Working from home not a right in South Africa: legal experts

South African legal experts are debating flexible work arrangements and whether employees have a right to them.

The work-from-home debate is not unique to South Africa; workers across the globe are seeking a new approach to how business is done.

Bloomberg reported that the Dutch parliament had approved legislation to establish work-from-home as a legal right, making the Netherlands one of the first countries to grant remote working flexibility by law.

The legislation was approved earlier this week; however, it still needs the go-ahead from the Dutch senate. The law forces employers to consider employee requests to work from home as long as it is operationally possible.

Speaking to CapeTalk, Hugo Pienaar, a director at Cliffe Dekker Hofmeyr’s employment law practice, said the practice is seeing a major shift in the number of queries around employers seeking advice on the work-from-home debate.

Pienaar said that the debate arose out of Covid-19 and through the shift toward the fourth industrial revolution. He added that South Africa differs from the Netherlands when it comes to the legislative background surrounding work.

In the current framework, when it comes to work-from-home as a legal right in South Africa, an employment contract’s terms and conditions take precedent, Pienaar said.

The starting point is the contract of employment that has been signed – it is not a question of whether or not it is reasonable for a person to work from home, he said.

“You have a contract of employment, and the employer has a prerogative and can ask you to work from the office; of course, operationally, it is sometimes impossible to work from home.”

He added that on top of the contract of employment, there is a history of an employee working at the office, which has become an entrenched right – working from home was only a temporary measure to protect the company and its employees from the effects of Covid-19.

Just as has been the case with employees who refused to submit to mandatory vaccine policies in the workplace, Pienaar said the employer’s position on work-from-home policies would most likely be favoured the majority of the time.

The way forward

For companies wanting to move to a hybrid or work-from-home model, it is necessary to adjust employment policies to existing labour law and employee contracts, says Abigail Butcher, an associate of employment law at Cliffe Dekker Hofmeyr.

A distinction between whether an employee’s place of work is determined through workplace practice or terms and conditions of an employment contract needs to be given specific consideration, added Butcher.

“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, and if consent is not reached, it constitutes a unilateral change to the employee’s employment conditions.

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Working from home not a right in South Africa: legal experts