As published in NZLawyer magazine
When I first started working as a lawyer in the Wellington office of one of the big firms, my secretary had worked at that firm, as a legal secretary, for longer than I had been alive. Things had of course changed over those 30 years and I imagine that her role when I worked with her, which involved, among other things, creating PowerPoint presentations, typing up digital dictation on a computer, organising seminars and formatting documents, was significantly different to her role when she started in the seventies. I used to charmingly joke that when she started she rode to work on the back of a dinosaur and she was taking dictation from authors using a chisel and a stone tablet. This example illustrates the fact that technology and the development of it, has an impact on the way we do business. It also has an impact on employment law and the rights and obligations of the parties to an employment relationship.
Changes to a role over time
The global financial crisis has led many businesses to look at their structure, and in many cases, to propose redundancies as a way of reducing headcount and cutting costs. Examples include firms with a sales manager and a marketing manager proposing that they can disestablish those roles and proceed with one new role; sales and marketing Manager. The reality is, you can't guarantee that your role, in its current form, will exist for the foreseeable future and employees, now more than ever, need to be prepared to adapt to changes.
The threshold for redundancy is generally accepted to be a 20 to 25 per cent change to the role. By that I mean, if an employer is proposing to change an employee's role by 20 to 25 per cent, that cannot be done unilaterally and requires consultation with the employee about a proposal to make such change. By comparison, roles naturally develop and evolve over time. In the example of my secretary above, her role 30 years later may have been more like 80 per cent different to the role when she started, but because the changes were gradual over time, a redundancy situation was never triggered.
There is some debate about the extent to which an employer may limit themselves by providing the employee with a job description. Section 65 of the Employment Relations Act 2000 requires that an individual employment agreement must include a description of the .work to be performed. However, where a fulsome job description is provided, employers need to be mindful of reserving their right to require the employee to perform other duties as they may arise over time. To this end, we recommend that a job description is expressed as being an indicative job description and that it is clearly non-exhaustive. A robust employment agreement will include express clauses which state that the job description is indicative and non-exhaustive and that the employer reserves the right to require the employee to perform other duties that may be required, within the employee's skill set and within the scope of the role.
With advances in technology comes an increased ability to be contacted. While that can be a good thing in terms of giving greater flexibility to reply to emails, work remotely, and be contactable while travelling, it is important that the employer's expectations are clear. For example, do you expect employees with iPhones and Blackberries to check and respond to emails in the evenings and on weekends? What about on annual leave? Do employees have Bluetooth in their vehicles so they are complying with the legislation regarding the use of mobile phones in vehicles?
An article I read recently included this sentence which I liked, but can't claim as my own: "Switched on companies will increasingly realise the value of getting employees to switch off". It provided an example that German company Volkswagen turns off mobile email, for some of its employees, 30 minutes after a shift ends, meaning those employees cannot use mobile email after that time. That makes it clear the employee is not expected to respond to work emails at that time. Global company Nike apparently has a dedicated space for staff to use to take a nap or to meditate, to encourage rejuvenation away from technology. This presumably is at head office, rather than in the retail stores!
What these examples illustrate is the need for an employer in this day and age, with technological advances as they are, to turn their mind to what is and isn't acceptable in regard to technology and contactability. We all know that the Holidays Act 2003 provides an entitlement to annual holidays and that one of the stated purposes is to provide opportunities for rest and recreation. That is inconsistent with an expectation that employees are contactable by clients and responding to emails while on leave.
That doesn't of course address the problem of the diligent employee; he or she who says he or she is happy to be contactable and whose idea of a good time is sending important emails about TLis (thorny legal issues) from a sun lounger somewhere in the Pacific. The reality is, the onus is on the employer to ensure that leave is taken: making sure employees take leave regularly and actually genuinely take leave (as opposed to just working overseas) is important. Making sure employees are regularly taking leave is important in terms of ensuring your employees remain fresh and productive and managing annual leave liability in a financial sense, but also from a risk perspective - issues of theft and fraud and other irregularities are often found when an employee takes leave. Beware the employee who vigorously resists leave. No one employee should be indispensible (and if they are, that will be another area of risk for the organisation).
When my secretary started working in the legal services industry, Facebook, Twitter, and Linkedin certainly weren't around. Employers didn't have to consider issues like:
- whether employees would attend staff functions and post photos on social networking sites or blogs;
- whether it was appropriate for employees to be 'friends' with clients on Facebook;
- whether employees' connections with clients on Linkedin were connections and information the employee could take with them on termination of employment;
- whether an employee's tweets or comments on Twitter are the employee's personal views and whether they may reflect badly on the organisation.
Those are all issues that astute employers ought to be turning their minds to and, potentially, having policies to cover and address.
When it comes to technology it is perhaps best to adopt the approach – you can't stop progress. Employers need to ensure that their organisation adapts to new technology so that it functions as efficiently as possible from an operational perspective, but also to avoid risks from an employment perspective.