As result of the Covid-19 pandemic, the modern workplace underwent significant changes with businesses being required to adapt to new ways of working. Many employers revisited their operating models and have since adopted remote or hybrid working arrangements, depending on the nature of their operations.
While the move to remote and hybrid working arrangements resulted in certain benefits, the implementation of load-shedding has created a new challenge for employers to manage in the modern workplace.
This is because during periods of load-shedding, employees who are required to work from home may not have a back-up power supply and employees who are embracing the hybrid work model may similarly not work during periods of load-shedding should they be scheduled to work from home. As power utility, Eskom, has confirmed that load-shedding will continue for some time, the question that arises is what steps can employers take to reduce the negative impact load-shedding has on their operating models.
On-site working models
Due to the nature of work to be performed, it may not be possible for all employees to work remotely. Where employees are required to work on-site, and the employer does not have a secure power supply, the employer will be required to pay employees during periods of load-shedding, regardless of whether or not the employees are able to perform their duties.
This is because the employment relationship is a reciprocal one in terms of which an employer’s obligation to pay arises when the employee tenders her/his services. Thus, where employees are available to work but the employer cannot provide the employees with work due to load-shedding, the employer is still obliged to pay the employees concerned.
In these circumstances, and to the extent that there is scheduled load-shedding, employers can consider adjusting working hours or introducing procedures that apply to interruptions of productions to minimise the effects of load-shedding and loss of working time. This will, however, normally require the agreement of employees or their representative trade unions, unless load-shedding is regulated at an industry level such as in the metal and engineering industries.
If this is not possible, employers can consider using the load-shedding periods to conduct working activities that may not require electricity, such as employee training or staff meetings. A failure to adequately regulate load-shedding may result in an employer having to restructure its operations and retrenchments may accordingly become unavoidable.
Hybrid working arrangements
Hybrid working arrangements incorporate a combination of on-site and remote work. Employees may have the ability to decide when to work from home or from the office, or employers may determine the number of days, and on which days, employees are required to work from the office to ensure effective collaboration. There is no one-size-fits-all hybrid model, but what has become a challenge is a failure by employees to work during periods of load-shedding when this happens during the employee’s ‘remote work period’.
Where an employer has adopted hybrid working arrangements and is able to provide a secure power supply at its offices, there is no reason why employees cannot work during load-shedding.
Employers should accordingly regulate and effectively communicate their hybrid working arrangements to all employees and counsel employees on how to manage the impact of load-shedding on work and travel. In doing so, employers should ensure that they do not provide employees with a contractual right to remote work, or to remote work on specific days during the week, and that their hybrid working arrangements are as flexible as possible.
To the extent that an employee has back-up power supply at home, the employee should be required to ensure that her/his work resources (i.e. laptop, cell phone etc.) are fully charged and that her/his power supply is stable at the commencement of, and for the duration of, the load-shedding.
Where employees do not have a reliable back-up power supply at home, employers have the right to require employees to come into the office when load-shedding is scheduled. In this regard, employers may require employees to familiarise themselves with Eskom’s load-shedding schedule in order to make the necessary arrangements and to ensure that they attend the office timeously.
Employees must also take appropriate steps to mitigate the side effects of load-shedding on their working arrangements, such as increased travelling time. Employers should make it clear that the onus is on employees to ensure that they are able to perform their work during the required working hours notwithstanding the implementation of load-shedding.
A failure by employees to comply with their employer’s instructions relating to hybrid working may result in the employee no longer being able to enjoy hybrid working or being subject to appropriate disciplinary action. Exceptional circumstances may of course exist where load-shedding is unplanned and the employee has difficulties coming into the office, and employers may need to be understanding in this regard.
Pursuant to the pandemic, many employers elected to close their physical offices and require employees to work permanently from home or remotely. Requiring employees to work from home places an obligation on employers to ensure that the necessary infrastructure is in place.
Accordingly, where an employee does not have a secure power supply at home, employers may be required to, at least, ensure that the employee has access to the internet during periods of load-shedding, coupled with the obligation on employees to ensure that their work resources are constantly charged. The reality of stage 6 load-shedding may still, however, make this unsustainable.
In the absence of being able to provide employees with a secure power supply and internet from home, employers may be required to consider other venues from which employees can work remotely, for example flex-space offices.
Regardless of the venue from which employees work remotely, employers may need ensure that (i) they are performing their duties from a safe working environment; (ii) they take reasonable steps to prevent the disclosure, inadvertent or otherwise, of confidential information; (iii) they adhere to data protection laws in respect of the processing of personal information; and (iv) they comply with the employer’s IT security measures when accessing the employer’s technology systems.
With load-shedding becoming a reality of life in South Africa for the foreseeable future, it is important that employers and employees understand the serious implications of load-shedding and their rights and duties during periods of interrupted power supply. Employers should carefully regulate their working arrangements and employees should be required to take reasonable steps to ensure that they are able to work during periods of load-shedding.
Written by Nadine Mather, Partner, Bowmans South Africa