Working from home? Your workplace policies still apply

With unprecedented numbers of Australian employees now working from home due to the coronavirus pandemic and social distancing measures implemented by the Government, the Australian workforce has embraced flexibility like never before, with technology as its driving tool.  However, it is crucial for employees to understand that while their workplace environment may have temporarily changed, their conduct is held to the same standard as when they are present in the office, including with respect to any online communications.

 

The new normal – an online workplace

With organisations now actively encouraging employees to leverage the various instant online communication platforms available to them, including Microsoft Teams, Zoom, Slack, and other instant messaging platforms, it is crucial that employees understand their responsibility to communicate in the same way as they would in the workplace itself, and comply with all applicable workplace policies.

There is no doubt that instant messaging can be an effective communication tool – however, employers should be managing the risks associated with this platform in the same way as every other IT, communications, and social media platform. Employers need to be just as vigilant of inappropriate behaviour while employees are working from home, if not more so than they would if employees were working in the office environment. Instant messaging gives the perception that conversations held, or content posted on these platforms is “private” or confidential between the recipients, regardless of their connection to the workplace.

There is a real risk that employees forget or just don't think that communications over these platforms are subject to the employer's workplace policies in the same way other forms of communication are. Communications over these types of platforms can be ripe for allegations of bullying, harassment, including sexual harassment and discrimination. Think sexual harassment through memes, GIFs and other "light-hearted" jokes to break the solitude or inappropriate 'banter' in a chat group to break up the day.

Cyberbullying "at work"

Our current working from home landscape also exposes employees to increased risk of being the subject of cyberbullying, with employees utilising online communication tools to expose other employees to negative and attacking online behaviours by way of email, instant messaging and video conferencing platforms.

Such bullying can also go unnoticed by colleagues and unchecked by HR/management. An employee is bullied at work if a person or group of people repeatedly act unreasonably towards them, and this behaviour creates a risk to the employee's health and safety. Confusion often arises around what is considered to be "at work", particularly in the age of remote working, flexibility and online communications at employees' fingers tips at all times.  While the law is constantly evolving with respect to the concept of "at work", it is accepted that bullying does not necessarily have to occur at the actual workplace, however, it must occur while the worker is actively engaged in the performance of work or some other activity which is authorised or permitted by the employer. This may include a lunch break onsite, a work trip outside of the normal working area, accessing social media while onsite, and relevantly, when working from home.

It is important to remember that employers and individual employees can be liable, vicariously and personally, respectively, for inappropriate conduct that occurs "at work", which crucially extends to the inappropriate conduct of employees working from home. Employers also must remain cognisant of their obligations from a work health and safety perspective to ensure that people are not being subjected to bullying type conduct.  With the Australian workforce largely working from home it may even be easier for employees to be bullied without that being known, seen or heard.

Workers Compensation Claims

Employers should, of course, be currently taking steps to ensure that employees are taking steps to set up home offices/workspaces to be safe to avoid physical injuries, however, it is equally important to remember that employees who have been the victims of unlawful treatment, including bullying behaviours, adverse action, and harassment, are also able to bring workers compensation claims for any psychological injuries sustained as a result, provided they are able to establish that the injury was arising out of or in the course of their employment.  This includes any psychological injuries sustained while working from home.

Strategies to reduce inappropriate behaviour while working from home

In our experience, it is apparent that employees seem much more likely to be casual and even inappropriate over instant messaging communications than in person or via email. Given the heavily increased use of such communication methods while employees are working from home, and in order to mitigate the risks associated with employees engaging in inappropriate conduct while working from home, it is recommended that your organisation consider the following tips:

  • Stay in touch! Maintaining regular contact with employees is now more important than ever, and HR and management functions should seek to ensure that they maintain regular contact with their employees.

  • Remind employees of workplace policies in force, particularly Social Media and IT Usage policies, and where these policies can be accessed.

  • Employees should be reminded that anything put in an instant message should be something that they would be willing to say to a colleague's face in person or via email.  If this is not the case, the communication is likely inappropriate.

  • Remind employees that all communications over the organisation's IT systems, including all instant messages on chat programs such as Teams, are stored by the organisation and can be reviewed at a later date.

  • If you have specific concerns about behaviours or a pattern of behaviours, be prompt in addressing these concerns.

  • Ensure that you have a Workplace Surveillance Policy and/or employment contracts that provide sufficient notice to your employees that you may monitor any online communication made using the organisation's IT systems.

  • Review your communications software to ensure data is retained and accessible to the organisation.  Be careful – it can be more difficult on some communication platforms than others to obtain message history.

  • If your communications software allows for employees to record video calls, ensure all employees are aware of this feature and your organisation's policies regarding the recording of video calls and notification/consent of such.
Finally, it is important to remember that in times of uncertainty, culture is driven from the top, with employees looking to management teams and executives for direction. On this basis, it is important that HR and management teams are leading by example and ensuring all of their own behaviours and communications are appropriate, not only those communications which are widely disseminated but also communications in individual and smaller team situations.

This is a time of great uncertainty and worry for employees, where communication is vital and any light relief is, generally, welcomed. While we certainly don't want to be the fun police, it is important to remember that there is often a fine line between the 'banter' and the unlawful act. With employees now sitting behind cameras or at the end of phones and instant messaging platforms, it's even more difficult to gauge colleagues' reactions and perceptions. Intent is not relevant to a legal defence. This is not the time for HR and management to have to spend time managing employee grievances or complaints about inappropriate workplace conduct when they are dealing with business continuity plans, workforce planning and the many other issues that come with navigating the organisation through this crisis.

If you would like any support working through the challenges of employment/HR law issues presented by the COVID-19 pandemic, including working from home, please get in touch with McCabe Curwood's Employment group.

Contributors

Elisa Blakers Lawyer