OPINION: The role of inhouse counsel in the changing workplace Following the gradual lifting of lockdowns globally and the eventual return to normalcy, there is a need for organisations to assess what work will look like in the future and devise the appropriate short-, medium- and long-term responses. Factors that should be taken into consideration include the increasingly competitive labour market, changing workers’ expectations and the automation of workplace tasks. Inhouse counsel are pivotal in helping their organisations adapt, develop, and sustain a thriving workforce despite the tectonic shifts in workplace and workforce relations.

The COVID-19 pandemic continues to present unprecedented challenges for employers and the workforce. Uncertainty has become the norm as organisations navigate the balance between employee safety and productivity. While tech-enabled businesses have adapted to new working practices, challenges have emerged in sectors that are more dependent on a physical presence at the workplace. Employees too have been affected as shift working and furloughs have led to falling wages and redundancies. The new normal has also changed the employer–employee relationship, with increasing focus on flexibility, compensation, and employee rights.

The hybrid model of working (which enables employees to blend working flexibly from different locations such as home, office and on the go), automation, the demand for new skills, shift working and changing demographics are all changing the workplace.

How should inhouse counsel respond?

The increased uptake of technology and automation and the transition to the hybrid model of working presents challenges for certain categories of workers, such as the older generation, who may not adapt so easily to the new ways. Preferences for a specific demographic can lead to workplace discrimination and pay inequality. Re-skilling opportunities should instead be extended to the older generation to help them adapt to the new culture. Inhouse counsel should work closely with HR executives to identify employees’ skills gaps and recommend upskilling courses. Dismissal for poor performance due to changes in technology must only be considered after all reasonable steps have been taken to support the employee to adapt.

While the benefits of remote working are clear, the model is prone to weaknesses such as absenteeism which is difficult to monitor – making the gathering of evidence for disciplinary measures a challenge. Employers need to put in place protocols that facilitate the monitoring of employee productivity such as the use of timecards, clearly defined performance metrics, out-put based performance indicators and regular check-ins to enhance accountability. Developing these tools and standards will help employees to remain accountable for their work assignments. This will also assist employers to maintain the relevant supporting records in the event that disciplinary measures for non-performance are disputed.

The use of different categories of workers such as temps, part–time, casual and independent contractors is on the rise as organisations look to manage their wage bill during challenging economic times. There’s a tendency for the lines between such categories of workers and permanent employees to be blurred, which could pose tax risks to the employer. For example, while PAYE and NSSF need not be accounted for independent contractors and casual workers, the position is different for persons classified as full time employees. Therefore, the consequences for misclassification can be severe. This makes it imperative for inhouse counsel to closely examine the letter of the contracts and establish the actual conduct of the relationship to identify any mismatches (click here for another PwC article on classification of workers as independent contractors or employees).

The need to restructure and rationalise the workforce is top of the agenda for many organisations right now. While this has commercial benefits such as reducing duplication and operational inefficiencies, inhouse counsel have a key role in determining the most appropriate approach to implementing such measures.

The relevant laws pertaining to redefining, modifying, or eliminating job roles and rethinking compensation and benefit structures must be evaluated beforehand. The correct procedure for communicating such decisions must be followed in line with the law and the organisation’s policies. This would entail communication of the reasons behind the decision, obtaining feedback from the employees to be affected, following legal process, payment of terminal benefits and notification to the authorities where applicable. Prior communication and following due process in decision implementation is very crucial as disputes may arise if the right procedure is not undertaken.

Health and safety amidst a pandemic poses issues that may require inhouse counsel to think outside the box of traditional legal principles. For example, whether occupational safety, health and workers’ compensation issues can apply to remote workers. inhouse counsel have a role to play in guiding HR teams on the appropriate content of remote work policies in this regard.  

For example, when drawing up remote work policies, organisations should investigate whether the employee’s home or secondary residence is suitable for remote work and how to take occupational safety and data security into account. Extending insurance cover to employee’s homes should also be taken into consideration.

The issue of mandatory vaccination for employees has generated significant debate. Imposing mandatory vaccinations as a condition of continuing in employment could also result in legal breach and negative publicity which can affect the recruitment and retention of staff. Mandatory vaccination could give rise to claims of discrimination against employees who may have a legal basis for non- vaccination such as religion, beliefs, or age. While there may be cases where employers will be able to justify a requirement for mandatory vaccination, this could prove challenging where there are effective and less discriminatory methods such as regular testing and remote working to achieve the required business outcome. Depending on the circumstances, inhouse counsel will need to assess employees’ rights to avoid a discrimination claim.

In summary, inhouse counsel have a critical role to play in helping organisations to navigate the legal and business challenges posed by the changes in workplace culture. Advising and guiding leaders, supporting business objectives, managing legal risk and compliance, promoting best governance practices, and offering risk analysis are some of the key contributions that inhouse counsel can make in this process.