With Guernsey moving towards Phase 5 of its exit strategy ("the Bailiwick Bubble") and Jersey moving into Level 2, ("Safely moving towards the 'New Normal'"), Walkers Guernsey Managing Partner and Head of the CI Employment Team, Louise Hall, and Daniel Read, Senior Counsel in Walkers Jersey office, discuss some of the main considerations for businesses in planning for a safe return.
1. Employers are familiar with carrying out risk assessments as part of their general health and safety obligations across both Islands. Has the nature of these assessments changed as a result of COVID-19 and planning for a safe return to work? If so, what are the key points for businesses to consider?
Louise: As the question indicates, most businesses should be familiar with risk assessments as part of their health and safety obligations. Just to recap, this requires the business to identify the hazards at work, decide who might be harmed by those hazards and how, evaluate the risks, decide on what measures can be implemented to minimise them and then to actually implement them. For Covid-19, the 'hazard' is the virus which can affect anyone in the workplace and the risks are aspects of the working environment and work practices which could encourage transmission, such as moving around the office, use of workstations and dealing with deliveries. A Covid-19 risk assessment needs to decide what measures can be implemented to minimise risks associated with the work environment and working practices, and then actually implement them.
Dan: That last point is key. As a general principle, when managing employee health and safety it is not enough to simply carry out a risk assessment. Employers need to take the next step and implement the findings and control measures. This will involve training employees in both the risks and the controls.
Louise: In Guernsey, and I believe the position is the same in Jersey, the risk assessment can be requested by the health and safety inspectorate. They will look at the risk assessment and, as Dan says, they will want to see that it has been put in practice so employers should consider maintaining training records.
Dan: The other practical matter to note in Jersey is in relation to communal areas in a shared building. If businesses share communal areas, such as entrance lobbies, elevators and stairwells, then they will need to carry out a separate risk assessment for those communal areas. This separate risk assessment must be carried out in conjunction with the other occupants of the building and the landlord or managing agent.
2. Contact tracing remains a key part of the strategy on both Islands. How was this managed in Guernsey and are there any lessons for Jersey? How about now restrictions are going to be lifted – will attendance records still be maintained?
Dan: This is one area that has been generating some publicity in Jersey. We are still waiting for detailed guidance on how this is meant to work in practice in Jersey, and in particular from the Jersey Office of the Information Commissioner. I think the key point is for businesses to consider the lawful basis for any processing, by reference to the data protection laws in either Island.
Louise: Absolutely. Whilst we were at Phase 4 in Guernsey, it was a mandatory requirement for all businesses to maintain records of all staff present in the workplace and any visitors. That daily record had to be kept for 14 days after which it had to be destroyed. If there had been a confirmed case, these records would have been passed to the contact tracers. So employers were able to record this personal data as it was a legal obligation. I should add, though, that employers must still give staff and visitors information and details about how their data is being processed, including what personal data is being collected, how it will be used, and who else will have access to it to ensure they comply with the data processing principles.
Dan: The same obligations apply in Jersey in relation to the information that needs to be provided to employees and visitors. Businesses will need to consider updating their privacy notices, or having a specific Covid-19 privacy notice to cover the retention of this data for contract tracing.
However, the right to record and retain all employee and visitor data is a bit more complicated in Jersey as there is no obligation to maintain records of the staff that attend the workplace. There is an obligation to maintain records of visitors, but only where those visitors are likely to be in close proximity of less than 2 metres for more than 15 minutes. Those records should be kept for 21 days from the date of contact, after which they must be destroyed.
So businesses looking to maintain staff records, and general visitor records, will need to establish a different lawful basis under the data protection law in order to process this information and they should still adhere to the strict 21 day retention period. In relation to employees, it is likely that this will be lawful as employers are obliged to manage employee health and safety and so can rely on processing for the purposes of a lawful requirement that arises in relation to employment. So whilst Jersey is at level 2 and the need to operate physical distancing remains in place, employers should be able to maintain employee attendance records to ensure physical distancing can be maintained in the office as well as to know who to inform if there has been contact with someone infected with Covid-19.
For visitors, businesses are under a lawful obligation to protect visitors from risks to their health and safety and this is likely to provide a lawful basis to collect visitor information given there are still cases in the community.
Louise: Given that the purpose of the records is for contact tracing and we know that there are no known active cases in Guernsey, I would expect the requirement to maintain these records to fall away. Unless there is a second wave, it is likely to be unnecessary to continue to record this data.
3. With Guernsey and Jersey moving out of lockdown at different times, are we at risk of a discrimination claim if we treat our two Channel Islands offices differently in how and when we reopen them?
Dan: It is difficult to see the basis for a successful discrimination claim in these circumstances. Any employment related discrimination claim must be based on a protected characteristic. In Jersey, these are disability, race (including nationality and ethnic origin), age, sex, sexual orientation, gender reassignment pregnancy and maternity.
Louise: That's a rather more extensive list than Guernsey, where protection (for the time being at least) if available only on the grounds of sex, marital status and gender reassignment. Even so, provided a decision to reopen an office is based on physical location and fewer operating restrictions and not (for example) on being of Jersey or Guernsey origin, I can't see that there would be any grounds to raise a discrimination claim
Dan: I completely agree, Louise. I would have thought that the bigger risk for businesses is if they discriminate between individual employees rather than between offices on the basis of a protected characteristic, for example in Jersey by inviting back only those under 50 or by requiring those classified as medium risk on health grounds to remain at home without considering any reasonable adjustments.
4. Work from home is still the default in Jersey. In Guernsey, this is about to change as lockdown is lifted. Do you see a shift in the future to greater flexible working?
Louise: We have seen an incredible shift in perspectives over the course of the last three months which may actually mean that the law takes time to catch up with employment practices in Guernsey, rather than the other way round. In early 2018, the States gave the green light for an action plan to develop detailed proposals to introduce the right to request flexible working in Guernsey, similar to yours in Jersey. It seems to me that a lot of Guernsey employers are completely rethinking their working arrangements following the success of home working during lockdown which is likely to see flexible working become far more commonplace in future arguably without the need for legislation.
Dan: As you say, in Jersey there is a right to request flexible working. Any employee can make a request for a variation to their employment terms, to include the place where they work, and employers must consider these requests. There are specific grounds for rejecting a request, including the burden this would place on the business's resources and other staff, and the quality and performance of any work. This last point is probably where we will see a greater change in Jersey, as businesses will now have hard data to be able to show whether this is the case or not. If not, it may be difficult to reject a request for flexible working on this ground.
For me, the question about the future is less about a formal variation to a contract to reflect a structured working pattern, but whether businesses will operate more fluid policies in relation to this that don't require a change to the contract. I can see this being a differentiator for businesses going forwards.
Louise: It is interesting to see that in England they are considering giving all employees a right to request the ability to work from home. It is not clear yet whether that is a temporary right, in the face of responding to Covid-19, or whether it is intended to be a permanent right. There is no suggestion yet that this is being considered in the Channel Islands, but maybe one to watch out for in future?
Originally published 22 June, 2020
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.