South African companies planning to move to a hybrid or remote working plan on a full-time basis will need to ensure that there policies are aligned with both existing labour laws and employment contracts, says Abigail Butcher, associate in the Employment Law practice at Cliffe Dekker Hofmeyr.
Butcher said specific consideration needs to be given to whether their employees’ place of work and the working arrangements are determined through workplace practice, or whether they are incorporated as terms and conditions of employment in employees’ contracts.
“If the employees’ working arrangements including place of work are set out in the contract of employment, this may require that any change to the working arrangements be affected with the employees’ consent.
“Failure to secure consent could result in a unilateral change to the employees’ terms and conditions of employment,” she said.
Butcher said that the change in working arrangements also gives rise to other legal considerations such as forcing employees into a system that they may not have signed up for.
“If the employer subsequently dismisses an employee for failing to adhere to the new hybrid/remote working model, this may expose the employer to a claim for an automatically unfair dismissal,” she said.
A red herring
According to Sarah Rice, chief people officer at sales management firm, Skynamo, the binary choice between working from home or returning to the office is something of a red herring.
“The binary argument of remote vs in-office is saying that one kind of time is more important or better than another. But this just isn’t true. We need both,” she said.
“What we need to be asking ourselves and each other is – what kind of time is best to help us reach our objectives? What does this business need more of? And what do I need to get it done? Then we can start to design a way of working that gives people the flexibility to choose how to get the work done.”
Rice said that following a hybrid working model is the way forward, even if it won’t happen overnight – but companies need to start having this conversation sooner rather than later, including their employees in the discussion, if they want to return to a more productive dynamic.
“Hybrid work environments promise workers flexibility in scheduling work, but what people really need is autonomy, mastery and purpose to feel fulfilled. Teams need trust, alignment around a common goal and open communication to be effective,” she said.
“And to be honest, most of the time the working world is designed to ignore all of these things regardless of whether you are in the office or fully remote. It comes down to relationships and how we build them.”