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The world of work: Real Estate perspective

25 November 2019 | Global
Legal Briefings

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The world of work is undergoing a transformation on a scale not seen since the Industrial Revolution.  Automation and digital technology are changing how, when and where we work, and in what roles.  Flexible and remote working has mushroomed, with clear implications for organisations' workspace requirements and consequently the real estate sector.  As employers explore different working models and advanced technologies, those working for them are becoming more vocal, articulating their views through both internal channels and external voice such as social media platforms and digital petitions.

Workforce activism

According to research recently carried out by Herbert Smith Freehills, more than 80% of organisations expect to see a rise in workforce activism over the next three to five years.  Workforce activism was seen as the third biggest potential risk to reputation, only exceeded by cyber threats and global economic recession;  activism was seen as the biggest risk by real estate respondents. 

AI/automation and surveillance/monitoring of employees were the top key triggers for workforce activism identified by respondents.  Values, in areas such as CSR, the environment and climate change, are also becoming a significant trigger for workforce activism.  The environmental impact of an organisation's workplace may increasingly feature as a key concern for the workforce; engagement on this issue will be important in terms of worker recruitment and retention as well as public reputation.

Our research highlights the need for organisations to have workforce concerns front of mind as the future "smart workplace" takes shape.  Workforce activism through social media and other platforms is one risk, but the "smart workplace" could also raise the potential for legal claims (for example, under data protection laws) if not handled appropriately.  The growing availability of, and familiarity with, crowd-funding apps and other digital tools to drum up group litigation presents additional risks. 

Flexible work

"Flexible work" covers a multitude of different working arrangements, including part-time, flexitime, compressed hours, job-sharing, or remote working.  Currently, employees with at least 26 weeks' continuous employment can make a statutory request for flexible work which the employer can only refuse for one of the specified reasons.  Individuals whose requests are refused improperly may be entitled to up to eight weeks' pay in compensation;  in some cases employees will also be able to bring a discrimination claim where their request is to accommodate childcare commitments, disability or religious requirements.

Many surveys have highlighted the potential benefits of flexible work, including increased productivity, diversity, and workforce retention.  Flexible work has also been widely identified as a way of helping reduce the gender pay gap, given its attraction for working mothers.  This is one of the Labour Party's reasons for its plan to make the right to seek flexible work a day one right for all employees, with a presumption that employers should grant the request unless they can justify refusing.  Flexible work is also thought to be beneficial to mental health: a study of 115 companies conducted by Wildgoose in August 2019 revealed that more than a third of flexible workers thought flexible work had improved their mental health, while 43% of those without that option felt that having it would do so.  Flexible work is also more popular with older workers, a factor that will become increasingly important given the war for talent and the ageing demographic of the UK workforce.

And yet there is a growing recognition that these benefits must be balanced against the continuing importance of bringing workers together physically to create a community, promote team-work and creativity, and provide an "employee experience" to attract and retain talent in a competitive market.  There is also a desire (and, in some respects, a legislative requirement) to monitor worker activity, which can be made more challenging by flexible work. 

Monitoring and surveillance

There are clearly legitimate business aims in monitoring working time: the desire to measure productivity and performance, ensure time is properly paid, avoid stress or burn-out claims, protect confidential information or meet regulatory requirements (for example in the financial services sector).  There are also legal requirements under working time rules.  Currently UK employers must maintain "adequate records" to show compliance with weekly working time limits and night work limits.  This requirement may be extended by a ruling of the European Court of Justice in June 2019, subject to the outcome on Brexit.  The Court decided that member states must require employers to set up an “objective, reliable and accessible” system for recording the actual number and distribution of hours worked by individual workers each day.  Although the Government should amend the UK regulations to reflect this ruling, this is unlikely to happen imminently; equally, the Health And Safety Executive responsible for enforcing these rules has not yet indicated that it intends to change its approach to "adequate records".  However, employers may see the benefit in future-proofing workspace to facilitate detailed time-recording.

Where the workforce works in an office or factory, monitoring entry and exit is an obvious solution, but care must be taken in the choice of technology and in the implementation process (including consulting with recognised unions or workforce bodies as well as undertaking appropriate impact assessments on privacy).  Organisations are increasingly considering using fingerprint, retinal, voice or facial recognition for secure access, given the obvious benefits over passes or badges, but the use of biometric information presents particular legal issues.  Other systems include timesheets, CCTV, location wearables, keystroke recognition, even pressure pads under desks.  Whatever the method, employee data will be being processed (and, in the case of biometric data, "special category data" require greater protection).  That means compliance with the General Data Protection Regulation is paramount.  UK employers need to have a lawful basis for accessing, processing or retaining any personal data, and employee consent is generally not an answer.  This is because European authorities take the view that an employment relationship is not one of equal bargaining power and therefore consent can never be considered to be freely given by an employee.  There are very limited circumstances in which covert monitoring will be lawful given the invasion of privacy (generally restricted to where the employer has a reasonable suspicion of serious misconduct). Transparency is key: it is essential for organisations to have a privacy policy that explains how and why they collect and process data. The policy must be easily accessible and up to date, so it is critical that organisations understand and can explain the capabilities of the smart buildings which they occupy.  An understanding of the legal issues can enable real estate providers to provide real assistance to clients in this respect.

The public backlash on the recent use of facial recognition at King's Cross Station highlights the reputational risks. The Information Commissioner has identified facial recognition technology as a priority area and has stressed that any organisations wanting to use it must comply with the law and do so in a fair, transparent and accountable way. They must have documented how and why they believe their use of the technology is legal, proportionate and justified.  Employers will need to think carefully whether security is a sufficient concern to justify the use of recognition technology for controlling access to and/or circulation within a building, rather than using other measures, and the data obtained will need to be kept securely and deleted within a reasonable time. 

Discrimination

While there is still a need for physical workspaces to foster personal relationships, collaboration and creativity, they need to work for everyone.  The "smart workplace" and the ability to personalise workspaces can be a real advantage here.

Open-plan offices are coming under attack for reducing productivity and even discouraging face-to-face communication, and certainly there is growing recognition that their suitability depends on the nature of the tasks being done – and the personalities of those doing them.  Recently, there have also been cases highlighting the possibility that certain office set-ups could disadvantage neurodiverse employees. 

The need to ensure workplaces are accessible by those with mobility issues or sight or hearing impairments is well-known and generally well-catered for (for example, ensuring sufficiently wide and clear pathways, ramps/lifts, disabled toilets, hearing loops, adapted or ergonomic furniture, and so on).  Disability discrimination legislation requiring "reasonable adjustments" for disabled workers has been in place since 1995.

Perhaps less well appreciated is the way in which physical workspaces can impact on workers with neurological conditions such as autism, who are likely to fall within the definition of disability.  Although every individual will be affected in different ways, many autistic individuals find changes to routine stressful and can also be over-sensitive to sound, smells, light, colours or temperatures causing pain and distraction.  Hot-desking and open plan offices can be particularly stressful for such workers. Adjustments can include quiet rooms, maximising natural light, enabling individual control of light and temperature, sound-proofing or reduction in smells. 

There are other potential discrimination angles too: access to unisex toilets or changing cubicles can be a key concern for non-binary individuals, the ability to control temperature may assist with menopausal symptoms, breastfeeding employees may need somewhere suitable to express and store milk, and the ability to store food in separate fridges may also be important for those with certain religious beliefs.  A truly "smart" workplace will be an inclusive one, able to adapt to the needs of the workforce and create a productive and engaging experience.

Download your copy of the full report here www.hsf.com/futureofwork

 

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