LEGAL MATTERS: Some legal implications of working from home

THE scourge of Covid 19 has forced businesses to find new and effective ways of working. With ever-tightening lockdown regulations being enunciated by government, employers need to find a way to work round the negative effects of the pandemic while remaining productive.
The most common adaptation that commerce has had to employ is working from home (WFH). While the change has been obligatory, there are some benefits that come with employing an effective working from home policy.

For instance, employers can expand their work force without being constrained by office space. Companies also save on overheads such as employee shuttle services, electricity and so on. These are just some of the perks of the working from home revolution.

Regard must also be had to the new legal obligations, considerations and opportunities that arise from working from home arrangements.
This week’s piece will deal with what to look out for when crafting work from home policies as well as the legal implications that can arise from the several available options.
Work from home policies
The type of work from home policy a company utilises should be informed by its overarching response strategy to the Covid-19 pandemic. Responses can either be short or long-term.
For example, one either wants to scale up the business and increase service fluidity by creating an effective team with remote working capabilities. On the other hand, one may simply want to cut costs. The former would look to hire aggressively or alternatively equip its in-office staff with the skills and equipment needed to work from home.
The latter would cut out expenses such as shutting down entire branches and using the savings to equip their staff to work from home.
In deciding the general principles that guide the chosen process, companies must decide what it is they want to achieve. Once they have done that, they can craft WFH policies that suit their needs. I will deal with some of the things to think about when crafting WFH policies.
Who is eligible
Not all work can be done from home. There are technicians and other professionals whose expertise is most useful when applied on-site. A WFH policy must be able to differentiate between those who are eligible and those who are not. Where possible, a middle ground where turning up to the office is required periodically can be drawn up.
Update terms of engagement
It may be necessary to update employees’ contracts of employment to cater for the new nature of work they are expected to do. An employer-employee relationship must never have murky and unclear duties and obligations.
Unclear contractual relationships are hotbeds for disputes. A typical example is regulating whether remuneration is time-based i.e based on hours worked or is performance-based i.e based on the volume of work done.
Employment contracts typically outline the hours that an employee is expected to work, usually 8am to 5pm. That no longer works in the WHF era. Performance-based contracts are beneficial to both parties in that they allow employees to be effective in the manner that best suits them, while ensuring that they are kept to a certain standard of performance. A good WHF policy specifies how an employee’s productivity will be measured.

Sensitive information accessed and stored at home
Employees who have access to sensitive company information have to be put on terms to protect this information as they work from home. Employers do not control who accesses their information the same way they would in an office environment. Employees may not even use company servers when they work from home.
Use of mobile devices and open networks opens company information to misappropriation. There is a need to deal with any potential exposure resulting from misuse of company information. One way to do this is by having employees sign non-disclosure agreements (NDAs).
These agreements outline the extent to which an employee is responsible for the information under their care, how and when they can access sensitive information and what they are expected to do to keep that information safe. Also, NDAs should state what happens if an employee mistreats information entrusted to them.
Equipment
A WFH policy must state what equipment, if any, will be made available to an employee. This is common sense, but there are underlying legal implications that employers must protect themselves from.
Often, employers without set policies troubleshoot problems on the fly and this leads to inconsistencies that can expose employers to needless legal disputes.
In the Australian case of McKean v Red Energy Pty Ltd [2020] FWC 5688, an employee claimed that he was “forced” to resign because his employer did not provide him with a desk to work from home.
The Fair Work Commission dismissed the case for the reason that having to buy a desk for himself was not tantamount to him being forced to resign. This case is instructive though because it shows that WFH policies are fertile grounds for labour disputes. if not handled well.
Modes of communication
The digital space is awash with communication options from SMSs to Zoom meetings. A WFH policy must state what the employer considers appropriate means of communicating both internally and with external clients.
Permitted modes of communication must include channels that optimise data protection. Specific email, phone and instant messaging platforms must be established through the WFH policy.
In conclusion, while establishing a WFH policy may be as simple as sending a company-wide memorandum, there are legal considerations to keep in mind that warrant giving your WFH policy the attention it deserves.
Seeking legal advice in drafting such a policy averts potential exposure down the line.

Muza is an admitted legal practitioner, conveyancer and notary public. He writes in his personal capacity and is reachable at hilarykmuza@gmail.com and at 0719 042 628.