Warning to companies about work-from-home in South Africa

Employers should not end remote work arrangements before considering how they were initially set up in employment contracts, legal experts in South Africa warn.

Several major sectors — including telecommunications, banking, financial services, and some government agencies — have recently instructed staff to return to the office.

This reflects a broader global shift away from the work-from-home norms that became widespread during the Covid-19 pandemic.

In South Africa, evidence of this shift is visible in rising traffic volumes, longer commute times, and increased fuel consumption — trends that mirror pre-pandemic patterns.

Many employees are now asking whether their employer can legally order them back to the office.

According to Yvonne Mkefa, Director in the Employment Law practice at Cliffe Dekker Hofmeyr, the answer depends on several factors.

Speaking to BusinessTech, Mkefa said these include how remote work was formalised and whether it was contractually agreed upon.

She said remote work was not a new concept that suddenly emerged during the pandemic. Although Covid-19 made it more widespread and, in many cases, a necessity, the practice existed well before.

South Africa’s labour laws — including the Basic Conditions of Employment Act (BCEA) and the Labour Relations Act (LRA) — do not specifically address remote work.

Instead, remote and hybrid work arrangements are governed by the terms of individual employment contracts.

“As a rule, employers are allowed to make changes in the workplace — but they must do so lawfully and fairly,” Mkefa said.

She said such changes include any directive requiring employees to return to office-based work.

The BCEA requires employers to provide written particulars of employment, including the designated place of work.

If an employment contract explicitly states that the employee’s place of work is remote, the employer is bound by that term.

Mkefa explained that a demand to return to the office without the employee’s consent would amount to a breach of contract and could also constitute a unilateral amendment of the terms and conditions of employment.

However, this changes if the employment contract gives the employer the right to determine or change the place of work.

In that case, the employer may lawfully issue such an instruction, provided the decision is implemented fairly.

For example, employers cannot selectively change work locations based on race, favouritism, or any ulterior motive.

Labour Relations Act and remote work

“While the LRA does not expressly regulate the place of work, it infuses the employment relationship with equity, including fairness,” Mkefa said.

“When employers want to make changes in the workplace, employees — or their representatives — must be engaged by way of either consultation or negotiation.”

Employers who fail to consult or follow fair procedures risk breaching their legal obligations.

The issue becomes more complex when working from home is considered a workplace benefit rather than a contractual term. Even then, Mkefa said, employers are expected to consult before making any changes.

“Even where a benefit is not a contractual term and condition of employment, consultation ought to be resorted to by an employer when seeking to effect a change to a workplace benefit or practice,” Mkefa said.

Therefore, employers in South Africa can require staff to return to the office — but only if their employment contracts allow it and the process is carried out fairly.

If an employee’s contract explicitly specifies remote work as their place of employment, any instruction to return to the office would require their consent and negotiation.