Flexible working practices

There is no legislation in Jersey that deals with flexible working practice and it is left, therefore, for the employer and employee to agree what working arrangements should be.

In larger organizations this is often achieved via a collective agreement (with a trade union for example) that covers a group of workers, but in some larger and many smaller companies it may be set out in the individual’s contract of employment.

The Employment and Social Security Committee has set out to develop an overall strategy that supports a flexible workforce. The Committee is keen to promote employee-friendly practices that also increase the competitiveness of companies. Much of the information below is drawn from the Committee’s discussion document "Fair Play in the Workplace".

Research has consistently shown that if employees feel secure and are protected against abuse, they will be more confident about co-operating with their employer. It is important, therefore, to ensure that good employment practice prevails and that flexible working practices are to the benefit of both parties.

At one time, flexible working was taken to mean a contractual obligation to work overtime on reasonable notice. More recently, different ways of working have evolved which are essentially outside the traditional ’9 to 5’ arrangements of past years. Modern flexibility is not generally defined in terms of longer working hours.

The advantages for employers are clear. Many businesses have seasonal peaks and troughs and such flexibility avoids unproductive time in some periods and increased costs in terms of overtime and agency labour in others. Similarly, there can be considerable advantages to employees where different forms of working may suit the individual or family circumstances. There is no doubt that these arrangements have helped more women to reconcile family and working lives.

The most common forms of flexible working practices and related contractual issues are described below:

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Homeworking and Teleworking

Homeworking and teleworking share a common foundation in that the employee is taken away from the office base. This has been called ’location independence’. However, the terms have a subtle difference in practice.

Homeworking was traditionally seen as people working at home on a piecemeal basis but has now broadened out to include all those workers who are based or work at home for one or more employer. Teleworking usually means a situation in which a worker systematically works at a distance from the employer, whether from home or at a ’telecentre’ established for the purpose. Teleworkers communicate by e-mail, fax, telephone, mobile phone, etc. in order to carry out their duties.

The nature of home/teleworking means that specific considerations need to be taken into account within the employment contract and certain standard terms will be inappropriate. One specific problem is whether such workers are independent contractors (such as freelancers) or actual employees. Certain factors become important to establish - such as the apportionment of costs and benefits between employer and employee in relation to the equipment required for the home/teleworking arrangements to succeed. Related issues are that of insurance of such equipment and the reimbursement of expenses such as telephone and electricity bills.

Job sharing

Job sharing occurs when two part-time workers agree to do the job of one full-time worker. It is useful to those who want to work on a part-time basis in a job that normally requires full-time employment. This arrangement has proved especially attractive to professional women who wish to return to work after the birth of a child but who do not want full-time employment. The points covered below, which relate to the situation in the UK, should be considered, in the interests of good practice.

It is also worth noting that the States of Jersey is also anxious for all businesses to make full use of the locally qualified workforce. As such, if an employer wishes to convert a full time vacancy into two or more part-time positions (the total hours worked by the part-timers may well be more than a full-time equivalent) to be filled by locally qualified people (i.e. with a minimum of 5 consecutive years residency immediately preceding their employment), then the employer does not have to apply for a licence or any other permission despite the overall number of jobs increasing as a direct consequence. An appropriate note should be made on the next Manpower Survey Form.

Any employee in Jersey working 8 hours a week or more has exactly the same protection and rights as a full time employee, including the right to receive written terms, annual holidays, the minimum wage, pay statements and protection against unfair dismissal.

The first important inclusion in the job share contract is the division of work. In the UK, this must be clearly set out so that each employee is aware of the hours he or she must work. The contract must also deal with how pay and benefits will be divided. The question of additional hours worked by one or both of the job sharers also needs to be covered, as must holiday entitlement.

The above points can be dealt with relatively easily through consultation with the job share employees. However, the question of termination is more difficult. To a large extent, the job sharers’ work is interdependent and so, if one leaves, the work of the other may suffer. There are various ways of coping with this - from including a contractual condition that the remaining job sharer must be offered the full time job to a condition that the remaining job sharer’s contract will be terminated also. However, this latter course of action should be a last resort. In the UK and in Jersey this could result in a claim for breach of contract or unfair dismissal.

Term-time Working

Working only during term-time is particularly popular with women in Jersey who have family responsibilities. There are, however, clear problems for the employer in covering the school holidays. There has been talk about changing the number of terms during the school year and this could help employers and employees if the holidays were spread more evenly throughout the year.

Term-timers’ contracts are basically the same as those for full-timers. The Law gives them full statutory rights. Time off for school holidays does not affect continuity of service. Particular issues that should be covered in the contract of employment include:

• the dates of the term-time start and finish;
• the status of school holiday leave - i.e. whether it is all to be unpaid or a mixture of unpaid and annual leave.

Fixed-term Contracts

Fixed-term contracts are common in Jersey. This is an arrangement where an employee is employed for a fixed period of time, after which the contract will expire automatically. (Note that the termination of employment  statutory notice provisions do not apply to fixed term contracts). If it is intended that the contract may terminate before the expiry date by notice, this should be included as an express provision (i.e. a break clause). JACS has produced a guide to fixed term contracts.

