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ADVICE: Remote working challenges to traditional employment contracts

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Before the COVID-19 pandemic accelerated the transition to remote working capabilities, an employment contract would often refer to an employee’s ‘place of work’. At such ‘place of work’, the employer and employee both had obligations to fulfil, which were regulated by legislation and practice reflected in the employment contract.

However, the move to a more agile or remote working environment provides challenges to the traditional social contract legally, particularly in terms of the current Basic Conditions of Employment Act (BCEA) 1997, as well as the responsibilities of both employer and employee. Many employers may have to amend and/or introduce new policies to regulate employees who are now working remotely.

Possible challenges to existing social contracts

Remote working can present issues when following the law in terms of particulars of employment in terms of the BCEA. Specifically, the ‘place of work’, and, where the employee is required or permitted to work, which needs to be identified and indicated in the contract.

The flexibility of working from home can create an ‘always-on’ culture, where employees find it difficult to unplug from technology and may work longer hours than at the traditional office. Consideration needs to be applied to the concept of ‘ordinary hours of work’ and the regulation of overtime for employees earning below the threshold and employees who are contractually entitled to overtime.

New policies for the usage of remote working tools, such as laptops or access to a VPN, and how employees must deal with confidential and privileged company information when working remotely may need to be introduced. The wellbeing of employees (including alcohol and substance abuse), dress code, the disciplinary code and procedure, such as misconduct in light of the new policies and protocols, and the restructuring of benefits may all need to be amended under the new working regime.

Other challenges to existing employment contracts include how companies manage, maintain, and measure employees’ work standards while working from home or remotely. Employers may need to upskill employees and provide tools and equipment, so that performance standards are met during remote operations. There should also be a proper understanding of the process that an employer must follow when the employee’s performance is below the required performance standard, including the code of good practice on incapacity in a remote working situation.

Making changes to employment contracts

Before an employer contemplates any changes to an employee’s contract of work, they should engage with registered trade unions, employee representatives and/or the employees to reach an agreement.  Even in circumstances where an employer may have a contractual right to change certain terms and conditions of employment, it is still always good management to consult on such matters.

If an employee’s position becomes redundant, for example if the job at the traditional place of work no longer exists, it could result in retrenchment in terms of operational restructuring and/or the employer’s operational requirements and the payment of severance pay if applicable. This line of action is not always in the best interest of both parties, in that the employee will potentially be unemployed and the employer will potentially lose employees with key expertise and knowledge. Therefore, the parties ought to try and reach a compromise where possible.

As remote working looks like it is here to stay for the long term, companies are advised to review their employee contracts as well as those with collaborators, consultants, and other remote workers to ensure that they can enhance business value and reduce significant risks. Seeking legal advice on modifying policies and benefits for remote working can make this transition much easier.

Darren Olivier, Lita Miti-Qamata, Aslam Patel and Thandeka Mhlongo (Adams & Adams)

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