South Africa

OP-ED WORK/LIFE BALANCE

The digital ties that bind — South Africans need the right to disconnect and slip the work leash

The digital ties that bind — South Africans need the right to disconnect and slip the work leash

Increased flexibility has been a godsend to many employees in the pandemic but has also meant it is harder to disconnect from work. Unlike some EU countries, South African law does not expressly acknowledge the right to disconnect from work.

My father taught me the importance of work-life balance. He said that a day has 24 hours, which may be divided into three equal periods of eight hours — sleep for eight hours, work for eight hours, and play for the remainder. I gladly concede that the concept of eight hours of play is somewhat misleading. Humans have social and familial commitments that quickly consume this time.

Employees have, however, been working longer and harder since the advent of the Covid-19 pandemic and as employers have embraced the technological solutions of the Fourth Industrial Revolution.

Although increased flexibility has been a godsend to many employees throughout the pandemic period, it has also meant that they have had fewer opportunities to disconnect from their work. Many employees now find themselves bound by the so-called “digital leash”. Employers frequently contact employees outside of typical working hours. They must work through lunch or other breaks regularly and are penalised for not being available outside usual working hours. Their co-employees receive preferential treatment for staying connected and working after regular working hours.

According to a recent survey, 88% of South African employees work longer hours than ever before, and 32% of employers expect their staff to answer emails outside of typical working hours. The tremendous increase in online meetings has further exacerbated the problem. Some companies now require employees to put on their cameras during these meetings. Even if this is not required, online exchanges make it impossible for employees to focus on other duties while engaging in critical discussions.

There is also a general sense that meetings are scheduled for trivial matters where an email would have sufficed. Employees are therefore left with no choice but to work longer hours to complete essential tasks and to stay up to date with their work. It is predicted that only 25% of business meetings will take place in-person by 2024.

Therefore, reports that levels of stress, anxiety, depression, domestic violence, loneliness and isolation, and musculoskeletal-related medical disorders amongst South African employees are on the rise are not surprising. Employees, particularly women, who are, in many cases, also responsible for domestic and childcare tasks are disproportionately affected by burnout. They sometimes find it challenging to compete with their colleagues who do not have similar commitments, often to the detriment of their careers.

The French Supreme Court ruled in 2001 that employees are not required to bring work home. The same court ruled in 2004 that it was not misconduct if an employer could not reach an employee on a smartphone outside of work hours. In 2016, France also passed the first legislation relating to the right to disconnect.

Several countries and the European Union are following suit and have already adopted or are in the process of adopting legislation to preserve an employee’s right not to respond to work-related communications outside of regular business hours and not to be penalised for doing so. They include a wide range of protection, including dismissal protection or protection from being denied promotion if an employee refuses to work outside of working hours allowed for in law.

These laws are intended to safeguard all employees, including those who work remotely and flexibly and preserve these employees’ work-life balance.

South African law does not expressly acknowledge the right to disconnect from work. The right to fair labour practices in section 23 of the Constitution would likely be interpreted to extend such a right, but labour legislation adopted to give effect to it also does not expressly extend such a right. It provides only piecemeal protection against the exploitation of employees outside of regular working hours.

First, the Basic Conditions of Employment Act (BCEA) regulates working hours and overtime, but only for employees who earn less than R211,596.30 a year. Chief among these provisions, an employer may not require or permit an employee to work more than 45 hours in any week; and nine hours in any day if the employee works for five days or fewer in a week; or eight hours in any day if the employee works on more than five days in a week.

After that, a limited amount of overtime may be required or permitted. In addition, employers must allow an employee a daily rest period of at least 12 consecutive hours between ending and recommencing work and a weekly rest period of at least 36 straight hours, which, unless otherwise agreed, must include Sunday. The BCEA does allow for mechanisms in which this may be altered.

Again, I should stress that these provisions are only applicable to those earning less than the threshold amount. However, the courts have distilled general principles from these provisions to aid employees who earn less than the threshold amount.

Second, the Labour Relations Act (LRA) provides protection against dismissal and other forms of disciplinary action short of dismissal that is not substantively and procedurally fair. It also protects against any unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits to an employee. Although the labour courts have not yet had the opportunity to deal with the matter in the context of the right to disconnect, these remedies may potentially be extended to provide employees with remedies in appropriate circumstances.

Third, employees who suffer occupational detriment due to being expected to work after normal working hours may also potentially bring a claim in terms of the Employment Equity Act (EEA). The EEA prohibits direct as well as indirect discrimination in employment.

Direct discrimination refers to an act of discrimination based on a prohibited ground, such as race, sex, marital status and family responsibility. Indirect discrimination occurs when an employment practice is based on a non-prohibited ground (for example, the expectation to work beyond normal working hours and to answer emails when at home), but the effect is that a category or group of people who are protected under a prohibited ground of discrimination is adversely affected thereby (for example, person’s family responsibility).

The right to disconnect is complicated by the increasingly globalised nature of many occupations and businesses. The Fourth Industrial Revolution has boosted the usage of technology that enables greater communication across time zones, making many organisations more efficient. A simple blanket prohibition on communications outside of regular business hours is not a viable answer, especially in South Africa, which is attempting to compete with developed countries.

Employees can however benefit from more guidance as to what may be expected of them and employers from more guidance as to what they may expect from employees.

South Africa would do well to adopt a code of good practice like the Irish Workplace Relations Commission’s Code of Practice for Employers and Employees on the Right to Disconnect. The Code requires employers to provide specific information to employees about their working hours; to ensure that employees are aware of what their usual working hours are reasonably expected to be and to ensure that employees take rest breaks.

Employees are required to manage their own working time, to fully cooperate with any appropriate mechanism used by an employer to record working time, including when working remotely; to be mindful of their colleagues’, customers’, clients’, and all other people’s right to disconnect (for example, by not routinely emailing or calling outside regular working hours); and to notify the employer in writing of any statutory rest period or break to which they are entitled.

In addition, the Irish Code recommends that employers adopt policies where emails should be sent only during working hours, except for in exceptional circumstances. When employees do send communications at times that may be inopportune for other employees, the sender should consider the timing of their communication and the risk for disruption.

The recipient should realise that they will not be expected to answer until their working time resumes. These emails should indicate if an immediate response is required. In addition, digital meetings should only be scheduled when necessary and only for those employees who play an active role and have something to contribute. The policy should set out the procedure for raising concerns concerning the right to disconnect.

There have also been successes in Australia where unions have successfully negotiated a right for employees to disconnect. Employers are directed to respect leave and rest days and avoid communicating with employees outside of work hours unless in an emergency or to check on their welfare.

South African unions have not addressed the matter with any urgency. However, given that many women, low paid, private sector, un-unionised and relatively powerless workers in smaller workplaces have little chance of negotiating or enforcing a right to disconnect, it is doubtful if collective bargaining would effectively address the problem.

Employers have always had a natural tendency to intrude on their employees’ time, and technology has only made this type of unwanted invasion simpler. Legislators must understand that technology is being abused in ways that are harmful to employees.

More than ever, a return to a far more realistic work-life balance is required. DM

Professor Marius van Staden is Associate Professor in the Faculty of Law at the University of Johannesburg. He lectures Labour Law, Jurisprudence, Interpretation of Statutes and Research Methodology.

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