GUIDE TO EMPLOYMENT LAW IN JERSEY

Transcription

1 GUIDE TO EMPLOYMENT LAW IN JERSEY CONTENTS PREFACE 1 1. Written Statement of Terms and Conditions 2 2. Written Statement of Pay and Deductions 3 3. Minimum Periods of Notice 3 4. Unfair Dismissal 4 5. Redundancy Payment and the Right to Time Off 6 6. Collective Redundancy Consultation 6 7. Discrimination 7 8. Minimum Wage 8 9. Minimum Rest Periods and Annual Leave Family Friendly Rights Contracting Out and Compromise Agreements Immigration and Hiring Foreign Nationals Summary of Key Differences with UK Law Summary of Key Rights and Penalties 14

2 PREFACE This Guide is a basic summary of employment law in Jersey. We recognise that this Guide will not completely answer detailed questions which clients and their advisers may have; it is not intended to be comprehensive. If any questions arise, please direct them to the individuals set out at the end of this Guide, using the contact information provided. Appleby Jersey March 2019 applebyglobal.com 1

3 1. WRITTEN STATEMENT OF TERMS AND CONDITIONS 1.1 Contents of Written Statement All employees are entitled to a written statement under article 3 of the Employment (Jersey) Law 2003 as amended (Law), within four weeks of the commencement of their employment, setting out the terms and conditions of their employment, which must include the following information: the identity of the employer and the employee; the employee s start date; the rate of pay, or the method of calculation of pay; pay intervals, if any; hours of work; holiday entitlement; provisions relating to sickness and sick pay; pension entitlement; maternity leave; redundancy policy; disciplinary and grievance policies; notice periods; details of fixed term (if not a permanent employee); job title; place of work; collective agreements which directly affect the terms and conditions of employment; and any requirements to work outside of Island for more than four weeks. There is no express requirement to include a statement where there is no relevant entitlement (e.g. no entitlement to a pension scheme) although it is advisable to do so. In addition, the statement may refer the employee to another document, which is reasonably accessible, which sets out details of any of the required particulars. Where there is a subsequent change in any of the terms of employment set out above, that information must generally be confirmed, in writing, to the employee not more than four weeks after the change. 1.2 Exclusions All employees regardless of their hours of work are entitled to a written statement of particulars of employment. 1.3 Enforcement and Remedies Where an employer fails to provide a written statement of terms and conditions, an employee may require a reference to the Jersey Employment Tribunal (Tribunal) for a determination of what particulars ought to have been included in a written statement. In addition, failure to comply with the obligation to provide a written statement of terms and conditions is a criminal offence, and on summary conviction the employer is liable to a fine, not exceeding level 3 on the standard scale. As at the date of this Guide the current maximum fine is 10,000. The Tribunal may also determine that the employee is entitled to up to four weeks wages. applebyglobal.com 2

4 1.4 Comments The requirement to have a basic written statement is a fairly straightforward requirement, although some employers still do not comply with it. What is unusual about Jersey is that failure to comply with this requirement is backed up with potential criminal sanctions. 2. WRITTEN STATEMENT OF PAY AND DEDUCTIONS 2.1 Contents of Pay Statement All employees are entitled to a written statement on or before the day they are due to be paid, including the following information: Contents of Pay Statement Gross amount of wages Net amount payable Amount of variable deductions Amount and method of any part payments 2.2 Enforcement and Remedies A failure to comply with the obligation to provide a written statement of term and conditions is a criminal offence and liable on conviction to a fine, not exceeding level 3 on the standard scale. As at the date of this Guide the current maximum fine is 10, Comments This requirement is something that any employer with any form of automated payroll system should be compliant with, as the information required is fairly basic. 3. MINIMUM PERIODS OF NOTICE 3.1 Qualification for the Right All employees are entitled to receive minimum periods of notice based on the length of service as follows: Period of employment Notice to be given Less than 2 years 1 week 2 years but less than 3 years 2 weeks 3 years or more 1 week for each year s continuous service up to a maximum of 12 weeks notice applebyglobal.com 3

