Over the past year or two, there's been a growing push from employers to reduce the number of days that employees work from home to ending the hybrid-working model in its entirety.
Remote working which really came into full swing during the COVID-19 pandemic is slowly becoming a distant memory for employees. Employers are now requiring all employees to return to the office on a full-time basis. With this, come changes to internal policies and/or contractual shifts. But does this approach align with applicable labour legislations, and does it make business sense?
Whether an employer can lawfully require a return to office hinges on the employment contract. If the contract specifies an office as the primary place of work, a recall is generally within the employer's rights. But, where remote or hybrid working has become an established practice and contractual terms were formally varied during the pandemic and/or employees commenced employment during the pandemic on a remote basis, a unilateral change can amount to a breach of employment. Employers are faced with two options, either change their internal policy or the contractual terms dealing with remote working conditions.
Policy Changes
In the first instance, where the employer's office is the primary place of work, remote working would usually be regulated by practice or in terms of the employer's internal policy. If this is the case, the employer can call all employees to return to work on a full-time basis by amending and/or terminating the applicable policies.
Contractual Changes
In the second instance, where employees' contractual terms were amended during the pandemic or where an employee entered into an employment relationship with an employer on a remote-working basis, the employer cannot unilaterally change the terms of the employment contract without the consent of the employee. Employers may need to justify a return on grounds of productivity, collaboration, or supervision. But given that employees have tasted flexibility, many won't give it up without resistance. If employees refuse to consent, employers are required to engage meaningfully with the employees within the paramount of section 189 of the Labour Relations Act. If no consensus can be reached during the section 189 process, the employer can elect to proceed to retrench employees, but it will have to show that on its operational requirements employees are required to work from its designated office. A return-to-office strategy developed in collaboration with employees is more likely to stick and will less likely land the employer at the CCMA or Labour Court.
Before implementing a full return to office-base work, employers should first review "why" they want employees back and "what" office time actually achieves. The goal should not be the "presence" of the employees, but should focus on their performance. Employers are also advised to determine which process should be followed, as failing to follow the correct procedure could land them at the CCMA or Labour Court. Employers are therefore encouraged to seek legal advice before implementing a full return to office-base work.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
