Knowledge

The Employment (Jersey) Law 2003 (the "Law") came into force on 1 July 2005. Since this date there have been a number of amendments to the Law. Laws in connection with discrimination and "family friendly" rights (including maternity, paternity and adoption) came into force in 2014 and 2015 respectively.  Subordinate and related legislation now in force includes the Employment Relations (Jersey) Law 2007, which deals with issues such as trade union recognition, and the Employment (Awards) (Jersey) Order 2009, as amended, which deals with compensatory awards in the Jersey Employment Tribunal (the "Tribunal").

Summary of the Law's key provisions
Jersey Employment Tribunal
The Law provides for the establishment of the Tribunal as an independent and impartial body, vested with powers to determine employment law related issues. The Tribunal consists of:

• a chairman and a deputy chairman, who are both legally qualified; and
• lay members with experience of employment matters, some from the "employer side" (for example, managers or human resources advisers) and some from the "employee side" (for example, trade union representatives).

A full Tribunal panel consists of one adjudicator (the chairman or deputy chairman) and two lay members, one from the "employer side" and one from the "employee side". Complex matters and substantive hearings, such as contested unfair dismissal claims, will normally be heard by a full panel. An uncontested claim or an interlocutory hearing (dealing with purely procedural matters) may be heard by the chairman or deputy chairman sitting alone. 

Statement of employment terms
The Law requires an employer to provide employees with a written statement of employment terms (the "Statement") within four weeks of the commencement of employment. The Law also makes provision for dealing with changes to the Statement. 

Failure to provide an employee with a Statement complying with the requirements of the Law (as set out in Article 3) is an offence.  An employer guilty of such an offence may be liable to a fine. 

A Statement is likely to be contractually binding, at least in part, but will not necessarily constitute the entire employment contract. Contractual provisions may also be set out in other documentation and a contract of employment may be written or oral, express or implied. A failure to comply with the requirements of the Law, by failing to provide a legally compliant statement, does not negate the existence of a contract. Further, an agreement by the parties that a specific relationship is not an employment contract will not, of itself, determine whether or not an employment contract has in fact been created.

Minimum rest periods
The Law provides that an employee is entitled to a minimum uninterrupted rest period (or periods) of not less than:

• 24 consecutive hours in each seven day period; 
• two periods of 24 hours in each 14 day period; or
• one period of not less than 48 hours in each such 14 day period. 

Annual leave and bank and public holidays
Employees are entitled to a statutory minimum of two weeks' paid annual leave each year. In addition, they are entitled to paid time off on bank and public holidays or paid time off in lieu of the same, if required to work on a bank or public holiday.

Minimum wage and payment of wages
Employees are to be paid at an hourly rate which is equal to or greater than the minimum wage. Details of the requirements and the standard minimum wage, the trainee rate and the ability to offset costs for the provision of food and accommodation are dealt with in the Law and associated legislation. Information about current rates can be found on the States of Jersey website - click here to find out more. 

All employees must receive an itemised pay statement. Unless a specific exception applies, wages are to be paid at regular intervals of no more than one month. Wages must be paid direct to an employee or into his or her bank account unless an employee gives express permission for payment to be made to a third party. 

The Law also contains provisions regarding lawful deductions from and distraint on wages.

Right to be represented
Employees have the right to be represented at a disciplinary or grievance hearing by a trade union representative or another employee of the employer, as long as the location of the representative at the time of the request does not make the request unreasonable. 

Termination of employment
The Law sets out minimum periods of notice to be given by an employer to an employee and by an employee to an employer on termination of employment. It also provides for the calculation of wages in respect of such periods of notice and waiver of notice. 

Rights on Redundancy
An employee has a right to a redundancy payment if he or she has been continuously employed for a period of two years or more. The amount of the redundancy payment will depend on the period of continuous employment. A claim in respect of a failure to pay a redundancy payment must be brought within 6 months from the effective date of termination.

An employee who is given notice of dismissal by reason of redundancy is also entitled to be permitted to take time off during working hours, before the end of the notice period, to look for new employment or make arrangements for training for future employment.

A fair redundancy procedure must be followed, failing which the employee may have a claim for unfair dismissal.

Employers have additional obligations in respect of collective consultation when more than 12 employees are likely to be made redundant at one establishment within a period of 30 days or less.