5 All employees are required to give minimum periods of notice based on the length of service as follows: Period of employment Notice to be given Less than 26 weeks More than 26 weeks but less than 5 years 1 week 2 weeks 5 years or more 4 weeks 3.2 Exclusions The above provisions do not apply to short, fixed-term contracts of less than 13 weeks, although there are specific rules around what happens in circumstances where initial contracts are rolled over. 3.3 Comments Although this is an important right for lower paid employees, in practice, after the end of any probationary period, most employers will generally include notice periods of between one and three months for staff, with more senior staff on anything up to six or 12 months. 4. UNFAIR DISMISSAL 4.1 The Basic Right All qualifying employees have the right not to be unfairly dismissed. For these purposes, dismissal means termination by the employer, non-renewal of a fixed-term contract on its expiry, or constructive dismissal. In order for a dismissal to be fair: it must be for one of the six potentially fair reasons, namely capability, conduct, redundancy, retirement, breach of statutory duty, or restriction, or some other substantial reason; and the employer must have acted reasonably in treating the reason as sufficient for dismissing the employee. 4.2 Qualification for the Right To bring an unfair dismissal claim, an employee must generally have at least 52 weeks continuous. The key exception to this is automatically unfair dismissal, where the dismissal falls within certain categories which are deemed to be automatically unfair, in which case no qualifying period of service is required. 4.3 Exclusions This right does not currently apply to employees who are still below compulsory school age. Historically, employees whose normal hours of work were less than eight hours per week were also excluded from this right. However, now, regardless of their hours of work, employees are entitled to claim unfair dismissal. 4.4 Automatically Unfair Dismissals Where the principal reason for a dismissal is on one of the following grounds, it will be considered as automatically unfair dismissal: applebyglobal.com 4

6 Automatically unfair dismissals Trade union membership or activities Dismissal for a discriminatory reason Age Pregnancy, childbirth or maternity Assertion of a statutory right Adoption Leave 4.5 Enforcement and Remedies Any claim must be brought within eight weeks, beginning on the effective date of termination, or where it was not reasonably practicable for the complaint to have been brought, within such further time as the Tribunal considers reasonable. Where a dismissal is with notice, it is permitted to bring a claim for unfair dismissal before the notice has expired. Where the Tribunal upholds a complaint by an employee, it will make an award according to the length of service as follows: Length of service Amount of compensation Less than 6 months (automatic unfair) 4 weeks pay 6-12 months 4 weeks pay months 8 weeks pay months 12 weeks pay months 16 weeks pay months 21 weeks pay 60+ months 26 weeks pay Awards of compensation are not automatically subject to reduction on the grounds that the employee has found alternative employment and so mitigated their loss, but can be reduced in a number of specified circumstances where it is determined that it would be just and equitable to do so, such as where the employee has unreasonably refused an offer of re-employment, or based on the conduct of the employee. 4.6 Comments What is unusual about Jersey is the scale of unfair dismissal length of service awards set out above. Inevitably this figure will often influence negotiations over entering into compromise agreements. applebyglobal.com 5

7 5. REDUNDANCY PAYMENT AND THE RIGHT TO TIME OFF 5.1 The Basic Right An employee who is dismissed by reason of redundancy has a right to a redundancy payment of one week s pay for each year of service. For these purposes a week s pay is capped. With effect from 25 September 2018 the cap on a week s pay is 740. Once notice of dismissal has been served on an employee, he or she has a right to paid time off, equivalent to 40% of one of his or her normal working weeks, in order to look for new work or make arrangements for training or future employment. In the case of a full-time employee this would equate to two days time off in total. 5.2 Qualification for the Right In order to qualify for the statutory right to a redundancy payment and paid time off, employees must have a minimum of two years continuous service. Unlike unfair dismissal, the right to a redundancy payment extends to those employees who are below compulsory school age. 5.3 Exclusions An employee will lose the right to a redundancy payment if he or she refuses to accept a reasonable offer of suitable alternative employment. 5.4 Enforcement and Remedies Any claim for a redundancy payment must generally be brought within six months, beginning on the effective date of termination, or where this does not occur, in certain limited circumstances where the Tribunal considers it just and equitable. Any claim where there has been a refusal to allow paid time off must be brought within eight weeks, beginning on the date on which the time off should have been permitted, or where it was not reasonably practicable for the complaint to have been brought, within such further time as the Tribunal considers reasonable. Where the complaint is upheld, the Tribunal may order the employer to pay compensation on such basis as it considers reasonable. 5.5 Comments Redundancy payments are payable in addition to any notice entitlement. Whilst payments in lieu of notice are taxable, the first 50,000 of any redundancy payment is currently exempt from income tax. 6. COLLECTIVE REDUNDANCY CONSULTATION 6.1 The Basic Right In circumstances where there are 12 or more employees likely to be made redundant (including voluntary redundancies) at one establishment, within a period of 30 days or less, there is a legal requirement to collectively inform the employees and then consult with appropriate representatives prior to initiating any individual consultation. For these purposes appropriate representatives means a recognised trade union; or where there is no union in place, existing employee representatives; or, where there are no existing representatives, newly elected representatives. In addition, an employer is under a legal obligation to notify the Minister for Social Security before notices of dismissals are issued and/or at least 30 days before the first of the redundancies takes effect. applebyglobal.com 6

