Jersey: Starting Point Employment Law Guide: Jersey Employment Law’

INTRODUCTION

Carey Olsen Starting Point Guides are intended as a general introduction and guide to different aspects of Jersey law.

They are a summary of the most important issues that we come across. It is very much the edited highlights of those issues. If you would like legal advice in relation to any specific circumstances, please do give us a call.

This Starting Point Guide provides a brief overview of Jersey employment law.

INTRODUCTION TO JERSEY

Jersey is the largest of the Channel Islands and is a British Crown dependency.

It has its own financial, legal and judicial systems. It is not part of the UK or of the European Union (although it has close relationships with both).

SOURCES OF JERSEY EMPLOYMENT LAW

The duties of Jersey employers and employees derive from a number of sources which include:

• statute law;
• customary/common law (i.e. judicial precedent); and
• employment contracts and other documentation.

There is less employment legislation in Jersey than in the UK, although the amount of legislation in this area is increasing.

There is a Jersey Employment Tribunal (the "Tribunal") which hears employment related claims. Contractual claims of over £10,000 are dealt with by the Royal Court of Jersey.

The Jersey law of contract is somewhat different from the English law. However, when it comes to employment contracts, the Jersey courts and tribunals have generally (although not exclusively) had regard to English law and principles – particularly when it comes to implied contractual duties.

In general employment law in Jersey is heavily influenced by English case law and so it is often the case that English cases relating to employment law will be cited before the Tribunal or Courts in Jersey. Whilst English law heavily influences the development of employment law in Jersey, a company should be careful to ensure that it obtains Jersey employment law advice in relation to any employees working wholly or mainly in Jersey. This is because there are some important differences between the two jurisdictions.

THE EMPLOYMENT (JERSEY) LAW 2003 (THE "EMPLOYMENT LAW")

The Employment Law is the key statute governing Jersey employment issues.

The following is a summary of its key provisions:

Who is an employee?

The Employment Law applies to both those employed under a contract of employment and to certain individuals who are under an obligation to perform their work personally (and, in particular, to those who would be regarded as "workers" under English law).

Notice Periods

The Employment Law lays down the following periods of notice to be given by an employer:

An employee who has been continuously employed for 26 weeks or more must give a minimum of:

• 2 weeks' notice if his or her period of continuous employment is less than 5 years; or
• 4 weeks' notice if his or her period of continuous employment is 5 years or more.

The above does not prevent an employment agreement from providing for a longer period of notice (but not a shorter period) – and nor does it prevent an employment contract being entered into for a fixed term.

Written Terms & Conditions of Employment

Employers are under a duty to provide employees (assuming they work 8 hours per week or more) with a written statement of the terms of their employment within 4 weeks of the commencement of their employment. The key terms which must be provided include (amongst others):

• Names of the employer and the employee.
• Date the employment started.
• Date when employee's period of continuous employment began, taking into account any employment with a previous employer which counts, such as in a business transfer.
• Terms relating to rates of pay.
• Terms and conditions that relate to hours of work.
  • Terms and conditions relating to:- Holiday
  • Sickness/sick pay
  • Pension
  • Maternity leave
  • Redundancy
  • Disciplinary and grievance procedures.

If an employee is transferring from the UK to work for the Jersey branch of the same company then it is likely that his or her continuous employment will begin from the date he began working for the company in the UK. The length of continuous employment is relevant when calculating whether an employee has sufficient length of service to be eligible to bring a claim for unfair dismissal.

If there is a change in the terms the employer must inform the employee of the change in a further written statement not more than four weeks after the change.

Minimum rest periods and annual leave

The UK Working Time Regulations 1998 (as amended) do not apply in Jersey. However, under the Employment Law, an employee is entitled to an uninterrupted rest period of not less than 24 hours in each seven day period. The employer and employee may agree how this should work.

Under the Employment Law an employee is entitled to a minimum period of 2 weeks' paid annual leave, although his or her contract of employment may provide for a longer period of annual leave.

Employees are also entitled to have as paid leave Christmas Day, Good Friday and all other public or bank holidays observed in Jersey provided that they are normally required to work on the days upon which those public and bank holidays fall.