The key point is that if the employer fails to renew the contract on expiry of the term, there will be a dismissal and therefore possible exposure to an unfair dismissal claim. Fixed term contract employees on contracts of 26 weeks or less have special protection against unfair dismissal.

Non-permanent Workers

This is a generic term covering a number of categories of atypical workers. Workers on fixed-term contracts are non-permanent, as are temps, seasonal and casual workers. Care should be taken in regard to the need to give adequate notice if the contracts are not truly fixed-term, as explained below.

Temporary workers are those whose contracts are for a limited and, possibly, an uncertain period of time. They are often drafted in to cover for permanent staff who are on holiday, sick, on maternity leave etc. They could simply be employed because of a peak of workload, particularly in tourism-related businesses (see "seasonal workers" below). Temporary contracts sometimes specify that they will come to an end on the occurrence of a particular event - e.g. when the person for whom cover is being provided returns to work. On frequent occasions, the temporary work is "open-ended" and continues until the peak workload has passed. In either event, if the contract is not truly a "fixed term contract", in that there is no defined end date, the provisions of the termination of employment law should be applied. Dismissals may still be regarded as unfair unless the contract is ended for a fair reason and by a fair process.

Seasonal workers are typically employed in industries that need staff for certain parts of the year, such as the tourism and agriculture industries in Jersey. If the seasonal contract is in the form of fixed term contract that expires when the purpose of the contract is fulfilled and this is specifically stated and has an end date, (i.e. a fixed-term contract), then the contract expires automatically on completion of the task. If, however, the end date is "open-ended" and the contract is not a "fixed term contract", then again the termination of employment notice period  provisions should be applied.

(In Jersey the statutory minimum notice does not apply in the case of a contract made for the performance of a specific task which is not expected to last more than 13 weeks unless, due to circumstances, the employment extends to three months or more. However, where seasonal workers are regularly employed on a casual basis year after year during the period when the employer wanted them, and the gap between successive contracts is less than 26 weeks, the employee’s service will be calculated by combining the time served under each contract and the employee will acquire rights that would allow unfair dismissal claims).

Casual workers tend to be employed for one-off short tasks (e.g. stock-taking). There is no obligation on the part of the employer to offer work and no obligation on the worker to accept. Casual work can also be useful to individuals who do not want to commit themselves to one employer or work the full year. The question arises as to whether an employer/employee relationship is created but it is probable that a relationship does exist where a mutuality of obligation exists.

Non-permanent Workers

Annualised hours contracts refer to the total working hours for the full year, taking account of paid holiday entitlement. Where business demands can be predicted with some certainty, there is room for working schedules to be allocated for some time ahead to reflect seasonal or other fluctuations. Otherwise, the usual starting point is to agree a basic shift pattern for the employee and to expressly provide that the employee may be required to work more or fewer hours or shifts in any one week, depending on business requirements. The employee is then notified during the current roster period (usually a period of a month or four weeks) of the hours they will be required to work in the next period. There is usually a right for the employer to alter the hours at shorter notice in certain circumstances.

Various practical considerations need to be dealt with in introducing annualised hours, including -

• rights and obligations of employees (and to employees) who leave during the year;
• calculation of pay.

There is a variation to annualised hours called ’banked hours’. The concept is that employees receive a flat rate of pay based on the notional average of, say, four shifts regardless of the actual hours worked. A running debit/credit system is operated. If an employee works fewer than the notional average of four shifts in the week, a shift debit will be recorded. An additional shift in another week will score a shift credit. These are set off against each other as the year progresses. At specified points during the year, outstanding shift credits can then be paid at the appropriate rate.

Part-time Work

There is a European Council Directive (97/81/EC) that sets out to ensure that workers engaged in various forms of flexible working receive comparable treatment to full-time staff on open-ended contracts. Its purpose is to eliminate discrimination against part-time workers and to improve the quality of part-time work. It also aims to facilitate the development of part-time work on a voluntary basis and to contribute to the flexible organisation of working time in a manner that takes into account the needs of employers and employees. This directive has no legal standing in Jersey, but the Employment Law 2003 provides part time employees working 8 hours a week or more with the same rights and protection as full time employees. In any event, adoption of similar principles will serve to promote and encourage part-time work, to the benefit of employers and employees.

What issues should be considered in providing equality of treatment for part-time workers?

Equality of treatment would be achieved if part time workers were not treated less favourably than their comparable full-time counterparts in relation to:

• reorganising hours
• promotion
• rates of pay (including overtime)
• profit sharing, share option schemes
• contractual sick and maternity pay
• access to occupational pensions
• access to training
• redundancy
• other benefits such as health insurance, subsidised mortgages, staff discounts...
• leave/holidays/breaks - annual leave, maternity, career breaks etc
• public holidays, bank holidays.

What can part time workers do if they feel they have been treated less favourably than their full time colleagues?

Employees should raise issues directly with their employers, if necessary through their grievance procedure, or can seek JACS’ advice.

Where can you get more information?

JACS can provide further advice

From the Department of Trade and Industry website www.dti.gov.uk