The Covid-19 Pandemic was a mandatory Work from Home (WFH) trial. Large shared offices, company socials and hours of commute have been replaced with isolated Zoom calls on the kitchen table at least for now (and for some organisations even permanently). This has urged governments to try some untested waters in employment law.
Chris Montgomery, Unspalsh
The WFH home scene is likely to outlast the Pandemic. And why not? A 2015 study by Stanford University found that Chinese call-centre workers who worked from home were more productive (they processed more calls). Another study, looking at America’s Patent and Trademark Office, found similar results. This is not without its noticeable downsides such as dwindling team spirit and missing coffee table conversations. The new remote working norm raises several employment law questions. Now is the opportunity for the government to reform this area of law which reflects the nine-to-five culture established in the post-war period.
At a time when personal and work life boundaries are blurred, how, if at all, can employers monitor employees at home? Before the Pandemic itself businesses commonly deployed forms of monitoring of its staff. Now they must consider the implications of monitoring staff who are working from home. The monitoring techniques used during WFH include checking online behaviour such as time spent on work-related apps, opening emails, and websites visited.
More evasive forms of monitoring have included the capturing of random screenshots, tracking physical location and, even webcam surveillance. However, this is in tension with the right to private and family life in Article 8 of the European Convention on Human Rights (ECHR). Although the UK has left the EU, it is still a member of ECHR. European Court of Human Rights (ECHR)’s decisions on workplace monitoring in Barbulescu and Lopez Ribalda questioned the justifiability of monitoring, based on whether it complies with proportionality requirements. Dr Frantziou convincingly argues that the ECHR’s broader case law casts serious doubt over the compatibility of such monitoring with Article 8 in a WFH environment. Potential psychological harm of monitoring is such that any test of proportionality must be very strictly applied. Hence, it is difficult to accept that location tracking and webcam surveillance meet the proportionality threshold solely to check productivity.
Similarly, the worry of ‘work without end’ is being recognised. In July 2020, a study by economists at Harvard found that the average workday under lockdown was nearly 50 minutes longer, and that people were more likely to send emails after work hours. Germany has pressed ahead with a draft bill giving employees the right to work from home whenever possible and rights to limit hours spent working. France is also relying on a 2017 law that limits employees’ obligation to answer calls and emails outside office hours.
Another area affected is an employer’s rights and responsibilities. Are firms legally obliged to pay for employee’s computer, internet, a safe desk, lighting, and heating? The answer is potentially yes. Employers have a duty to provide a safe workplace for their employees, extending to remote working. Employers are also liable when employees injure themselves while WFH. They have the same duty of care for their remote working employees as for they do with their employees working in an office. In the UK, employees are also eligible for statutory sick pay (SSP) for the full period for which they are required to self-isolate following the Statutory Sick Pay (General) (Coronavirus Amendment) (Suspension of Waiting Days and General Amendment) Regulations 2020.
But employers are also saving on their overhead expenses, such as office rent and electricity. Could they also look towards reducing their costs by removing “London Weighting”- an allowance paid to workers living and working in the capital? The exodus from the city raises the question of whether it is realistic for employers to pay a location premium, when employees have relocated to an area where living costs are significantly lower. However, such a decision would represent a change in employees’ terms and conditions. Employers would also have to remain cautious about future Diversity and Inclusion issues if it turns out that one racial group continues to receive a location premium and others do not.
However, the Pandemic has swung the balance of power in favour of employers with more people seeking fewer available jobs. A bleak employment market discourages employees from suing their employers. And for those who decide to, they will have to face a huge backlog. Does this then call for greater government protection of home workers - either through increased government checks of employers or through legislation?
Most importantly, the rise in remote working has been heavily skewed towards the highly paid, white-collar jobs and a huge portion of the workforce does not have the WFH ‘luxury’, leading to a deepening of the social divide. Workers in blue-collar sectors, such as hospitality, healthcare and construction, cannot work from home, and face a trade-off between protecting themselves from the Covid-19 disease, and protecting their paycheck. This is combined with incurring commuting expenses that a WFH employee would save on.
A correct approach to regulating work from home would be one that recognises possibilities created by technology while maintaining social and economic stability. The correct approach will also vary across countries, industries and even individual firms. The core principle, however, should be one of equivalence of all parties.
By Suhani Ishwarchand Mangal, LLB Law Student at Queen Mary University of London