Flexible working practices: Balancing business needs and employee preference

Prior to the COVID-19 pandemic and the lockdown regulations that followed, most workplaces implemented traditional norms in relation to regulating working hours. Employees were expected to report to work at a certain time, were entitled to a meal break, and exited the workplace at the end of the workday.

29 Apr 2024 3 min read Employment Law Alert Article

At a glance

  • In the recent case of O' Connor v LexisNexis (Pty) Ltd (P18/24) [2024] ZALCPE 11, the Labour Court considered, on an urgent basis, whether the refusal to appoint an individual on the basis of them having a criminal record amounted to unfair discrimination.
  • Regarding the claim of repudiation and specific performance, the court found that there would be greater prejudice towards the applicant if urgent relief were not granted.
  • It further concluded that the retraction of the employment offer by the respondent solely based on the applicant having a criminal history constituted unfair discrimination.

The aftermath of the COVID-19 lockdowns has compelled employers to reconsider these norms and to find new ways of establishing and sustaining productivity in what we have come to understand as “the new normal”. Many companies have implemented various work flexibility models, such as hybrid working, in order to ensure that employees, while restricted, can continue to meet the companies’ objectives.

Years after the pandemic, employers are still grappling with flexible working arrangements, but for different reasons. Now, in corporate South Africa, employees are requesting more flexibility while many employers are identifying a need to return to the office.

What does flexible work look like?

The concept of flexible work is fairly new and fast developing. What we do know is that it has a much broader meaning than remote work, which is an example of flexible work. Flexible work can be anything outside of the traditional 8 hour workday or 45-hour work week; it could entail remote work, sharing job duties with colleagues, working from abroad, or even working on a flexi-time basis where employees determine the start and end time of the workday.

One of the advantages of flexible working arrangements is that they allow employees to curate a better work-life balance for themselves. Employees are afforded time to meet their family’s needs and personal obligations, or are even allowed to take breaks in order to combat what Kathleen Hogan, Executive Vice President for Human Resources and Chief People Officer at Microsoft, has termed a “human energy crisis”. This term describes the increasing levels of burnout in corporate environments. Despite the benefits that flexibility models may present, it is important to be mindful that these benefits are not available to all employees in corporate South Africa and must be considered against the various benefits that in-office work presents.

Among such benefits is the ability to form and build good relationships in the workplace. The importance of face-to-face time with colleagues cannot be understated; it allows for better communication and coherence, which go a long way in helping to form lasting professional relationships. Another possible benefit is the opportunity for better mentoring, especially in the case of junior employees. Contact time with mentors affords employees the necessary training and development that remote working, for example, may not be able to offer. A third benefit of office time is visibility.

What is clear is that there are significant benefits to flexible work and the traditional work model and these must be weighed against each other. We have also seen that employers and employees alike are struggling to find a balance between retaining flexibility and maintaining productivity.

The law

The trend towards flexibility can be seen on an international level. Australia’s Fair Work Legislative Amendment (Closing Loopholes No.2) Bill of 2023, for example, will establish the right to disconnect into Australian law. This affords employees the right to refuse to engage in work or work-related communication outside of working hours or at home.

In the South African context, however, neither the Basic Conditions of Employment Act 75 of 1997 nor the Labour Relations Act 66 of 1995 provides for the right to disconnect or to work remotely. Employers should not expect any legislative changes any time soon.

For now, we recommend that flexible working arrangements be regulated in terms of policies. Employers should take proactive steps to discuss and decide what is practical within their environment and then clearly communicate their expectations to the staff who are impacted. Points to consider include availability, communication outside of working hours (including contact by third parties such as clients), connectivity, the impact of loadshedding and online or remote meeting etiquette. What these requirements will look like will depend on the circumstances of the employer.

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