Information and Communication Technologies and its impact on the Generation Gap

Enrique M Stile
Marvel O’Farrell Mairal, Buenos Aires
EMS@marval.com

Paola Forchiassin
Marvel O’Farrell Mairal, Buenos Aires
mpf@marval.com

In the era of Information and Communication Technologies (ICT) and the immediacy of communications, customers increasingly expect concise, fast and precise responses. Promptly answering to the business requirements is pivotal. Like industrial organisations, those that offer services also need to adapt their processes and resources to meet this demand for agility and efficiency. Digitalisation has become a vital tool to satisfy these needs. It optimises, simplifies and facilitates tasks, increases productivity and improves results. But, for whom?

Digital generation gap

While digital natives are familiar with technologies and manage to quickly adapt to their changes, elderly people may see digitalisation as a threat to their job, career and reputation. When it comes to ICT, long-lived people face different barriers: in accessing these technologies, in using them and barriers attributable to the environment in which they operate.^[1] In the case of elderly people who remain active in their jobs, it is often more difficult for them to become familiar with digitalisation in a context of constant innovation. Designing complex and unintuitive interfaces strengthens elderly people’s challenges when interacting with technology.

In spite of its advantages and benefits, if not properly implemented, digitalisation may end up excluding those employees from their jobs who lack the means or skills to incorporate these technologies into their work routine. Long-lived people, in particular, who – overcoming biases – need to remain in their jobs longer because of the increasing life expectancy, the low birth rate and the impoverished retirement systems.

Legal protection

In 2017, Argentina ratified the Inter-American Convention on the Protection of the Human Rights of Older Persons (‘the Convention’),^[2] which defines an ‘elderly person’ as someone who is 60 years of age or older, unless domestic law determines a lower or higher base age, provided that this is not older than 65 years. Under Article 18, the Convention specifically regulates the right to work of elderly persons, who have the right to dignified and decent work and to equal opportunities and treatment with respect to other workers, regardless of their age.

The Convention prohibits any distinction that is not based on the demands of the nature of the position and requires that elderly persons be assured the same guarantees in employment, benefits, labour and union rights and be remunerated by the same salary applicable to all employees facing equal tasks and responsibilities.

Under this Convention, the States Parties are obliged to adopt measures to prevent employment discrimination against elderly persons and to promote labour policies aimed at ensuring that the conditions, work environment, schedules and organisation of tasks are appropriate to the needs and characteristics of the elderly person.

Despite the constitutional hierarchy that was given to the Convention, and even though the Argentine National Constitution^[3] itself establishes the obligation of the National Congress to legislate and promote positive actions to guarantee real equality of opportunities and treatment of the elderly, no domestic regulations have been issued that specifically aim to protect the elderly in their jobs. Therefore, the general rules that protect any person who works apply to them.

Among these rules intended to protect employees, Article 66 of the Labour Contract Law No 20744^[4] regulates the right of employers to introduce all changes related to the form and modalities of the work (ius variandi). This is a broad right that employers have, which is combined with the power to organise and direct the organisation. While the power to direct the organisation needs to be functional and meet the purposes of the company, the ius variandi must be reasonable, must not affect essential conditions of the employment contract and cannot cause economic or moral harm to the employee.

Argentine labour judges have understood that reasonableness in the exercise of ius variandi implies a functional use in response to the true technical, administrative or economic needs of the company, excluding any abusive, arbitrary or contrary to good faith conduct.^[5] They have understood that remuneration, the distance to the workplace, the work schedule and the job category are essential conditions of employment which cannot be unilaterally modified by the employer.

It seems, then, that changes resulting out from digitalisation would be reasonable. To the extent that they do not affect the essential conditions listed above, those changes would not constitute an abusive exercise of ius variandi and, therefore, workers should adapt to it. Now, is it reasonable to assume that employees must adapt to new technologies and incessant changes by their own means and at their own expense? Can the employer terminate employees because they face difficulties in adapting to new technologies?

Since the amendments introduced in 1995 by Law 24,576,^[6] Chapter VIII of the Labour Contract Law No 20744 refers to professional trainings. These amendments were proposed in a context in which the National Congress understood it was imperative to promote employee training so that companies could incorporate technological innovations and adapt to new forms of organisation. In this chapter, the law recognises that professional training under equal conditions of access and treatment is a fundamental right for all workers. It also places on the employer the duty to implement training actions with the participation of workers and with the assistance of the competent state agencies. Training should be in accordance with the employer’s requirements, the characteristics of the tasks and the demands of the organisation of work. Although unions are entitled to request that employers implement professional training for the better adaptation of the employees upon technological and organisational-based innovations, there are no specific obligations or sanctions in cases of non-compliance.

The recent Teleworking Law 27555^[7] obliges employers to give the correct training to its employees in new technologies, providing courses and support tools without increasing their workload, to facilitate their adaptation to the teleworking modality. However, the scope of this rule is limited to teleworking contracts and to the tools and technologies linked to this type of work.

Under the Argentine legal regime, employers are not allowed to dismiss employees invoking technological reasons, but they may dismiss without cause employees who face (or who could face) difficulties in adapting to new technologies, by paying them the corresponding statutory severance. In some cases, when terminations happen on good terms, it is common to offer outplacement services seeking to provide employees with tools to find a new job. It is not usual, however, to incorporate upskilling or reskilling programs that aim to keep them in the organisation. Employees, individually, lack elements to avoid being dismissed because of the employer’s failure to give the necessary training.

Conclusion

Rethinking organisations from a diversity perspective entails taking measures that often exceed mere legal obligations and requires actions that aim to redesign processes with the purpose of contributing to a more diverse culture in which all employees can add value. Long-lived people’s commitment, availability and invaluable experience demand that organisations review their practices and policies to implement the necessary upskilling or reskilling actions so that they can remain employed. Not only must the production processes take into account the particular needs of elderly persons and their difficulties in the era of digitalisation, but performance evaluation, hiring mechanisms and promotion processes also need to free themselves from their biases, understand what the challenges are for this group, learn to face them and make the corresponding adjustments to guarantee real equality of opportunities at work for all people who are part of the organisation, regardless of their generation.