The move to hybrid work has put booster rockets on the adoption of new communications tech… and created a new set of dilemmas for employers.
The changes that have been thrust upon employers as a result of the Covid-19 pandemic, and the speed with which employers have adapted to them, have undeniably transformed the world of work. Technology has been at the core of much of this. It seems hard to fathom now, but 18 months ago many of us did not know what Zoom was, and few had suffered “Zoom fatigue”, yet now video conferencing technologies are firmly imbedded in our working culture. We have seen an array of new technologies rapidly emerge to seek to help employers meet the challenges of having a remote, or partially remote, workforce. Going forward, employers should carefully consider the adoption of new technologies that monitor employees or regulate how they work – the legal and reputational consequences of choosing the wrong technology, or implementing it poorly, can be significant.
A HYBRID WORKFORCE
At this stage, and subject to the latest lockdowns, it appears most employers in Australia are planning to take a hybrid approach to office-based workers going forward – employees will spend part of their week working from home, and part in the office. Similar trends can be seen, or are expected, as employees continue to return to offices across Asia and Europe. The general consensus seems to be that this approach is the best way of accommodating both those employees who can’t wait to return, and those who never want to return. However, it has introduced a number of new challenges that employers must now consider, such as how they can monitor the performance, productivity and working hours of employees who are not in their manager’s line of sight, and how to try to ensure that those working remotely have the same work experience as those in the office. This is where the right technology, implemented in the right way, can play such a valuable role.
From a legal perspective, employers will need to consider a range of laws and regulations that may impact the implementation of new technology. These include those in the areas of employment, privacy, discrimination, and workplace surveillance and, potentially, work health and safety. Any relevant terms of enterprise/collective agreements, modern awards, company policies and employment contracts will also need to be taken into account. The questions to be considered from a legal perspective are not just related to whether the technology can be implemented, but how it (and any data generated from it) will be used, and what decisions the employer might make based on use of the technology.
An additional challenge for employers who have regional or global workforces will be the need to consider the different legal and cultural considerations that are relevant to their local employees as part of any technological change. Technology that may be simple to implement in one jurisdiction, may be much more complicated to implement, or potentially not even permitted, elsewhere.
Beyond the purely legal considerations, it is also crucial to bring employees along for the ride when adopting new technologies that could impact the way they work. Technology that is seen by employees as adding value by helping them to work more efficiently, or technology that otherwise improves their wellbeing, is likely to generate strong support and increased trust from employees. On the other hand, technology that is seen as infringing on the privacy of employees, or that is seen as an unnecessary additional level of oversight, is likely to have the opposite impact, potentially causing employees to leave, or creating reputational damage for the employer. What this means in practice is that employers should be communicating to employees about the need for, and benefits of, the new technology before it is implemented, and proactively addressing any concerns as they arise. For any technology that is likely to be particularly controversial, such as remote monitoring, surveillance, or facial recognition, employers may even want to consider a more structured consultation process prior to implementation.
THE CHANGING LEGAL LANDSCAPE
It’s not just employers grappling with the impact of technology on ways of working. Legislators across the world are confronting many of the same issues. In Australia, we have a state parliamentary inquiry looking at the impact of technology on the future of work, including the suitability of the current workplace surveillance laws, and at a national level, a review of the Privacy Act 1988 (Cth) is underway. Legislative initiatives from other jurisdictions, such as the “right to disconnect” are also starting to gain traction in Australia – this concept was recently included in an enterprise agreement for the first time, demonstrating a direct response to the encroachment of workplace technology on our non-working lives. Indirect legislative incentives can also lead to employers introducing new technology, such as wage theft laws, which encourage employers to more carefully monitor employees’ working hours to ensure that the correct wages are paid. Employers will need to keep on top of these developments, and remain adaptable to respond to any changes in the legal landscape.
There is no doubt that technology is often able to make the working lives of employees better, and to offer employers increases in productivity and profitability. However, in some cases these benefits are outweighed by legal or ethical considerations, particularly when those technologies are being used in the homes of employees. Pausing to consider these factors before implementing any new technology is what will set employers up for success in the future.
- Technology will play an increasingly important role in the future of work as employers move to hybrid ways of working.
- In addition to considering any legal barriers to the introduction of new technology, employers also need to think about how the technology will be perceived by employees to avoid damage, sometimes irreparable, to employee trust – clear and timely communication will be key to this.
- Employers will need to keep themselves informed of developments in the law as legislators strive to keep pace with new technologies and ways of working.
The contents of this publication are for reference purposes only and may not be current as at the date of accessing this publication. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
© Herbert Smith Freehills 2021