Jersey employment update - zero hours contract consultation and Employment and Discrimination Tribunal annual report synopsis

Zero hours contract consultation

On 4 July 2022, the Jersey Employment Forum (the "Forum") released a Consultation Survey on the 'Operation of Zero Hour Contracts in Jersey'.  The purpose of the consultation is to enable the Forum to make recommendations to the Social Security Minister on any changes to the Employment (Jersey) Law, 2003 (the "Law") together with any other measures that may be necessary to enhance the protections available to employees, and to clarify the rights and responsibilities of employees and employers under the Law. 

Currently, it is believed that about 10% of jobs in Jersey are filled by employees on zero hour contracts. Whilst 85% of those individuals express high levels of satisfaction with their arrangements and in particular the flexibility advantage of such working arrangements, it has been identified that there are disadvantages of zero hour working arrangements, and this consultation is aimed at both identifying those disadvantages and proposing solutions to mitigate them.

The Forum have produced a background paper that provides a useful synopsis not only of the issues surrounding zero hour contracts but also the proposals under consideration.

The consultation is open until 31 August 2022 and we would encourage all employers who use zero or variable hour contracts to complete the survey.  Responses can be submitted online or by completing this form and sending it by email or post the Forum.

From our perspective as employment lawyers, we consider the key will be in the definitions adopted (or not) about what constitutes a "zero hour contract" and whether a distinction should be made between "workers" and "employees" in the Law, similar to the UK and other jurisdictions. This will feed directly into the statutory rights accorded to zero hour employees in respect of (in particular) unfair dismissal, paid parental leave and redundancy and how, for example, those rights are accrued (if at all) and attributed.  We consider this to be an opportunity for clarity to be provided both in the Law and in guidance in relation to how, for example, continuity of service is calculated for zero hour, variable hour and seasonal employees and how, for example, the rate of pay for paid parental leave, is to be calculated.

If you want to discuss any part of the consultation or your own arrangements in relation to zero and variable hour contracts, please contact a member of the employment team and we would be happy to assist.

Employment and Discrimination Tribunal – annual report

The Employment and Discrimination Tribunal (the "EDT") is an independent judicial body established to hear and determine claims arising from the three main sets of employment legislation in Jersey – the Employment (Jersey) Law 2003, the Employment Relations (Jersey) Law, 2007 and the Discrimination (Jersey) Law, 2013.

Each year, the EDT produces an annual report summarising the claims bought and determined by the EDT in the preceding year.  We have summarised below some of the more interesting statistics from the recently released Annual Report for 2021:

1. Number of claims: There were 144 claims made in 2021 (which was a decrease of about 20% from 2020). Interestingly, 29% of those claims lodged were withdrawn (for reasons unknown) and 25% were settled by JACS during the mediation process. Only 35 claims progressed through to a final hearing in 2021, leaving 20 claims undetermined by the end of the year.
2. Common claims: The most common claims made concerned unfair dismissal and discrimination followed closely by unpaid wages, unpaid annual holidays and notice pay, as well as failure to provide written terms and/or payslips. The majority of claims made involved multiple issues and few claims were based on only one issue (i.e. discrimination).
3. Success rates: Interestingly, when it came to outcomes of the determined hearings, claimants were more likely to be successful in their claims of unpaid wages, not receiving payslips and not being provided with a written contract (and generally were unrepresented), whilst employer Respondents were successful in the overwhelming majority of cases in respect of claims concerning unfair dismissal, notice pay and discrimination (and generally were represented).
4. Awards: The EDT awards "damages" for successful breach of contract claims, wrong dismissal, unpaid wages etc. and "compensation" for successful statutory claims such as unfair dismissal, discrimination and failure to provide pay slips and/or terms of employment etc. The overall value of the awards ordered by the EDT in 2021 was relatively modest with the 35 determined hearings in 2021 seeing £29,020 being awarded in damages and £43,948 being awarded in compensation.
5. Unfair dismissal: There were four successful unfair dismissal cases in 2021 – however in three of those cases, the Tribunal reduced the compensation award by 30% to 50%.
6. Discrimination: Of the 40 discrimination claims lodged in 2021, over 55% concerned allegations of disability discrimination. Of the claims that progressed to a fully contested hearing, 0% (i.e. none) of those discrimination claims were successful.
7. Legal Representation: Approximately 35% of Respondents engaged a legal representative at the commencement of the process, with that number increasing to almost 50% of Respondents being legally represented for the contested hearing.
8. Time frames: The vast majority of the determined cases saw the claim being heard within 6 months of the claim being lodged and the judgment after a contested hearing being received within 2 weeks of the hearing completing.

One of the trends that we have identified both from our experience and which is also reflected in the annual report, is that having legal representation from an early stage greatly improves a Respondent employer's chances of successfully defending a claim – whether that be by way of effectively negotiating a settlement or causing a withdrawal of proceedings or by supporting a Respondent employer through to a fully contested hearing.

Should you need any advice in respect of a threatened or actual EDT claim from a current or former employee, please contact a member of the employment team and we would be happy to assist.