Carey Olsen Starting Point Guides are intended as a general introduction and guide to different aspects of Jersey employment law.
They are a summary of the most important issues that we come across. They are very much edited highlights of those issues. If you would like legal advice in relation to any specific circumstances, please do give us a call.
This Starting Point Guide addresses the fundamentals of flexible working and family friendly rights under Jersey employment law.
JERSEY - NOT JUST COWS
Jersey is the largest of the Channel Islands and is a British Crown dependency.
It has its own financial, legal and judicial systems. It is not part of the UK or of the European Union (although it has close relationships with both). It also has its own breed of instantly recognisable cows.
The aim of this Starting Point Guide is to introduce the key concepts connected with flexible working and "family friendly" rights introduced by the Employment (Amendment No. 8) (Jersey) Law 2014 ("Amendment No. 8"). Amendment No. 8 amends the Employment (Jersey) Law 2003 (the "Employment Law").
The relevant provisions of Amendment No. 8 will come into force on 1 September 2015 at the same time as the Discrimination (Sex And Related Characteristics) (Jersey) Regulations 2015 add several additional protected characteristics to the scope of the Discrimination (Jersey) Law 2013 including sex and sexual orientation.
Amendment No. 8 will introduce a right for employees to request flexible working. It also introduces a statutory regime for the consideration of such applications by employers. The rights given to employees are in fact very limited in nature. They essentially consist of:
- A right to make a request to work flexibly;
- An obligation on the employer to consider the request properly; and
- A limited number of grounds on which the employer can refuse the request.
Amendment No. 8 does not create a right to work flexibly or part-time. It simply provides a statutory framework through which an appropriate request must be considered.
What exactly is flexible working?
Amendment No.8 will allow a flexible working request to be made – that is a request to change the employee's terms and conditions. There are many different ways of working flexibly, for instance:
- Term-time only working: Employment "pauses" during some or all of school holidays;
- Job sharing: Two people do one job and split the hours;
- Working from home/Remote Working: It might be possible to do some or all of the work from home or anywhere else other than the normal place of work;
- Part time: Working less than full-time hours (usually by working fewer days);
- Compressed hours: Working full-time hours but over fewer days;
- Flexitime: The employee chooses when to start and end work (within agreed limits) but works certain 'core hours', eg 10am to 4pm every day;
- Annualised hours: The employee has to work a certain number of hours over the year but they have some flexibility about when they work. There are sometimes 'core hours' which the employee regularly works each week, and they work the rest of their hours flexibly or when there's extra demand at work;
- Staggered hours: The employee has different start, finish and break times from other workers; and
- Phased retirement: If, as expected, age discrimination comes into force in Jersey in 2016 or 2017, it is likely to mean the end of default retirement ages. Providing a phased retirement "pathway" is likely to pay dividends in terms of managing a greater range of age diversity within a workforce.
Managing Flexible Working - Informal Applications and Eligibility
Experience in the UK (from where Jersey has derived its flexible working legislation) suggests that there are two key practical issues for employers:
- The complexity of the statutory request scheme; and
- Deciding on who should eligible to make a request.
The statutory request mechanism is undeniably both complex and (ironically) inflexible. It is to the advantage of employers and employees to encourage dialogue on an informal basis prior to a statutory request being made. Not only could this resolve the issues without the need for a potentially lengthy discussion and process, it will ensure that employees who make a request which is denied are not then barred from applying for another twelve months.
Another factor for employers seeking to implement the statutory right to request flexible working has been the fact that only limited categories of employees are entitled to make an application.
Excluding requests from those not entitled to apply may create unrest and resentment within a workforce – and prevent employers from deriving the maximum commercial benefits from flexible working.
Enabling everyone to apply for flexible working often delivers benefits in relation to employee relations – in particular motivation and morale. It is also a potentially powerful recruitment and retention tool.
The right approach is a commercial decision for individual employers, but this should be carefully considered – preferably in advance.
Who can make a statutory request?
Employees who have been employed for 15 months or more will be able to request a change to their hours, times or place of work if the reason for the change is to enable them to care for another person.
Employees will only be able to make one application for flexible working per year.
The law (rather unhelpfully) does not specify what is meant by the term "caring for another person".
In relation to children, the phrase would suggest having some responsibility for a child's care in a parental capacity (or an equivalent capacity) – however this is by no means certain.
Previous guidance published by the UK Government Department for Business Innovation & Skills (which has been superseded as a result of new legislation in the UK but remains very useful: http://webarchive.nationalarchives.gov.uk/+/http:/www. berr.gov.uk/whatwedo/employment/employment-legislation/employment-guidance/ page35662.html) provides the following (non exhaustive) suggestions as to what caring for an adult might constitute:
- Help with personal care (e.g. dressing, bathing, toileting);
- Help with mobility (e.g. walking, getting in and out of bed);
- Nursing tasks (e.g. daily blood checking; changing dressings);
- Giving/supervising medicines;
- Escorting to appointments (e.g. General Practitioner (GP), hospital, chiropodist);
- Supervision of the person being looked after;
- Emotional support;
- Keeping the care recipient company;
- Practical household tasks (e.g. preparing meals, doing shopping, domestic labour); or
- Help with financial matters or paperwork.
The position is uncertain – and employers should ensure that they avoid taking too restrictive an approach.