8 6.2 Qualification for the Right The right generally applies to all employees regardless of service, and extends to those who ultimately remain with the organisation. 6.3 Exclusions An employee employed on a fixed-term contract of one year or less will not be counted for these purposes unless the employee was previously employed under another fixed-term contract of one year or less and the interval between the fixed-term contracts was not more than nine weeks. There is a narrow exception to the obligation where an employer can show there were special circumstances and the employer took all such steps towards compliance as were reasonably practicable. 6.4 Enforcement and Remedies Where there has been a failure to consult, an employer may be liable to pay a protective award of nine weeks pay per employee. In circumstances where there are appropriate representatives, the claim must be brought by them rather than the individual employees. If there are no appropriate representatives, then individual employees may bring the claim themselves. 6.5 Comments The obligation to collectively consult is in addition to the normal duty to consult with individuals over potential redundancies. 7. DISCRIMINATION 7.1 The Basic Right It is unlawful to discriminate against people within the workplace on the grounds of a protected characteristic. The protected characteristics which are currently in force include: race; sex; sexual orientation; gender reassignment; age; disability; and pregnancy and maternity. Discrimination for these purposes includes: Direct discrimination this occurs when a person is treated less favourably than another person because of a protected characteristic; Indirect discrimination this occurs when an employer applies a provision, criterion or practice which applies to all employees but which is in detriment to a considerably larger proportion of people based on a protected characteristic and which the employer cannot show to be justifiable; Harassment - unwanted, unreasonable or offensive conduct (physical, verbal or otherwise) of a nature related to a protected characteristic or other conduct based on the same grounds affecting the dignity of a person or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person; and applebyglobal.com 7

9 Victimisation this occurs where a person is subjected to less favourable treatment on the grounds that they have either complained about discrimination, or supported another employee who has complained about discrimination, except in cases of bad faith. 7.2 Qualification for the Right The right extends to all employees regardless of length of service, as well as to job applicants and temporary agency staff. 7.3 Exclusions There are a number of exclusions to the law, but the key ones are as follows: Genuine Occupational Qualification (GOQs) typical examples of GOQ s include the engagement of a female actor to play a female role in a production, or in cases of decency where the job would involve close physical contact by a member of the opposite sex and there would be reasonable objection; and Compliance with the law there is a general exclusion in cases where the act concerned is done necessarily for the purpose of complying with a legal requirement. There are a number of additional important exclusions to consider, including: Employment benefits there is a general exclusion for service related benefits and for all insurance related benefits that exclude employees over pensionable age; Pensions there is a general exclusion for any occupational, personal or group personal pension schemes. 7.4 Enforcement and Remedies Any claim must be brought within eight weeks, beginning on the date of the act complained about, or where it was not reasonably practicable for the complaint to have been brought, within such further period as the Tribunal considers reasonable. Where the Tribunal upholds a complaint by an employee, it shall make an award for any financial loss suffered up to 10,000, for any hurt and distress up to 5,000, provided that the overall sum under both heads shall not exceed 10,000. For cases of dismissal on the grounds of a protected characteristic, see the Unfair Dismissal section above. 7.5 Comments It is recommended that all employers should have an equal opportunities policy which explains to staff the position of the company on such issues. In addition it is recommended that equal opportunities training should be given to staff so that they can understand the risks involved, including the fact that it is possible for individuals to be personally liable for acts of discrimination, as well as their employers. 8. MINIMUM WAGE 8.1 The Basic Right All employees are entitled to receive the minimum wage, which is reviewed annually. It was however recommended to the States of Jersey (States) that there should be a 6.9% minimum wage increase in It has been agreed that this be done in two stages. With effect from 1 st April 2019, the minimum wage rates are as follows: for employees 7.88 per hour; trainee Rate Year per hour; and applebyglobal.com 8

