Are your working-from-home policies in accordance with the law

Are your working-from-home policies in accordance with the law?

Although many employees consider it to their benefit to switch to remote working, it could have implications for traditional employee benefits such as car and travel allowances, as well as for information security, intellectual property, health and safety, and other compliance matters.

This is according to Lusanda Raphulu, Bowman’s head of Employment and Benefits, and Sian Gaffney, an associate at the law firm.

Employers will also need to grapple with how to deal with personal expenses, such as internet access, incurred by employees as a result of working remotely and how to deal with issues of equipment that employees may not have at home, they say.

Raphulu and Gaffney say that employers who want to make working from home permanent need to consider two main legal principles: any desired changes must be implemented fairly, and the changes must be in accordance with the applicable laws, which do not stop at the office door.

Make changes by mutual agreement

As a general principle, Raphulu and Gaffney say a contract of employment is consensual and so any contractual changes must be agreed to by the parties to the contract.

An employer moving towards new post-pandemic working modes would therefore (in most cases) need to consult with its employees before making any changes to their employment contracts. “There are, however, exceptions to this general rule, and employers may not always be required to engage in extensive consultations in respect of the desired changes.”

“The nature and extent of such consultations would depend on factors such as the size of the workforce being impacted, the nature of the work the employees are doing and, most importantly, the nature and overall impact the proposed changes would have on employees’ current terms and conditions of employment. The overriding principle is that any changes ought to be implemented in a manner that is both substantively and procedurally fair.”

If consultations are required in respect of changes to working conditions, such consultations would be with the employees directly or their union representatives, Raphulu and Gaffney say. In a unionised working environment, an employer would also need to ensure that the changes comply with its obligations in terms of any collective bargaining agreement.

“Employers should ensure that the changes are implemented fairly across the board and that there is no unfair discrimination. If there is any differentiation of working conditions, the employer must be able to justify these based on operational reasons (for example, where only some are able to work remotely, and others are required to come into the workplace because of the nature of the work being done).”

Employers who want to change their entire operation to a remote working structure should also be mindful of employees who may not have the means, infrastructure or a conducive environment to effectively perform their services from home (despite it being possible).

Laws that come into play

Even if employees are overwhelmingly in favour of making working from home a permanent feature, any changes to terms and conditions of employment must be done in accordance with the applicable laws. Raphulu and Gaffney say employees need to consider:

  • The Occupational Health and Safety Act, which requires an employer to, among other things, do everything reasonably practicable to protect employees’ health and safety in the workplace. The employer’s obligations in this regard extend to where the employee is working outside of the conventionally understood workplace, including the home office.
  • The Basic Conditions of Employment Act, which regulates working hours, overtime, annual leave, sick leave and the like, all of which need to be considered and applied whether employees work in the office or at home.

The loss of vital data and intellectual property and breaches of security may have far-reaching consequences for a business whose employees work remotely. There are additional obligations with the Protection of Personal Information Act, and there will be further obligations once the commencement date of the Cybercrimes Act is announced.

Develop a policy

Working from home has pros and cons for employers and employees alike and is likely to become a prominent working model in a post-pandemic world.

“A good place to start in bringing the benefits of remote working to the fore while managing the challenges that come with them is for employers to look to making any required changes to the employment contracts, as well as developing a remote working policy to regulate new working arrangements.”

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