Making a Request
The right to request flexible working legislation requires that employees must make their request in writing, setting out:
- The date of the application, the change to working conditions they are seeking and when they would like the change to come into effect;
- whether the employee will be employed and/or paid to provide care; AND
- The reason for the application.
The Law sets out a statutory framework for consideration of flexible working applications. Generally speaking, the initial process should take no longer than 6 weeks assuming no appeal is necessary. The process is summarised below with a flow chart depicting the process attached at Appendix 1.
Handling a Request
Once an application is received, the Employer must hold a meeting at a time convenient to both parties in order to discuss the application. The meeting must take place within 28 days after the day on which the application is made.
- Provides an opportunity for the employer to explore with the employee exactly what changes they are seeking and how these might be accommodated; and
- Allows the employee to explain the reasons why they are seeking the change.
It is good practice for an employer to allow employees to be accompanied at a discussion by a work colleague if they wish.
The Employer may either:
- Agree the change in terms and conditions applied for; or
- Agree different terms and conditions to those applied for by the employee; or
- Refuse the requested change.
The Employer must give notice of the decision within 6 weeks after the day on which the application is made. Note that there is no requirement to hold a meeting where the employer agrees to the application and gives notice of the decision within 28 days after the day on which the application is made.
Notice of the employer's decision must be given to the employee in writing.
For instance, where the decision is to agree to a change in terms and conditions, the notice must specify the agreed change and state the date on which it will take effect.
Where a decision is to refuse the application, the notice must state the grounds of refusal which are considered to apply and an explanation as to why those grounds apply. The notice must also set out the appeals procedure.
Deciding on a Request
There may be instances where the employer is unsure whether the arrangements requested are sustainable in the business or about the possible impact on other employees' requests for flexible working and wants to agree flexible working arrangements for a temporary or trial period rather than rejecting the request. Again, to avoid misunderstanding, it is good practice to be clear about this in writing to the employee. It is also good practice to set review points when the employer and employee can jointly discuss how the new arrangements are working and make any adjustments necessary.
If the employee is only looking for an informal change for a short period, employers may wish to consider allowing (or requiring) them to revert back to their old conditions after a specified period or after the occurrence of a specific event.
Employees must be aware that if the employer approves their application under the right to request, they do not have a statutory right to request another variation in contractual terms for a period of 12 months although they may still ask without the statutory right.
Refusing an Application
Employers will only be able to deny valid requests for flexible working on the basis of specific grounds set out in the Law, namely:
- Burden of additional costs;
- Detrimental effect of ability to meet customer demand;
- Inability to re-organise work among existing staff or recruit new staff;
- Detrimental effect of quality of business performance;
- Insufficient work during proposed periods of work;
- Planned staffing changes; and/or
- The fact that the employee will be remunerated for care to be provided.
An employer's notice of refusal must:
- State which of the statutory grounds for refusal is being relied upon;
- Contain "sufficient explanation" as to why the chosen ground(s) apply in relation to the application; and
- Set out the appeal procedure.
The decision is a subjective one on the part of the employer. If the employer considers that one of the grounds applies, then the test is satisfied. It would appear that only if the employer's view is based on incorrect facts, could the decision actually be questioned – the tribunal is not permitted to question the employer's commercial judgement.
The requirement to include an explanation as to why the particular ground applies will nevertheless indicate the employer's assessment of the facts upon which the decision has been made – which may be questioned.
The Law also includes a statutory appeals process. The process is summarised below with a flow chart depicting the process attached at Appendix 2.
Appeals can be made on the basis of an employer's decision to refuse an application or the terms on which the employer grants an application. Notice of an appeal must be given to the employer within 14 days after the day on which notice of the decision is given. The grounds of the appeal must be specified.
Once notice of an appeal is received, the employer must hold a meeting with the employee at a time convenient to both parties. The meeting must be held within 14 days after the employee's notice is given. The employee will have a right to be represented at the appeal meeting.
Following the meeting, the employer must notify the employee in writing of the decision on the appeal within 14 days after the day of the meeting.
However, note that there is no requirement to hold a meeting where within 14 days after the day on which the appeal notice is given, the employer upholds the appeal and notifies the employee in writing of the decision. The notice must state the change in the terms and conditions of the employee's employment and the date on which they will take effect.
Amendment No. 8 states that where an individual who would usually consider the application for flexible working is absent from work, the periods set out in the statutory regime will not commence until (i) the day on which the individual returns to work or (ii) 28 days after the day on which the application is made (or, in the case of an appeal, 28 days after the day on which the notice of appeal is given).
The employee and employer may agree in writing to an extension of any of the periods referred to in the statutory process.
Complaints to the Tribunal
Employees will be able to make complaints to the Employment and Discrimination Tribunal (the "Tribunal") where:
- There is a failure to comply with a procedural requirement; or
- A decision to refuse an application is based on incorrect facts.
Broadly speaking, complaints must be made within 8 weeks of the date of the breach of procedure or the date of the final appeal decision. Where a complaint is successful, the Tribunal can award an order for reconsideration of the application and/or compensation not exceeding 4 weeks' pay.
It would appear that a tribunal cannot question the commercial rationale or business reasons behind an employer's decision to refuse a request.
This severely restricts the scrutiny to which an employer's decision may be subjected.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.