The Legal Challenge of Technifying the Workplace

The benefits of modernization cannot be denied. The proliferation of apps and communication technology, expansion of data storage, and improved retrieval and sharing capabilities has connected people and businesses in ways we never thought possible. But workplaces are more than just fixed components of technology, equipment and furniture. They are comprised of ever-changing culture, policies and, most importantly, individuals — each of whom has a different aptitude (or lack thereof) to learn and use new technology.

Many employers choose to hire for tech skills rather than train for them. However, recent global studies have found that retraining and teaching new skills to existing employees is just as, if not more, important than hiring new (read: young) tech-savvy employees¹. From an employment law perspective, issues may arise when an employer wants to retain incumbent employees who possess the valuable institutional memory of its existing workforce and rolls out new technology initiatives.

There are three main employment law concerns tied to technifying the workplace.

Accommodation and disability

Employees with disabilities (“EWDs”) may feel the impact of technological changes more acutely than those without disabilities. An employer’s general obligation to EWDs is to accommodate those disabilities to the point of undue hardship. For employees whose disabilities have been previously identified, employers must consider whether the new technology reduces, increases, varies or has no impact on their accommodation obligations.

It is as important, though, for employers to anticipate the possibility that there may be EWDs whose disabilities were not previously “visible” or relevant in the workplace. For example, an employee with a visual impairment may not be able to use a new tablet-based inventory system.

To ensure that any previously unidentified disabilities are properly accommodated in the new workplace, employers should include a reference to their AODA, Human Rights Code and other legislative obligations in the announcement about the new technology. As well, employers should specifically request that employees:

1. Self-identify any issues that will arise in the new workplace; and
2. Provide written medical evidence of the need for any accommodation.

It is critical that employers work with EWDs to ensure that the “new” workplace is appropriate given their accommodations. Upon learning of a disability, an employer should accept requests for accommodation in good faith and consult with the employee to establish an accommodation plan.

Older employees

One of the more common stereotypes about older employees is their unwillingness to participate in or benefit from technical training. Employers who act on these assumptions have been sanctioned by human rights tribunals for age discrimination.²

It is a costly mistake for employers to assume that there is no value to including older employees in retraining or the rollout of new technology. Regardless of assumptions about an employee’s amenability to training or how many more working years they have ahead of them, they should all receive the same training opportunities.

That being said, if any employees — including older employees — have difficulty using technology, employers should first assess whether there are any barriers to use that can be addressed. For example, an older employee who did not take a keyboarding class in school may need additional time to adjust to a new software-based technology. Similar to many educational environments, there is seldom an effective one-size-fits-all approach to teaching. Employers who are mindful of the inherent differences in learning styles and who tailor their training plans to employees’ needs will eliminate the age-based discrimination that is often linked to modernization.

Constructive dismissal

The intention of any technology upgrade is to create a more efficient workplace overall. However, the changes may have a greater impact on a particular individual, or position, such that they fundamentally alter the nature of a particular employee’s function. Such changes could lead to a constructive dismissal claim.

Broadly speaking, a constructive dismissal occurs when an employer makes a unilateral and fundamental change to an employee’s working conditions. One example is when a retail business shuts down its storefront operations. The employer may transfer some of its on-floor sales representatives to a centralized call centre. This change, arguably, fundamentally alters the nature of these positions. If an employee does not consent to these changes, he or she may claim constructive dismissal, which means that his or her employment has been terminated. In such cases, the employee is entitled to notice or pay in lieu of notice of termination.

While adapting to new technologies will inevitably result in changes to roles and responsibilities, employers can minimize the likelihood and strength of constructive dismissal complaints by:

• Providing significant advanced notice of any changes;
• Being mindful of the greater impact of the changes to certain employees and certain positions, and ensuring that they receive training and ongoing support, even after the changes are implemented;
• Taking into consideration the impact of any changes on performance issues and using non-disciplinary approaches to performance improvement at the outset; and
• Offering alternatives to employees who object to changes to their role and working collaboratively with them.

“Employers who are mindful of the inherent differences in learning styles and who tailor their training plans to employees’ needs will eliminate the age-based discrimination that is often linked to modernization.”

Conclusion

Technification is a necessity in the modern workplace. Employers ought to map out a proactive plan for training, accommodation and ongoing support during these changes, and pay particular attention to EWDs, older employees and employees whose jobs will change the most. By balancing the benefits of technology with strong human resource practices, an employer can minimize the potential legal claims associated with these necessary changes.

¹ Liri Andersson, Bruno Lanvin & Ludo Van der Heyden, “Digitalisation Initiatives and Corporate Strategies: A Few Implications for Talent” in Bruno Lanvin and Paul Evans, eds, The Global Talent Competitiveness Index 2017 (Fontainebleau, France: INSEAD, 2016) 51.

² See Andronik v. Guildford Golf and Country Ltd., 1993 CarswellBC 3841. The Employer Respondent discriminated against the Applicant (an older employee) by not assigning her certain tasks and subjecting her to an unwanted transfer due to her age. In this case, the British Columbia Human Rights Council found that the Respondent’s belief that older individuals have more difficulty in adapting to technological change and would find it difficult to operate the computer system, was impressionistic, discriminatory and a breach of the Code.