Remote and hybrid work is now a settled part of South African working life. At the same time, a growing number of employers have been calling staff back to the office for some or all of the week, and some employees have pushed back. Both trends raise the same question: what does the law actually require?
South Africa has no statute dealing specifically with remote work. The rules come from the employment contract, the Labour Relations Act 66 of 1995 (LRA), the Basic Conditions of Employment Act 75 of 1997 (BCEA), and legislation on health and safety, data protection and workplace injuries. Applying these laws to a kitchen table or a co-working space is not always obvious.
A clear remote work policy, aligned with your contracts, is the best way to avoid disputes. This article explains the main legal risks and what your policy should cover.
Is remote work a right or a privilege?
The answer depends on where the arrangement comes from.
- The contract. The BCEA requires employers to give employees written particulars of employment, which include the place of work. If the contract makes remote work a term of employment, the employer cannot simply withdraw it. Changing it requires agreement or a fair process.
- A policy or a concession. If the contract names the office as the place of work and remote work was allowed under a policy or as a discretionary concession, the employer is generally entitled to amend or withdraw the policy, provided it acts reasonably and gives fair notice.
- Established practice. The grey area is where remote work started as a temporary measure and continued for years without any formal change. Employees may argue that it has become an implied term or a settled practice. Each case turns on its facts, including what was communicated and how long the arrangement lasted.
Where remote work forms part of the terms and conditions of employment, a unilateral change may be challenged. Section 64(4) of the LRA allows employees to refer a dispute about a unilateral change to their terms and conditions and to demand that the employer restore the previous position while the dispute is resolved. If employees will not agree to a contractual change, the employer’s options become more limited and may, in some cases, involve the process in section 189 of the LRA for changes based on operational requirements. That is a significant step and requires careful advice.
Calling staff back: doing it fairly
Even where an employer is entitled to require office attendance, how it does so matters. Practical steps include:
- explaining the business reasons for the change, such as collaboration, training, supervision or client service;
- consulting with employees, and with any recognised trade union, before finalising the change;
- giving reasonable notice so that employees can arrange transport and childcare; and
- considering individual circumstances, including employees with disabilities, caregiving responsibilities or medical needs, where a refusal to accommodate could raise unfair discrimination concerns under the Employment Equity Act 55 of 1998.
An employee who refuses a lawful and reasonable instruction to return may face discipline. But dismissing an employee for refusing to accept a change to terms and conditions of employment can be automatically unfair under section 187 of the LRA, so the distinction between a lawful instruction and a contractual change is critical.
The legal risks of remote work
Health and safety
The Occupational Health and Safety Act 85 of 1993 requires employers, as far as reasonably practicable, to provide and maintain a working environment that is safe and without risk to health. That duty does not disappear when the workplace is a home office. Employers should consider ergonomic guidance, self-assessment checklists and a process for reporting hazards.
Injuries at home
The Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) covers injuries arising out of and in the course of employment. An injury at home can qualify if the employee was working at the time. The policy should define working hours and the designated work area to reduce uncertainty.
Data protection and confidentiality
Under section 19 of the Protection of Personal Information Act 4 of 2013 (POPIA), a responsible party must secure the personal information in its possession. Home networks, shared devices and printed documents create real risk. Your policy should address approved devices, VPN use, password management, screen privacy, document disposal and breach reporting. Monitoring remote employees is possible, but it must be lawful, proportionate and disclosed, and should comply with the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002.
Working time and overtime
The BCEA’s limits on ordinary hours and overtime apply to employees earning below the threshold set under the Act, wherever they work. Being “always available” can quietly lead to unpaid overtime claims. Set clear expectations on working hours, availability and recording time.
Cross-border remote work
An employee who works from another country, even temporarily, can create tax, social security, immigration and employment law consequences in that country. Many employers now require prior written approval for any work outside South Africa.
What your remote work policy should cover
- Eligibility: which roles qualify and how employees apply.
- Whether remote work is a contractual right or a revocable concession.
- Attendance requirements for hybrid roles and how they may change.
- Working hours, availability, overtime approval and time recording.
- Equipment, costs and reimbursement, including data and electricity where applicable.
- Health and safety: home office standards and incident reporting.
- Information security, confidentiality and POPIA compliance.
- Monitoring, with clear disclosure of what is monitored and why.
- Performance management and communication expectations.
- Working from other locations, including abroad.
- The process for amending or withdrawing remote work.
The policy should be consistent with your employment contracts. If it is not, update the contracts for new hires and consider how to deal with existing employees.
How O’Reilly Law can help
We draft remote and hybrid work policies and employment contracts, advise on return-to-office plans and consultation processes, and represent employers at the CCMA and in the Labour Court when disputes arise. We also advise on POPIA compliance for remote teams and on employee monitoring.
Contact us for advice on your remote work policy or return-to-office plans.
Related reading: CCTV, biometrics and employee monitoring under POPIA · The new Code of Good Practice: Dismissal
This article is general information and not legal advice. Correct as at November 2026.