The way in which we perform our work has changed significantly over the course of the last 18 months. Many employees who used to be office workers now work remotely. As South Africa has recently moved to Level 1 lockdown, employers should start looking to the future and consider whether employees are required to go back to the office or move to a remote working environment on a permanent basis. Many employers might even opt for a solution in between and adopt a hybrid working model.

When employers make decisions surrounding workplace changes, it is crucial that changes are done within the boundaries of the law. Although past experience tells us that certain employees are able to effectively work from home, it is not to say that these employees automatically earn the right to work from home on an indefinite basis. In general, most employees consider working from home as a win, however the employer should pay attention to what implications a working from home arrangement has on issues such as health and safety, intellectual property, information security, and travel or car allowances, just to name a few.

When contemplating workplace changes, employers should ensure that changes are implemented fairly and with particular cognisance of applicable laws relevant to their unique situation.

For instance, the Occupational Health and Safety Act requires an employer to, among other things, do everything reasonably practicable to protect the health and safety of their employees in the workplace. Although the employee also carries responsibility in this regard, employers need to remain aware that their obligation in terms of the Health and Safety Act is still applicable even when employees work from home, and that such obligation extends to any place where the employee is working, including a home office.

The provisions of the Basic Conditions of Employment Act also apply to employees who work remotely, in the same manner that the legislation would apply should the employee work in an office. Compliance with matters such as working hours, annual leave, sick leave etc. must therefore be considered when making decisions surrounding working from home arrangements.

Employers that are considering making changes to the workplace should keep in mind that in most cases, they will need to consult with their employees on such changes. It is further important to note that an employment contract cannot be changed unilaterally, and therefore needs agreement between all the parties to the contract. In certain circumstances the employer will not be required to engage in extensive consultations, however it is advised that expert advice is obtained before making any final decisions.

Generally, the nature and extent of consultations would depend on factors such as the nature of work, the size of the workforce, and the implication or overall impact of the proposed changes on the employee’s current terms and conditions of employment. Changes made to the working conditions should stick to the principle of substantive and procedural fairness.

When implementing changes to the workplace, the employer should ensure that changes are implemented equally across the board, so as to prevent any unfair discrimination from taking place. Should it happen that there is differentiation of working conditions, the employer should be able to justify these changes based on their operational requirements. For instance, when certain employees are allowed to work remotely whilst others are required to work from the office, the employer should be able to demonstrate why the nature of the specific role requires such differentiation.

There are employers that may very well consider moving to a majority remote working structure in a post pandemic world. Should this be the case, such employers need to pay attention to compliance matters and applicable laws relevant to them. In this regard, the health safety of employees, data security, intellectual property and many others play a role.

Regardless of the decision made by employers in the post pandemic world, employers are best advised to revisit their existing employment contracts and policies for a full review, as well as have a risk assessment done, with appropriate changes implemented to safeguard their business and mitigate risks from arising. 

Invictus Group is able to assist companies with the necessary advice so that all procedures and legalities are complied with. Contact Invictus Group on 0861 737 263 for us to assist you.