05-05-2025
Back to the office — can your boss force you to go?
South African labour law hasn't kept pace with the mass migration to home offices, shared dining tables or kitchen counters. While remote work has become a new default, it presents a legal grey zone that could trip up both workers and the companies relying on them.
Once a pandemic lifeline, remote and hybrid work are now permanent fixtures of South Africa's employment landscape.
Logging in from home might feel like business as usual, but the right to do so can be shaky in legal terms. Meanwhile, employers hoping to drag teams back to the office face legal, ethical and operational complications.
'Remote working is not specifically catered for in [South Africa's] current legislative framework,' says Yvonne Mfeka, director of employment law at Cliffe Dekker Hofmeyr. 'However, the ability to work remotely will be construed as a benefit for purposes of the Labour Relations Act (LRA).'
The contract conundrum
The Basic Conditions of Employment Act (BCEA) mandates that employers provide written particulars of employment. If your office has shifted to your living room, your paperwork needs to reflect that.
'Updated contracts protect both the employer and employee by clearly outlining expectations, responsibilities and rights in the new working arrangement,' Fatima van Toorn, managing member of FvT HR consulting, explains.
Data protection, confidentiality, electricity costs, backup power and even internet expenses should be ironed out in writing. 'There should be clear stipulations about who bears the cost for internet, electricity and equipment needed for remote work,' Van Toorn says.
While it may seem like a perk, Van Toorn warns that remote work should always come with a built-in back door: 'Contracts should include provisions about the employer's right to revoke the employee's concession to work remotely and revert to office-based work if necessary.'
Productivity gains and losses
For some, remote or hybrid work has been a gift of time and efficiency.
Van Toorn says that many of their clients have retained remote working or hybrid arrangements since the pandemic, precisely because performance remained strong. 'Remote work has had a positive impact on employees who were accustomed to spending many wasted hours sitting in traffic,' she says.
But not every home office is a sanctuary of focus and flow.
Freelance copywriter Havana Duancey, who has worked remotely part-time since 2021, offers a more nuanced take. 'Working remotely was conducive to my productivity because it allowed me to work around my studies and choose my own hours,' she points out. 'However, I'm definitely more productive in a group setting […] communication was much more effective in person.'
Duancey's experience highlights a common concern: while remote work offers flexibility, it can erode team cohesion and mental health. 'My mental health definitely benefits from a separation between work and rest,' she says, 'so I would sometimes struggle setting boundaries between work and rest time while working from home.'
How does this affect you?
If you're an employee:
Check your contract. If it doesn't mention hybrid or remote arrangements, you may have less protection than you think.
If remote work is listed as a benefit, your employer can't yank it without your consent.
You still have rights such as rest periods and fair treatment, even if you're working in slippers.
If you're an employer:
Update contracts and create clear remote work policies.
Know that you can require a return to the office, but only if it's fair, lawful and contractually sound.
Protect your company by addressing compliance and performance management proactively.
The risks of remote
Keeping a workforce together that's scattered across suburbs, cities or provinces is a puzzle of compliance.
'The Occupational Health and Safety Act requires employers to provide a safe working environment,' Van Toorn says. 'Ensuring home workspaces meet safety standards is challenging to monitor and enforce. Liability for injuries sustained while working from home can become a challenge.'
There's also the matter of working hours and overtime. The BCEA regulates these tightly, but enforcing them in a remote context is a different beast.
'Monitoring actual working hours becomes more challenging,' Van Toorn notes. 'The blurring of work-life boundaries can lead to employees working outside of agreed hours, raising questions about compensation and compliance.'
Other issues include employment equity — where remote work may disadvantage employees without reliable home setups — and cross-border complications. 'Employees might work from different provinces or even countries,' Van Toorn says, which can create 'complex tax implications and questions about which labour laws apply.'
Can they really force you back to the office?
Short answer: yes.
Long answer: it's complicated.
Mfeka confirms that employers could require their employees to return to the office. However, they had to do so fairly and lawfully.
'To the extent that an employer compels an employee to return to the office without reaching an agreement, this would potentially constitute a breach of contract of employment,' Mfeka says.
Changing your work location, just like changing your salary or job title, requires consent. Thus, you can't be dragged back into peak-hour traffic without some paperwork and a conversation. DM
