December 3, 2021

The laws around working from home that every South African should know

As South Africa continues to cope with the pandemic, employers should make agency selections about whether or not to return to the workplace, transfer completely to distant working or intention for one thing in between.

If and once they do make such selections, employers would do effectively to recollect that any office modifications they make should be finished throughout the confines of the legislation, says authorized agency Bowmans.

“Although a move to remote or home working is generally considered a win by many employees, 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,” the agency stated.

“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 readily have at home.”

Bowmans stated that there are two primary authorized rules employers would wish to contemplate when transferring in the direction of making distant working a everlasting association:

  • Any desired modifications have to be carried out pretty,
  • Adjustments have to be carried out in accordance with relevant laws – which don’t cease on the workplace door.

The legislation reaches past the standard office

Employers want to contemplate their well being and security obligations in the direction of workers when it comes to the Occupational Well being and Security Act, which requires an employer to, amongst different issues, do every little thing fairly practicable to guard workers’ well being and security within the office.

“In this regard, the employer’s obligations to ensure the health and safety of its employees extend to where the employee is working outside of the conventionally understood workplace, including the home office,” Bowmans stated.

“Similarly, loss of vital data and intellectual property and breaches of security may have far-reaching consequences for a business whose employees work remotely.”

The agency warned that there are extra obligations with the Safety of Private Data Act (POPIA) now in full drive, and there will probably be additional obligations as soon as the graduation date of the Cybercrimes Act is introduced – each of which will probably be of explicit significance for distant working.

“Then there’s the Basic Conditions of Employment Act, regulating 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.”

Usually, seek the advice of first

As a basic precept, a contract of employment, like some other contract, is consensual and so any contractual modifications have to be agreed to by the events to the contract, Bowmans stated.

“An employer transferring in the direction of new post-pandemic working modes would due to this fact, typically, must seek the advice of with its workers earlier than making any modifications 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.”

Bowmans stated that nature and extent of such consultations would rely upon components corresponding to the scale of the workforce being impacted, the character of the work the workers are doing and, most significantly, the character and general affect the proposed modifications would have on workers’ present phrases and situations of employment.

The overriding precept is that any modifications should be carried out in a fashion that is each substantively and procedurally honest, it stated.

“If consultations are required in respect of modifications to working situations, such consultations would both be with the workers themselves or, if the employer’s workforce is unionised, with union representatives.

“In a unionised working environment, an employer would also need to ensure that it complies with its obligations in terms of any collective bargaining agreement regulating working conditions.”

With regards to implementing the specified modifications, employers should guarantee that these are carried out pretty throughout the board and that there isn’t a unfair discrimination, the agency stated.

“If there may be any differentiation of working situations, the employer should be capable to justify these primarily based on operational causes – for instance, the place just some are capable of work remotely, and others are required to return into the office because of the nature of the work being finished.

“Employers who wish to change their entire operations 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.”

The place to start out 

Working from home has execs and cons for employers and workers alike and is prone to develop into a distinguished working mannequin in a post-pandemic world, Bowmans stated.

“A superb place to start out in bringing the advantages of distant working to the fore whereas managing the challenges that include them, is for employers to look to creating any required modifications to the employment contracts, in addition to creating a distant working coverage to manage new working preparations.

“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 applicable law.”

  • Commentary by Lusanda Raphulu (head of employment and advantages) and Sian Gaffney (affiliate) at Bowmans, South Africa.

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