Q: When an employer tries to adjust his establishment under influences of ICT to the new working environment, can such an employee under him refuse to do so?

A: There may be governing express and implied terms in any given employer-employee contract. Most such contracts prepared for working places influenced by ICT have included express, flexibility and mobility clauses to face new challenges and compete the competition in any given business, trade or service. There must be some express and flexible clauses governing the changes in the employment contract include if nature of the job needs to be changed. The employer cannot force unilateral variation of the terms and conditions of the employment contract. Otherwise, employees may refuse to accept new changes to their employment even though they are not unfair. However, sometimes courts have predisposed towards flexibility keeping the enterprise running efficiently.

Sunil D.B. Abeyaratne

Who is responsible for adjusting the working culture upon changing environment of the working place?
This responsibility depends on the size of the enterprise. If the establishment is a large scale enterprise generally, it is the duty of the employer to provide necessary training improving the employee/s' competence and adjust them for the new working conditions. On the other hand, if the new working culture created in a medium or small scale enterprise under the influence of ICT development, sometimes the employees of such working place would get new experience voluntarily due to number of valid reasons.

Whether the employee is attached to a large or medium or small scale enterprise, there should be a mutual consent between the employer and employee to update applicability of the necessary skills or knowledge of the employee for the establishment and to provide necessary guidance and training by the employer to improve the same skills of the employee. If the employee is purposely refusing to show necessary skills or gain required knowledge under new work environment it can lead to a fair dismissal of the employment of such employee.

Q: What happened to the traditional employer-employee relationship under Information Society?
A:In the information society, new trend is to treat workers as independent contractors and not employees and the employer tries to retain only `core workforce' depending on the requirement of the enterprise. This new trend will create serious issues on employer-employee relationship and there is no doubt that the traditional control test to decide the nature of the service rendered whether as employee or independent contractor has been outdated since the employee has become integral part of the establishment under Information Society.

Q: Can access to e-mail and the Internet by employees lead to create problems at work place?
A: Under Information Society, Employer allows the employee to keep private communication via e-mail addresses or intranet or certain websites of the Internet used by the establishment. Employees may feel to give less weight on an e-mail message send through office e-mail account that carries a defamatory message than an ordinary letter containing the same materials under a letterhead of their company.
Sexual harassment and racial harassment by use of e-mail are serious issues in a modern work place.
Under general principle of vicarious liability, employer may also be liable for the actions of his employees caused during the employment and the employer has to pay damages on such occasions. However, the Employer can bring defenses subject to the nature of his relationship with the employees.
How to take precautionary steps avoiding misuse of e-documents, official e-mail accounts, internet and intranet by his employees?

The employer has to introduce new terms and conditions relating to use them at the work place or outside. In the meantime it is the duty of the Employer to respect privacy of the employees and to draw a line between `how and where' the privacy of the employee and necessity to monitor e-transactions of the establishment.

Exceeding the limits of rights given for the employee to access the network of the work place can commit an offence of obtaining illegal access to the computer or system of the employer's computer or network (computer hacking) Further, employee has no right to modify employers' data base or software without the consent of the employer. If an employee involved in such an action, he will commit a computer crime.
As a result specific terms and conditions shall be included into new service agreements for the purpose of adjustability and suitability of the establishment for the Information Society depending on the extent of applicability or conversion of a working place from traditional system into a modern environment of the enterprise.