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School closures and working from home – a six-point guide for Channel Islands employers

19/03/2020

Walkers' Channel Islands employment law team has put together this practical six-point guide for employers and employees.

The guide explains issues about working from home in the context of the Islands' employment legislation, and also some steps to take to reduce disruption as far as possible and to help you mitigate the risk of potential disputes.

The six-point guide is as follows

  1. The employment law framework across the Channel Islands is not designed to cover situations such as this.
    • The overarching message is that to avoid future problems, both employers and employees should try to be as flexible and pragmatic as possible to manage the unprecedented disruption caused by coronavirus/Covid-19.
    • In both Islands, ordinarily, employees cannot automatically work from home or work flexibly (unless the right to do is part of their contract of employment) and they are normally expected to work their stipulated hours at their usual place of work, as per their employment contracts. However:
      • Guernsey employees can ask their employer to consider changes in working patterns – under Guernsey law employers are not obliged to agree to the request, but they should give it due consideration as not doing so could undermine the duty of trust and confidence, regarded as fundamental to the employment relationship. Breach of this duty would support a claim for constructive unfair dismissal.
  2. Under Jersey law, workers in Jersey are entitled to ask employers to consider permanent changes in working patterns – employers are not obliged to agree to the request, but they must, by law, give it due consideration.
    • There is a formal process for making such applications, with statutory deadlines, which employers are likely to have difficulty complying with if schools close with little notice.
    • The same duty of trust and confidence exists between Jersey employers and their employees as between Guernsey employers and employees.
  3. Different stress factors may apply to employees, depending on whether they are working from home or coming into the office.
    • Employers should maintain regular communications with those working from home to ensure appropriate levels of supervision and support and to identify, address and monitor any issues created by home working.
    • Employers should also monitor the impact of their colleagues' absence on those remaining in the office and take appropriate steps to reduce stress and workloads where issues are identified.
  4. Even with preparation, training and investment in IT and Information Security, the reality is that simultaneously looking after children and working is not going to be seamless.
    • Flexibility and communication are key - it may be that some tasks can be moved to the early morning or evening to enable the employee to properly perform his or her role.
  5. For some direct client-facing roles, working from home is impossible.
    • Where a business has some form of paid emergency leave, this may in the short term give some comfort to parents who need to try and adapt to their children being at home instead of school. Once this paid leave is exhausted, or where the business does not offer emergency leave, employers will need to discuss with their employees how to manage the situation going forwards.
    • This will depend on whether the employer can accommodate flexible working or not. If not, the employee may have to consider using their annual leave entitlement or taking unpaid leave (as with flexible working, there is no statutory entitlement, but requests should be considered against the background of mutual trust and confidence).
  6. Employers should also be mindful that a policy of blanket refusals of requests for flexible working if most are made by women, could give rise to indirect sex discrimination and lead to claims being brought against them.

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