Unfair dismissal

• In broad terms, a fair dismissal requires (i) a legally valid reason for dismissing the employee, and (ii) reasonable conduct by the employer in treating that reason as a sufficient reason for dismissal. This second element is dealt with more fully under the heading "reasonable dismissal procedure" below.  The burden of proof is on the employer to show that it has complied with this two-stage test.
  Dismissal of an employee is automatically unfair if it is for one of the following reasons:
  
  • the employee having sought to assert a statutory right, for example, the right to a safe system of work;
  • the employee having sought to enforce the right to be paid the minimum wage;
  • it relates to (inter alia): an employee's pregnancy or adoption of a child, requesting flexible working, or the taking of a period of statutory maternity, paternity or adoption leave; or
  • if an employee is dismissed for being (or failing to be) a member of a trade union.
• Valid reasons for dismissal (stage one of the two-stage test):
  • conduct;
  • capability and qualifications;
  • redundancy;
  • statutory requirement (where allowing employment to continue would contravene a law); or
  • some other substantial reason (i.e. a "sound, good business reason" not falling within one of the other four categories).
• Reasonable dismissal procedure (stage two of the two-stage test):
  • Not only must the employer have a valid reason for the dismissal, but the employer must also have acted reasonably in relation to the dismissal process. A fair procedure must always be followed, regardless of the reason for the dismissal.
  • In assessing the reasonableness of the dismissal, the Tribunal will take into account the conduct of the parties, the size and administrative resources of the employer, and whether or not the employer acted in accordance with best practice and followed its own procedures. If an employer can illustrate that it acted reasonably at all times and in accordance with procedures set out in the employment contract and/or staff handbook, this will reduce the risk of a successful claim. It is vital that relevant rules and procedures are provided to employees and are adhered to.
  • This second stage does not apply to automatically unfair dismissals. Where it is proven that a dismissal was for an automatically unfair reason, the Tribunal will not have to embark upon the second stage in order to decide whether the employer acted reasonably in the circumstances.
• When may an unfair dismissal claim be brought?
  There are certain criteria which apply in order for an employee to be eligible to make a claim for unfair dismissal, including basic contractual hours of eight hours or more per week, being over compulsory school age and below retirement age.
  Employees can bring a claim of automatically unfair dismissal from day one of employment: in such cases there is no applicable minimum period of continuous employment. 

Generally, however, employees must have completed a minimum period of continuous employment in order to bring a claim:

• fixed-term contract employees must have been continuously employed for at least 13 weeks or served two-thirds of the contract term, whichever is the longer; and
• other employees must have been continuously employed for a period of not less than 52 weeks in order to be eligible to bring a claim.

Powers of the Tribunal
The compensatory awards which may be made by the Tribunal are set out in the schedule to the Employment (Awards) (Jersey) Order 2009, as amended. Unfair dismissal compensation awards may be reduced by the Tribunal at its discretion, on the basis of factors including the conduct of the employee or because it would otherwise be just and equitable to do so, under Article 77F of the Law. The Tribunal also has the power to order that an employer reinstate a dismissed employee in the same job or re-engage a dismissed employee in a different job.

Conciliation
The Jersey Advisory and Conciliation Service ("JACS") provides advice, education and conciliation services to employers, employees and trade unions.

Overview
Employment law in Jersey continues to develop apace. Employers must bear in mind the need for fairness and transparency in the workplace, including when managing disciplinary or performance issues and when addressing the need to avoid discriminatory practices. Employment documentation, including the contract of employment and any staff handbook, remains the starting point in any dispute. Employers would be well advised to ensure that their current employment documentation and recruitment procedures comply with statutory requirements and best practice. Given ongoing changes to Jersey employment law and the forthcoming introduction of non-discrimination legislation, these should be kept under regular review.

Advice and guidance
Bedell Cristin provides advice and guidance on employment law and related matters to a wide range of businesses based in Jersey and those which are considering setting up here. Areas we can assist with are as follows:

• drafting or review of employment contracts and policies
• advice on recruitment and discrimination
• management of disciplinary, performance and sickness absence issues
• restrictive covenants
• redundancies and other dismissals
• fraud investigations
• applications for Regulation of Undertakings and Development licences
• data protection
• health and safety

We can also provide tailored training for your business, for example, on recruitment and managing discipline and performance.