Looking back over the last century, it would be hard to deny that technology has massively changed our working lives. Employees may attend a virtual rather than a physical office, many tasks previously carried out by humans are now automated and employees are often still contactable (and expected to be so) during non-working hours. Thus a clear distinction between being “at work” or not being “at work” has vanished in many areas and even in very traditional working environments structures and processes have adapted under the increasing influence of technology.
What impact do these changes have on employment? Below, we ask a number of questions and highlight the wider impact of the growth in less conventional working arrangements.
All over the world, legislators and employment courts are increasingly being asked to consider and define the nature of an employment relationship and of various 'employment' statuses, and apply these basic principles to new and increasingly convoluted relationships and ways of working. For some countries, such as the UK, there are more than two employment statuses, which can add to the difficulties in assessing and determining status.
Does the person who delivers my pizza or an Uber driver have employee (or worker) status? The question of the employment status of individuals involved in the gig economy, click-working or crowd-working has been raised by politicians, governments and in front of employment courts across the globe.
A number of the technological applications used to manage gig economy businesses, such as tracking or location applications, messaging applications and so on, have raised interesting questions as to the use and treatment of data generated by these companies.
Recently, the European Union has adopted a new Directive (EU) 2019/1152 on transparent and predictable working conditions in the EU with the aim to implement standards on the information of workers on the essential working conditions. The considerations at the beginning of the directive include the following statement: “[…] labour markets have undergone far-reaching changes due to demographic developments and digitalisation leading to the creation of new forms of employment, which have enhanced innovation, job creation and labour market growth. Some new forms of employment vary significantly from traditional employment relationships with regard to predictability, creating uncertainty with regard to the applicable rights and the social protection of the workers concerned. [….]”.[2]
What makes an employee an employee? The answer to this question is key in employment law and the best example to show the massive impact of technology on employment.
When and where is an employee “at work”? If physical presence is not required, what determines if someone is “at work” or not? The traditional idea of going to certain place, being present there for an agreed number of hours per week no longer satisfies the interests of neither employers nor employees.
Flexibility is an increasing expectation of employees when it comes to working arrangements and one emerging trend that employers are seeing in practice is increasing requests to work from home. In 2015, the Netherlands adopted a new law that allows employees to request to work from home and employers can only refuse such request on the basis of reasons as defined in the act. In the UK, employees are similarly allowed to make flexible working requests, which the employer can only decline on the grounds set out in statute.
There are data privacy and confidentiality implications of such arrangements. Employers will need to take steps both to facilitate flexible working, assuming this is a route they wish to explore, and to ensure the safety and security of any data and systems accessed by employees whilst not physically on the employer's premises. Appropriate policies and systems will be needed for this, employee training will be important in ensuring employees are aware of a need to comply with the standards required, and this could entail additional monitoring and security checks (which carry their own risks).
On a more practical note, if technology allows for remote working, when does working time start and end? If employees are provided with mobile devices anyhow, can they be requested to check their emails even beyond normal office hours? And what are office hours, if no office exists? Are strict regulations on working times still adequate in light of such flexibility or does employee protection require even stricter rules?
Spain has recently adopted a new law allowing employees to switch off their mobile devices to protect employees from being available 24/7. Similar approaches are also under discussion in other countries.
Where physical presence is not required, organisations can operate across borders without the need for official premises. From a business perspective, it raises the question as to whether a cross-border global organisation could form an "undertaking" or organisational unit as for example defined under the Acquired Rights Directive. Could such an organisation transfer under a transfer of business? It also raises questions as to whether employees in other countries could count towards national thresholds, such as those applying to the requirement to establish a Works Council in Germany.
Even in traditional working places, the development and increasing influence of technology can hardly be avoided. Very few, if any, workplaces function without computers, mobile phones and other devices and even traditional areas of industry (such as manufacturing) are increasingly reliant on technology.
The cross border transfer of data and the use of cloud based standard software are increasingly common and in many cases cannot be avoided. This raises risks for the business, and makes appropriate staff training as well as security and technical measures vitally important to ensure that such data is handled and processed safely and compliantly.
Further, this potentially raises the need for (and risks associated with) intentional or unintended employee monitoring. This may be to ensure the proper transfer and use of data by employees, ensuring the security of access and use of any employer systems, but may also be for more mundane reasons – such as checking whether an employee is actually working or is actually where they are meant to be. National courts have considered a number of questions, such as whether monitoring only applies where an employer provides an employee with a technical device such as a GPS for driver or whether monitoring could also take place when an employer uses social media and allows posting of comments on its social media presence (which the German Federal Employment Court has considered in various cases).
Paper-based application and recruitment processes are increasingly rare and as are paper-based personnel files; employers are increasingly managing such processes and storing relevant information electronically. This opens employers up to greater obligations, and employers must determine how long they can store and retain such information and any requirements with regard to deletion and destruction.
Taking this in the round, technology has a huge impact on all aspects of employment and created many new areas of confusion and complexity for employees and employers, as well as legislators and employment courts, worldwide to consider and manage.
[1] Report: Corporate Avoidance of the Fair Work Act
[2] See Directive (EU) 2019/1152 on transparent and predictable working conditions in the EU, initial consideration no. 4
