects on business productivity, employers must be aware of the law that applies to these new working arrangements in order to avoid penalties and even conviction for non-compliance.

The Hybrid Working Trend

A new way of working has emerged following the Covid-19 Pandemic, [1] partly in the office and partly at home, with more flexibility and with increased autonomy for employees to decide their own working hours. In a recent survey conducted by Mercer, 90% of employers confirmed that productivity stayed the same or improved with employees working remotely, and an employee’s average work day was three hours longer [2]. Great for productivity, right?
Maybe! But despite the benefits and advantages of remote and flexible working, South Africa’s labour legislation does not cater for this hybrid way of working [3]. There are still some grey areas and uncertainty about how certain aspects of remote and at-home working will be regulated to ensure fair labour practices, and compliance with the Constitution and privacy laws. For example, if an employee is working from home how does the law regulate the processing of personal information, protection of company information and the employee’s health and safety? So whether you are considering or have already allowed for remote and more flexibility in working hours, here is a look at some of the most important legal considerations to keep in mind regarding the hybrid flexible, remote or at-home working trend.


Fair Criteria

Firstly, you need to use fair criteria to decide which employees may work remotely or at home and which employees need to report to the office daily. This will largely be dependent on the type of work and the employee’s position. For example, a manager or director could easily work from home while a receptionist or cleaner cannot work from home because of the job requirements. So the criteria used to decide who can and who can’t work remotely and flexibly, must be fair, reasonable and just.[4] This means the criteria must not be arbitrary and can be justified on the basis of your business operation needs, and the position and type of work performed by the employee.
Not only must the criteria be fair and justified on the basis of business operations, but the additional expenses that an employee may run up, whether this is traveling into the office daily or setting up a home office, must be properly managed. The criteria for deciding what an employee can be reimbursed for must be fair and just, especially given the current increase in fuel costs, as well as the implications of load-shedding – will someone need a backup power source if they are working remotely or from home?
So it is important to establish and provide criteria that are fair and reasonable to all employees and will clearly define how flexible and autonomous employees can be in determining their own work arrangements and hours. This will help to remove any risk giving rise to allegations of unfair labour practices and unfair discrimination.


Protecting Confidentiality and Personal Information

The importance of protecting and safeguarding the personal and confidential information of clients from unauthorised access and use has increased in this past year. The deadline has passed and all companies are now required by law to comply with the Protection of Personal Information Act (POPIA). Non-compliance with the law has many consequences, not least of which is your reputational damage and the costs that result from non-compliance.
While protecting and securing your clients’ personal and confidential information is very important, you also need to consider the situation of an employee working remotely or at home and their access to sensitive company information, whether it is data, trade operations or financial matters. The risk of unauthorised access or leaked confidential business information significantly increases where other members of the employee’s family are also working from home, or where an employee might be making use of free Wi-Fi or other unsecured networks, such as working from a coffee shop or public place.
You should use your existing IT security measures to ensure there is sufficient security to protect client and business information from unauthorised access if an employee is working remotely or at home. If you don’t do this it might result in penalties or personal liability for damages resulting from a data breach in terms of POPI, the Companies Act and South African Labour laws.[5]


Occupational Health and Safety

The Occupational Health and Safety Act (OHSA) regulates the health and safety of people at work, and makes it the employer’s responsibility to provide and maintain a safe and healthy working environment for their employees.[6] The definition of “workplace” in OHSA, extends to “any premises or place where a person performs work in the course of their employment” and consequently includes remote or at-home working spaces.[7]
What this means is that you have an obligation as an employer to ensure the home or place where an employee is working remotely is up to standard and does not risk or compromise the employee’s health or safety.
This entails having to carry out risk assessments, inspections and approval of remote or at-home working areas and arrangements, failing which you may be found guilty of an offence and face a fine of about R50 000 per violation, or even imprisonment with a criminal conviction if an employee is injured due to a “workplace” incident.[8]
So when you are considering flexible remote or at-home working arrangements, also consider the logistics and time it will take to conduct and manage the assessments and inspections of these “workplaces”.


