Ruxton McClure: COVID, Tele-working and the New Normal

Ruxton McClure:

COVID, Tele-working and the New Normal

Ruxton McClure is a dispute settlement lawyer in the Legal Affairs Division of the World Trade Organization. He previously worked for the Appellate Body Secretariat. Ruxton holds a Juris Doctorate from The Ohio State University Moritz College of Law and an LLM in International Economic Law and Policy from the University of Barcelona. He also graduated from UCT with a Bachelors of Social Science in Philosophy, Politics and Economics and Honours in Political Science. Any views expressed or implied in this article are his alone and are not attributable to or binding upon the WTO Secretariat.

When the Editor invited me to submit an article for this edition of Altum Sonatur, she made the completely natural suggestion that, in light of my position as an international lawyer (I work for the Legal Affairs Division of the World Trade Organization), it would not be out of place to write something with an international flavour. Having chosen to ignore her (almost) completely , and write instead about my perspective on the “New Normal”, I confess to feeling a slight sense of guilt.

To appease my conscience, I therefore feel compelled to segue awkwardly into my main point by detouring through a very brief discussion of the impact of COVID on international law. To put it as succinctly as possible, the practice of international law appears to have adapted to the challenges posed by the COVID pandemic in much the same way that domestic law has done. In March and April 2020, many had hoped that the situation would be resolved within a matter of months, if not weeks. As those hopes faded and eventually died, international lawyers, governments, and non-governmental organisations overwhelmingly adapted their procedures and practices in order to ensure that the show can go on. Challenges continue to arise, and they are addressed, as they have been at the domestic level, through the wonderful world of technology. The show must go on.

Like many domestic courts around the world, a wide number of international fora have embraced the use of technology to host “virtual” hearings, by which parties to international disputes can participate using online platforms. One challenge that is perhaps unique to the practice of international law is that participants in online hearings and meetings can be (and often are) quite literally on opposite sides of the planet. As a consequence, participation in virtual hearings and meetings can entail some temporal acrobatics. Some participants in a virtual hearing may find themselves pleading before the tribunal in the middle of the night, while their counterparts are skipping breakfast, and the adjudicators are enjoying the middle of their working day.

The most fundamental aspect of the New Normal that I experience on a daily basis, however, is not unique to

international law. Specifically, “working from home” has become the New Normal (at least, for those of us who can do so). Office-workers, including lawyers, are the most obvious “beneficiaries” of this development.

The French term for “working from home” is télétravail (literally “tele-working”). In the working world of yesteryear, office-workers were typically expected to be spatially constrained by the four walls of their place of work for a set period of time, each working day. Even in firms employing billable hours, where what truly mattered is not where the lawyers worked but how many hours they worked, the expectation of office presence persisted. The fear of managers was presumably that a lack of oversight, in the form of physical presence at the workplace, could result in “telly working” swiftly replacing “tele-working”.

The New Normal, however, has thrown a COVIDshaped spanner in those works. Under present conditions, managers are obviously unable to assess employees’ work performance based on their attendance at the office and it is increasingly difficult for dodgy colleagues to paper over poor performance through the cunning use of office politics. When everybody is working from home, results and quality of work are essentially the only real benchmark for an employee’s performance.

With this in mind, perhaps the most interesting observation about the New Normal is that, in businesses where staff can work from home, the show has indeed gone on. Businesses employing office-workers have not crumbled en masse simply because their staff are no longer working 9-to-5 in the workplace. A lack of oversight has not led to “telly working” replacing “tele-working”. To the contrary, since performance can now exclusively be measured by results, the flexibility for staff to structure their working day in the most productive manner can actually benefit employers, through increased productivity, notwithstanding that employees can now collect their kids from school, pop out to the shop, or take a break when they feel like it. COVID has, rather ironically, demonstrated that society will not collapse simply because office workers aren’t in the office.

Of course, in the grand tradition of all dialectics, progress in one form is inevitably counterproductive in another – with the increased flexibilities born out of COVID, the boundaries between office-workers’ personal and professional lives are being blurred, and constant working from home necessarily has an impact on social relationships among colleagues. As with most things in life, some semblance of balance is most probably the order of the day.

In any case, as mass vaccinations continue around the globe and societies gradually return to their preCOVID trajectories, one wonders whether we will learn anything useful from this otherwise horrific experience, or whether, like Sisyphus, we will simply be expected to return to our daily commutes. Speaking of which, early estimates of the environmental impact of COVID are unsurprisingly uniform in revealing a significant reduction of carbon dioxide emissions attributable to COVID. Perhaps, just perhaps, a shift in mindsets about the practicalities of regular and consistent working from home will not only increase working conditions for employees, but also contribute, through reduced commuting emissions, towards mitigating the next great crisis. Only time will tell.

‘Since performance can now exclusively be measured by results, the flexibility for staff to structure their working day in the most productive manner can actually benefit employers, through increased productivity.’