Can employers change workplace policies without consultation?

Introduction

In early May 2025 employees of the South African Health Products Regulatory Authority (SAHPRA) staged a protest during their lunch break in response to the organisation's decision to revoke its remote work policy. Employees who had been operating under a hybrid policy following the Covid - 19 pandemic were instructed to return to full-time office work on March 1, 2025. The main complaint by the employees is that the decision was made without sufficient consultation.

An important legal and governance issue in business is determining when employers are allowed to change workplace policies. This article examines the conditions under which employers may modify workplace policies and explores the related legal implications.

Distinguishing between contracts and policies

A good place to start would be to discuss what the key differences are between an employment contract and an internal company policy.

An employment contract is a legally enforceable agreement that binds the employer and employee.  Section 29(1) of the Basic Conditions of Employment Act 75 of 1997 (BCEA) requires employers to give written employment details, including working hours and the location of where the work is to be performed. These employment details are usually communicated in an employment contract. Modifications to these details can only take place after sufficient consultation and must be set out in writing. 

Workplace regulations, such as hybrid work arrangements or internal disciplinary standards are typically non-contractual and flexible, allowing the employer to amend the policy in line with business needs.

The ease of amending workplace policies

In the case of Gallagher v Norman's Transport Lines (Pty) Ltd 1992 (3) SA 500 (W), the High Court acknowledged that policies such as disciplinary codes serve as flexible guidelines that may be adjusted unilaterally by employers.

In Denel (Pty) Ltd v Vorster (13/2003) [2004] ZASCA 4 the SCA ruled that a disciplinary code, expressly included in employment terms has binding contractual effect. The judge of appeal, Nugent JA concluded that policies must be explicitly part of the employment contract to be legally binding. Therefore, mere reference does not automatically make a policy part of the contract.

Taking employees’ views into consideration when amending policies

While employers may amend workplace policies as they deem necessary, they should consider section 23(1) of the Constitution of the Republic of South Africa, 1996, which grants everyone the right to fair labour practices. Additionally, section 186 of the Labour Relations Act 66 of 1995 (LRA) may be implicated if any changes to workplace procedures negatively impact the conditions outlined in the employment contract to the detriment of the employee.

Sections 23 of the Constitution and 186 of the LRA do not require employers to consult with employees when changing workplace policies, however, when it is envisaged that a policy change may receive some resistance, it is prudent for employers to consult. This shows good faith on the part of the employer and may mitigate the potential for litigation or disruption of work due to strike or protest action.

Conclusion

The SAHPRA protest underscores the emerging conflict between organisational decisions and the work-from-home model in a post-pandemic environment. Employers retain the authority to modify workplace policies not expressly included in employment contracts; however, failing to engage in consultation may adversely affect employee morale and organisational trust. In today's dynamic workplace, businesses must find a balance between operational requirements, transparency, and respect for their employees.