KPI and Performance Review, Monitoring and Disciplinary Reviews

The Labour Relations Act (LRA), provides strict rules and procedures in regard to disciplinary action and dismissals and most employer disciplinary policies are intended for in-office misconduct and not where an employee is working from home or remotely.[9] You should therefore look at the flexibility of your current disciplinary rules, policies, procedures and codes. Identify how you will monitor employee performance working remotely or at home and how you will do this without infringing on their right to privacy. However, it’s not like you can demand that your employees keep their Teams Camera on during working hours or that you can accurately track their activity remotely. Given the loophole trends, employees across the globe are sharing how to make it seem that they are working on their computer when in actual fact they have attached their computer mouse to the roaming round Roomba vacuum cleaner, cat or hamster!


Employment Contract Amendment

Then lastly, perhaps the most important thing you need to consider regarding the lawful management of flexible remote or at-home working, is whether the current employment contract you have with your employees allows you to regulate a flexible and autonomous arrangement regarding working hours and work location.
The law doesn’t allow you to make unilateral changes to an employment contract[10] which means that any changes you want to make to an existing employment contract, must be done in full consultation with the employee concerned in order to get their consent.
So, if you want to make changes to an existing employment contract to adapt to a new flexible hybrid working arrangement, you should consult with the employee(s) concerned and if applicable, with representatives of the trade union. If there is a collective agreement in place, the changes must comply with any obligations that you as the employer agreed to.[11]


Conclusion

Even though the new hybrid work arrangement which allows for remote or at-home work, and increased flexibility and autonomy for employees, positively impacts on business productivity, as aEven though the new hybrid work arrangement which allows for remote or at-home work, and increased flexibility and autonomy for employees, positively impacts on business productivity, as an employer you should always be mindful of what the law requires. Provide clear and fair criteria to justify differentiating between employees who can – or cannot – work remotely or at home. The employment contract must also provide for appropriate protection of personal client and business information, and for the monitoring of work performance and disciplining of employees out of office. Take steps to ensure you have dealt with your occupational health and safety obligations for remote working or at-home employees. Remember that any changes to be made to current employment contracts to allow for hybrid working, must be agreed to by the employee and their representative trade unions if this applies, while also complying with any collective bargaining agreements that may be in place.

 

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[1]Annon. Business Tech – 27 December 2021 https://businesstech.co.za/news/business/545052/south-africas-office-and-work-from-home-plans-have-changed-for-2022/ (Last accessed 30 June 2022) 

[2] L Mason, K O’Rourke, M.A Sardone and K Bravery  “ The New Shape of Work is Flexibility for All” Mercer Marsh & Mclennan Companies 2021 (https://www.mercer.us/content/dam/mercer/attachments/private/us-2020-flexing-for-the-future.pdf

[3] P Rogers & N Adaber “ Employers must carefully navigate the legal maze of remote working during Covid Pandemic” 30 September 2021 (https://www.dailymaverick.co.za/article/2021-09-30-employers-must-carefully-navigate-the-legal-maze-of-remote-working-during-the-covid-pandemic/#:~:text=work%20from%20home.-,Remote%20working%20is%20not%20specifically%20regulated%20in%20terms%20of%20any,as%20necessitated%20by%20Covid%2D19. Accessed 03/07/2022) 

[4] P Rogers & N Adaber “ Employers must carefully navigate the legal maze of remote working during Covid Pandemic” 30 September 2021 (https://www.dailymaverick.co.za/article/2021-09-30-employers-must-carefully-navigate-the-legal-maze-of-remote-working-during-the-covid-pandemic/#:~:text=work%20from%20home.-,Remote%20working%20is%20not%20specifically%20regulated%20in%20terms%20of%20any,as%20necessitated%20by%20Covid%2D19. Accessed 03/07/2022) . Section 6(2) of the Employment Equity Act provides that it is not deemed unfair discrimination where one should distinguish, exclude or prefer any person on the basis of an inherent requirement of a job

