A Word from the Editor - May 2020

Alex Lock, DAC Beachcroft LLP
Friday, May 1, 2020

The UK went into lockdown on 23 March, five days after I wrote my previous editorial and a month to the day before I am writing these words. Most, if not all of us, will have been working at home for that period, and I suspect, the novelty may be wearing off. For the solicitors among you, it is likely that you are doing the same things day-to-day, but in the same place and remotely. For our barrister colleagues, the change is more profound, with the disruption to the court and tribunal system and cancellation of in person hearings.

The headlines splashes only a week ago in papers such as The Sun and Daily Express suggesting an imminent relaxation of restrictions, with the Prime Minster leading the country out of lockdown, seem misplaced. The UK Chief Medical Officer’s recent briefing made it clear that many restrictions on movement and work will be with us for the foreseeable future, with the chances of a vaccine being produced in the current calendar year rated as ‘incredibly small’.

This means that for many workers and employees, homeworking will be a daily or weekly feature of our working lives. This presents many challenges to both employers and employees, and is likely to present real challenges to employment law as we all adapt to these new ways of working. Usually, changes happen over much longer periods of time. If one considers the rise of the so-called ‘gig economy’, with the new and diverse working relationships that have developed, this happened over a period of years, with an even longer period of adaptation as employment law strove to keep up with what was going on in the real economy. Even changes such as the introduction of the Working Time Regulation led to years of litigation on subjects such as holiday pay and rest breaks.

Working from home was often regarded as a euphemism for not really working and employers were often suspicious of requests to do so, fearing that a lack of control and supervision would lead to employees pulling a fast one, or deviating from expectations on quality or productivity. Much of this fear was probably misplaced, but it could drive greater scrutiny or over-management to keep homeworkers in line. Technology has been a great facilitator of homeworking. It is difficult to conceive of being able to work effectively from home without the myriad of software packages available for video conferencing, screen sharing and remote presentations. Technology can also have a more intrusive – and, arguably, a more sinister – side to it, in terms of monitoring and control. All the technology we use is traceable and auditable, and this carries with it both benefits and risks.

I think it is likely that, as current remote working arrangements become more embedded, the technology we use will evolve at a fast pace and possibly become far more intrusive. There is likely to be more tracking, tracing, recording and monitoring of performance, whereabouts and work produced. Employment law will need to evolve at a similar pace to ensure that the boundaries between the often-competing interests of employers and workers are clearly set out. Employers rightly exert a degree of control over their employees and can expect productivity and quality to be maintained, yet employees can also expect a degree of privacy and autonomy in their work and not to be subjected to a stressful level of scrutiny and control. We shall see over the coming years whether employment law is up to that challenge.

Alex Lock, DAC Beachcroft LLP

The legal content in this article is believed to be correct and true on this date.