The Law does allow an employee to work on these days provided equivalent leave, selected by the employee, is provided.

Minimum wage

An employee who is above compulsory school age is entitled to receive the minimum wage.

From 1 April 2014 the minimum wage is £6.63 per hour.

A trainee rate may be paid to an employee of any age who is undertaking approved training for a maximum period of two years, at any time within the first two years of a new job.

The maximum two year training period starts running from the first day of employment in the particular job. Training does not have to start on day-one of the new job, but the trainee rate may only be paid whilst an employee is undertaking approved training.

Training is 'approved training' if it is formal training that:

• is agreed in writing by both parties before employment starts;
• has a defined structure and objectives that relate to the performance of the employee in their particular job; and
• has training outcomes which are assessed and documented.

The current trainee rate is:

• Year One - £4.97 per hour (from 1 April 2014); and
• Year Two - £5.80 per hour (from 1 April 2014).

The current maximum values that may be offset each week against the minimum wage where accommodation, or accommodation and food, are provided to an employee, are:

• £72.54 for accommodation (from 1 April 2014); or
• £96.72 for accommodation and food (from 1 April 2014).

Unfair dismissal

Qualifying employees have the right not to be unfairly dismissed. Employees generally will have unfair dismissal rights after 26 weeks (for permanent employment).

Any employee may claim that a dismissal was automatically unfair at any stage of employment if it is for one of the 'automatically unfair reasons' specified in the Employment Law (for example, where the dismissal is on grounds related to union membership or activities).

If an employee is employed under a fixed term contract then he will be entitled to bring a claim for unfair dismissal after he has worked for two-thirds of the term of that contract or thirteen weeks (whichever is the longer). Accordingly, fixed term employees can acquire unfair dismissal rights before their permanent colleagues.

Once it has been established that a dismissal has taken place, it must then be determined whether the dismissal was fair or unfair and it is for the employer to show that the reason for the dismissal falls under one of the five "fair reasons" specified in the Employment Law. The five potentially fair reasons are as follows:-

a reason relating to the capability or qualifications of the employee for performing the work of the kind he was employed to do;

a reason which relates to the conduct of the employee;

by reason of redundancy;

by reason of the fact that the employee could not continue to work in the position which he held without contravention of a restriction or a duty imposed by statute; or

some other substantial reason justifying dismissal.

Whether a particular dismissal based on one of the five reasons set out above will be fair or unfair will depend on whether in the circumstances of the case (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating the reason as a sufficient reason for dismissing the employee.

If a claim does go before the Tribunal and a finding is made in favour of an employee then the employee will be awarded compensation. In Jersey calculating the compensation payable is simpler than in England since an award will be made based on the length of service as follows:

The Tribunal has the power to direct that an employee who has been dismissed should be re-employed by his or her previous employer, as well as allowing the Tribunal to reduce the amount of compensation awarded to an employee in certain circumstances (e.g. where an employee's conduct directly contributed to the dismissal).

Redundancy

In broad terms an employee is eligible to receive a statutory redundancy pay under Jersey law if he/she is dismissed by his employer by reason of redundancy and he/she has at least 2 years' continuous service with the employer. In certain circumstances employees who have been employed under a series of fixed term contracts can also accrue the requisite 2 years' service.

Statutory redundancy pay is calculated on the basis of 1 weeks' pay for every full year of service. There is no upper limit on the number of years' service which qualify. Pay is capped at the level of weekly average earnings, currently £660.

Where an employee is entitled to receive a larger redundancy payment as a result of a contractual entitlement then this will override the statutory entitlement.

Specific collective consultation provisions apply where an employer makes 12 or more employees redundancy from one establishment within a 30 day period. A minimum of 30 days' collective consultation is required.

If collective consultation requirements are not triggered then an employer will still have to engage in an individual consultation process to avoid an unfair dismissal claim.

An employee who is given notice of dismissal by reason of redundancy (and who has been continuously employed for 2 years or more) is entitled to take paid time off during his notice period equivalent to 40% of one of his normal working weeks (i.e. a total of 2 working days for those working a standard 5 day week), for the purposes of looking for work.

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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.