[5] P Rogers & N Adaber “ Employers must carefully navigate the legal maze of remote working during Covid Pandemic” 30 September 2021 (https://www.dailymaverick.co.za/article/2021-09-30-employers-must-carefully-navigate-the-legal-maze-of-remote-working-during-the-covid-pandemic/#:~:text=work%20from%20home.-,Remote%20working%20is%20not%20specifically%20regulated%20in%20terms%20of%20any,as%20necessitated%20by%20Covid%2D19. Accessed 03/07/2022)

[6]P Rogers & N Adaber “ Employers must carefully navigate the legal maze of remote working during Covid Pandemic” 30 September 2021 (https://www.dailymaverick.co.za/article/2021-09-30-employers-must-carefully-navigate-the-legal-maze-of-remote-working-during-the-covid-pandemic/#:~:text=work%20from%20home.-,Remote%20working%20is%20not%20specifically%20regulated%20in%20terms%20of%20any,as%20necessitated%20by%20Covid%2D19. Accessed 03/07/2022)

[7]P Rogers & N Adaber “ Employers must carefully navigate the legal maze of remote working during Covid Pandemic” 30 September 2021 (https://www.dailymaverick.co.za/article/2021-09-30-employers-must-carefully-navigate-the-legal-maze-of-remote-working-during-the-covid-pandemic/#:~:text=work%20from%20home.-,Remote%20working%20is%20not%20specifically%20regulated%20in%20terms%20of%20any,as%20necessitated%20by%20Covid%2D19. Accessed 03/07/2022). Although the question as to whether “ workplace” is statutorily deemed to extend to an employee’s home is a debatable,   with some arguing against such an interpretation  given the court’s interpretation of “ workplace” provided in Section 213 of the LRA as provided in the case of Association of Mineworkers and Construction Union and Others v Chamber of Mines of South Africa and Others (2017) 7 BLLR 641, (see  S July & N Mathebula “ Working from home but are you really at work?” (2 September 2022) accessible https://www.werksmans.com/legal-updates-and-opinions/working-from-home-but-are-you-really-at-work/ (last accessed 03/07/2022)),  The fact that the said case dealt with Trade union representation and given the broad definition afforded to “ workplace” in South African Labour Legislation, it is generally accepted that “ workplace” would include an employee’s home or any remote area from which they are performing work in the scope of their employment.

[8] I van de Wall “ Implications of Occupational Health and Safety Act Non Compliance” SERR Synergy (2 February 2018) accessible https://serr.co.za/implications-of-occupational-health-and-safety-act-non-compliance (last accessed 08/07/2022); L Woodburn “ The OHS Amendment Bill enforces stricter health and safety requirements for South African business” The People Factor Magazine (26 January 2022) accessible at https://peoplefactor.co.za/the-ohs-amendment-bill-enforces-stricter-health-and-safety-requirements-for-south-african-business/ (last accessed 08/07/2022)  

[9] M Ntlhoro, N Raseote & P Le Roux “ South Africa: Regulating Employee Conduct While Working Remotely” (14 April 2022) accessible at https://www.lexology.com/library/detail.aspx?g=3d2a47c3-be30-4045-84fa-79eeddc10efd (last accessed 03/07/2022)

[10] J Meijer & J Reed “ South Africa: remote working issues for employers” Herbet Smith Freehills (19 October 2021) accessible at https://hsfnotes.com/employment/2021/10/19/south-africa-remote-working-issues-for-employers/ (last accessed 03/07/2022). First published by the Business Day: https://www.businesslive.co.za/bd/opinion/2021-10-18-jacqui-reed-many-issues-to-consider-in-new-work-scenarios/ ; M Bechard “ Are your work-from-home policies in accordance with the law?” (28 October 2021) accessible https://www.moonstone.co.za/are-your-working-from-home-policies-in-accordance-with-the-law/ (last accessed 03/07/2022)  

[11]M Bechard “ Are your work-from-home policies in accordance with the law?” (28 October 2021) accessible https://www.moonstone.co.za/are-your-working-from-home-policies-in-accordance-with-the-law/ (last accessed 03/07/2022)