South Africa: Could employers who don't offer remote working lose valuable talent?

It appears from recently released research that, in order to remain competitive and relevant in the future, it will be necessary for employers to consider their approach to flexible and agile working, writes Jacqui Reed. 

The media reported on two recent studies conducted in the United States of America, which found that the significant majority of white collar employees would prefer to work from a location of their choice, rather than their employer's offices.

A poll conducted by management consultancy, Advanced Workplace Associates, found that only 3% of employees wish to return to the office on a full-time basis and 86% would like to work from home at least two days per week.

Research conducted by Prithwiraj Choudhury, a Harvard Business School professor, who is an expert on remote work, shows that a hybrid workforce is more productive, more loyal and less likely to leave.

With companies from Twitter to PwC now giving employees the option to work virtually forever, Choudhury said businesses that don't adapt will risk incurring higher employee attrition.

In response to what the world of work will look like in 10 years, he said: “We will probably in 10 years stop calling this "remote work". We'll just call it work, and work is something you do, not where you go or where you live. My prediction is the process will unfold in every industry and every country. There will be a few leading companies that will adopt this and attract talent, and there will be laggards digging their heads in the sand and losing talent.”

His model provides for 25% of employees' time being co-located with the team, mentoring junior people, going out for team dinners and making memories.

Importantly, these studies only apply to white collar employees and are not applicable in respect of those employees who perform physical tasks.

What to do to remain competitive

It appears from this research that, in order to remain competitive and relevant in the future, it will be necessary for employers to consider their approach to flexible and agile working. Many employers had, in fact, embraced this concept prior to the pandemic.

This was evident from the multiple requests we received from clients across various sectors to review their agile/flexible working policies and procedures to ensure compliance with their current contracts of employment.

While it was mandatory for all employees, who were able to do so, to work from home at the commencement of the pandemic, the South African government has slowly eased restrictions over the last two years and all employees are now permitted to attend at the workplace.

Importantly, those employees who test positive for Covid-19, but are asymptomatic are not required to isolate. This raises questions regarding the employer's obligations to ensure a safe and healthy working environment for its employees.

Employers are permitted to impose stricter guidelines than those which the South African government requires, particularly in circumstances where they will be in breach of their obligations in terms of the Occupational Health and Safety Act, if they permit Covid-19 positive employees to attend the workplace and spread the virus to those who may form part of a vulnerable group.

Circumstances have changed 

In reaching a decision as to whether it would be appropriate to follow with South African government's amendment to the regulations and permit Covid-19 positive employees, who are asymptomatic, to attend the workplace, it would be prudent for an employer to not only consult with its employees on the issue, but to also review its risk assessment and plan.

This is to determine whether circumstances have changed sufficiently from a scientific perspective such that the employer's decision constitutes compliance with its health and safety obligations to its employees as well as employee's obligations in this regard to each other.

When determining whether to permit employees to spend the significant majority of their time (75% according to the study above) working from home or some other location, other than the workplace, the employer will need to consider a number of factors, including:

• how the initially mandatory remote working requirement imposed by most governments across the world impacted upon productivity and the employee's mental and physical well-being;
• whether the nature of the business is such that in-person mentoring, training, guidance and assistance of junior employees (particularly those in apprenticeship or internship roles) is necessary or not;
• whether requiring employees to work from the office will negatively impact upon them from a financial and or mental and physical health perspective and/or result in direct or indirect discrimination of employees based on gender and race. (Several studies have suggested that a return to work with the absence of any flexibility has a negative impact on working mothers);
• whether employees are more productive, efficient and content working remotely or in the office; and
• whether the employer runs the risk of failing to attract talent (particularly from other jurisdictions) because it does not implement a flexible/agile working policy of some kind. Of course, the nature of the employer's business and whether employees in other jurisdictions would be in a position to perform work for a South African-based company are relevant considerations. An example of this may be a South African law firm that provides advice to clients based in South Africa, which would require only South African qualified lawyers to perform the work. Of course, the hierarchical nature of a law firm is such that it would also be necessary to consider the impact, if any, on trainees who are trained by senior lawyers and whether this training is effective in the remote work setting.

Importantly, and this has been the case throughout the various iterations relating to employer's obligations during the pandemic, employers must consult with employees and all other relevant stakeholders, such as trade unions and employee representatives, prior to making a decision in relation to an employee's workplace.

This article was first published by News24.

For more information, please contact Jacqui Reed or your usual Herbert Smith Freehills contact.