Sarah Ash , Victoria Pratt and Daniel Read
The last 18 months have been a challenging time for businesses across all sectors in the Channel Islands, which have been tested in a variety of ways, by government-enforced closures, supply-chain disruption, and market turmoil. Over the same period, employees have been challenged to adapt to remote working, changes to working patterns, and the demands of working from home whilst juggling personal lives.
Much of the focus as we start to glimpse the post-pandemic future has rightly been workplace culture, flexible working, and the acceleration of digital change. However it is also worth focusing on the last 18 months as a crisis management case study for HR teams.
No matter how well your businesses responded to the challenges of Covid-19, it is likely that there are lessons to be learned for the next crisis that comes along, whether it is another global pandemic, a natural disaster, or other event. All of these crises come with their own unique challenges, but from an employment law perspective, there are common issues that will have to be considered. HR leaders now have an opportunity to assess their response to Covid-19 and look honestly at where they succeeded and failed, with a view to building more robust processes and procedures for next time.
The key points for HR leaders to consider include:
Human Risk and the Role of HR leaders
There is a well-known Richard Branson quote along the lines of “Take care of your employees they’ll take care of your business.” One of the impacts of the pandemic was to place this principle at the forefront of every businesses agenda.
The importance of a well-defined HR strategy and the role of HR leaders in managing employee risks and wellbeing was immediately thrust front and centre as businesses had to put in place strategies to support and look after their staff, as well as to help to control the legal and regulatory risks where staff were all working from home. This required HR leaders to work collaboratively with the other stakeholders, like IT, compliance, and the business leaders to put in place a crisis management plan.
Businesses should make sure that those structures and techniques are recorded and documented in case they are required again. Where appropriate, it is likely that this includes ensuring HR is involved in planning and implementing contingency plans.
Flexible working & WFH policies
Employers of all kinds have had to adapt to WFH requirements, and flexibility about who does what from where is likely to be one of the long-lasting impacts of Covid-19.
Employers should be revising their WFH policies (particularly where they have made allowances on a temporary basis, without amendments to contracts of staff handbooks) to reflect any permanent changes to WFH arrangements that they are now proposing to put in place. These policies will need to ensure that they comply with any minimum legal requirements. In Jersey, that means being aware of the statutory right of employees to request a permanent change to their terms and conditions (flexible working).
This differs from a WFH policy, which is much more flexible. If a statutory request is made, employers have to follow a formal process and will need to ensure employees are dealt with in a fair and consistent manner. So careful consideration should be given as to what you want to achieve with a WFH policy, and how you want to manage the possibility of a statutory request for flexible working.
In Guernsey there is no statutory right to request flexible working, but employers would be well-advised to consider putting a proper written policy in place. Although not strictly a legal question, these policies should also be considered from the perspective of employer brand and recruitment – it is likely that flexible working will be an attractive point for future recruitment. From a crisis management perspective, those business that do not continue to offer WFH should make sure that they retain records of the policies and practices they have utilised over the last 18 months, so that they can implement them again should the need arise.
Staff Working from another Jurisdiction
Surveys that we undertook during our virtual employment conference in February 2021 showed that issues, policies and requests regarding staff working from another jurisdiction were being considered by many employers – 51% of survey respondents would have considered employing someone working remotely in a foreign jurisdiction, provided it was a suitable person in a suitable role.
Employers should think about this issue separately to general flexible working and WFH policies, because it throws up some different legal challenges (for more on which, you can read our note here), including: financial services and business regulatory obligations in the business’ and employee’s jurisdictions; tax and financial substance implications, employment rights in both countries; immigration and housing issues; and data protection rules.
Whilst the exceptional nature of Covid-19 meant that most jurisdictions put in place temporary exemptions to cover most of these legal risks, going forwards that will not necessarily be the case. Businesses should carefully consider where their staff are based in the future, and how to manage any potential risks. Businesses should also retain the right to recall employees to their home jurisdiction, or to terminate the employment if an employee refuses.
Managing Staff Issues
A key question that we were asked early on during the first lockdown was about disciplinary, grievance and performance issues with staff – HR leaders and managers were tackling the question: should we continue these things as usual, or should they effectively go on hold during the disruption? And how much allowance should we make for issues due to the disruption of the pandemic?
This is a complicated area – employers have a legal obligation to take reasonable care of employees’ mental and physical health, and to not damage the trust and confidence between themselves and employees. There are also statutory rights to consider, including the right for employees to be accompanied at disciplinary hearings, as well as, potentially, contractual commitments in respect of resolution of disputes, and discrimination issues to be aware of.
Businesses should ensure they have a clear idea of how they will manage these processes in the future should they be forced to work remotely over another long period, and what approach they will take during any initial period and beyond.
Contracts of Employment
18 months ago most people had never heard of the term “furlough.” In our experience, it was also relatively rare in the Channel Islands for employment contracts to include express terms allowing employers to put in place temporary measures if faced with a situation like this. Increasingly we are now drafting contracts with temporary measures clauses to include temporary cessation of work or salary, or to offset salary by way of furlough payments. Businesses should consider whether their contracts of employment need to be revised to legally allow them to manage these issues in the future.
The process of assessing an organisation’s response to Covid-19 will encompass every aspect of its operations, but HR leaders should not shy away from undergoing the same process as those in IT, Marketing or operations. Properly reviewing these points and amending and updating policies, contracts and handbooks as a result, and including HR in contingency and crisis management plans will leave employers far better placed for responding to the next crisis, whatever shape it takes. Our team of specialist employment lawyers in Jersey and Guernsey is well-placed to assist firms with this process, and to advise on the relevant legislation in Jersey and Guernsey.
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.