Bosses ending work-from-home in South Africa – what the law says

Legal experts have warned that employers cannot simply end remote work and order staff back to the office—but it depends on how work-from-home was initially set out, how it was written into contracts.

Employees in several key sectors—including banking, financial services and even in some government agencies—have been given orders to return to the office.

This reflects a broader global trend of the ‘work-from-home’ lifestyles that emerged during the Covid-19 pandemic coming to an end.

Further evidence of this happening in South Africa in particular was recently demonstrated in traffic volumes, drive times and fuel spend data showing a return to levels seen before the pandemic.

However, many employees have asked whether it is legal for an employer to just order them back to the office.

According to Yvonne Mkefa, Director in the Employment Law practice at Cliffe Dekker Hofmeyr, the answer is a bit more complex than a simple yes or no.

Mkefa noted that remote work and work-from-home are not new concepts that suddenly emerged during the Covid-19 pandemic.

While the pandemic made it far more common and in many cases an necessity, these styles of working existed long before.

That said, there is no specific provision for remote work in South Africa’s labour laws, including the Basic Conditions of Employment Act (BCEA) and the Labour Relations Act (LRA).

Instead, provisions for remote work, hybrid work and virtual work are determined when negotiating and signing contracts.

“As a rule, employers are allowed to make changes in the workplace—but they must do so lawfully and fairly,” Mkefa said.

What the law says about work-from-home

Mkefa said businesses must follow the legal framework governing remote work and the extent of employer’s authority when requiring a return to office-based work, or lack thereof.

While there is no specific legislation governing remote working, the LRA, BCEA and employment contracts determine where employees work.

Further, these will also determine whether requiring employees to return to the workplace is reasonable and lawful.

According to the BCEA, employers must provide their employees with written particulars of employment, including particulars of their place, or places, of work.

If a contract of employment stipulates that the place of work is ‘remote working’, the employer is bound to this.

“As such, without consent, a demand by the employer for the employee to return to ‘working from an office’ would constitute breach of contract and a unilateral amendment of terms and conditions of employment,” Mkefa said.

On the other hand, where the contract of employment specifically retains the right for the employer to determine the place of work, the employer has a contractual right, and can unilaterally impose such place of work on the employee.

But even if a contract allows bosses to change the place of work, this still has to be done fairly, the legal expert said.

For example, an employer cannot change the place of work for only some, and not all, employees based on race or for an ulterior motive.

“While the LRA does not expressly regulate the place of work, it infuses the employment relationship with equity, including fairness,” Mkefa said.

“When employers want to make changes in the workplace, employees—or their representatives—must be engaged by way of either consultation or negotiation.”

Employers will want to adhere to this so as not to breach contracts.

The matter can become even more complex if working from home is considered a benefit. Employers need to act fairly in relation to this as well.

“Even where a benefit is not a contractual term and condition of employment, consultation ought to be resorted to by an employer when seeking to effect a change to a workplace benefit or practice,” Mkefa said.

The key takeaway is that bosses can order workers back to the office if they have the contractual right to do so—but this must be done fairly.

If contracts have work-from-home written in, an order back to the office would be a breach of contract, and would require consent and negotiation with employees.