10 trainee Rate Year per hour. With effect from 1 st October 2019, the minimum wage rates are as follows: for employees 8.02 per hour; trainee Rate Year per hour; and trainee Rate Year per hour. For the purposes of the Law, an employee will only be regarded as a trainee if he or she is receiving approved training that is agreed in writing by both parties before their employment starts, has a defined structure and objectives that relate to the performance of the employee in their particular job, and training outcomes are assessed and documented. Where a worker is provided with accommodation and food, the maximum amount that can be offset against a wage that an employer can make is (as of 1 st April 2019) and (as of 1 st October 2019) per week. If a worker is provided with accommodation only, then the maximum amount that can be offset is (as of 1 st April 2019) and (as of 1 st October 2019) per week. These rates may be offset further for trainees. The appropriate rate is calculated by reference to the employee s average hourly pay during any pay reference period. For those employees paid monthly, the pay reference period is a month, whereas for those paid weekly it will be a week. Any employee has the right not to be subjected to a detriment in connection with the minimum wage. 8.2 Qualification for the Right The right applies to all employees over compulsory school age employed in Jersey or the territorial waters of Jersey regardless of length of service. 8.3 Exclusions Certain special classes of person are excluded from the right including certain fishermen and mariners, prisoners, voluntary workers and religious workers. It should be noted that the right in Jersey only extends to employees; it does not apply to the wider category of workers as is the case in the UK and Guernsey under their equivalent legislation. Most payments made to employees will count towards the calculation of the minimum wage, but there are a number of important exclusions including certain allowances and tips. 8.4 Enforcement and Remedies The law can be enforced either by individual workers through the Tribunal or the Courts, or by the States themselves through enforcement officers. There is a statutory presumption against compliance, and therefore the burden is on the employer to prove compliance with the law. Where a complaint is upheld, an employee shall be entitled to an award equal to the shortfall in pay, plus interest. Where the Tribunal upholds a complaint by an employee that they have been the subject of a detriment, the Tribunal shall make an award of such amount as it considers just and equitable in all the circumstances, having regard to the infringement and any loss suffered. For cases of dismissal connected with the minimum wage see the Unfair Dismissal section above. Refusing or wilfully neglecting to pay the minimum wage, failing to keep records, or keeping false or misleading records are all criminal offences. Penalties include fines, up to 12 months in prison for certain offences, or both. applebyglobal.com 9

11 8.5 Comments For employers who operate more complicated pay structures, it can actually be very difficult to properly calculate the appropriate rate of pay, as not all payments made will qualify. In addition, there is the possibility of criminal sanctions for both the employer and responsible individuals, which may include a custodial sentence. 9. MINIMUM REST PERIODS AND ANNUAL LEAVE 9.1 The Basic Right All employees are entitled to: an uninterrupted rest period of not less than 24 hours in each seven day period; a minimum period of two weeks paid annual leave; paid leave on Christmas Day, Good Friday and all other public or bank holidays observed in Jersey provided that they are normally required to work, or time off in lieu; payment of accrued but untaken leave upon termination. 9.2 Qualification for the Right The right extends to all employees regardless of length of service. 9.3 Exclusions There are no significant exclusions to this right. 9.4 Enforcement and Remedies Employees can bring claims before the Tribunal to enforce their rights, and if successful can receive compensation. 9.5 Comments In practice, most employers will tend to offer more generous terms than the minimum standard set out above. 10. FAMILY FRIENDLY RIGHTS 10.1 The Basic Right Employers in Jersey are now obliged to offer statutory maternity leave or pay, and there is now also a right to flexible working. Employees are entitled to a maternity allowance from the States of up to 18 weeks. New legislation introducing a number of new family friendly rights has recently come into force in part, and includes: a right to maternity leave which will require employers to provide 18 weeks in total, made up of two weeks paid leave following the birth of the child, followed by a further period of unpaid leave of 16 weeks for those who have 15 months or more continuous service, or 6 weeks for those that have less; a right for an employee to have keeping in touch days, without breaking their maternity leave period; a right to adoption leave which will require employers to provide 18 weeks unpaid leave for those who have 15 months or more continuous service, or eight weeks for those that have less; a right to two weeks unpaid parental leave; applebyglobal.com 10

12 a right to return to the old job following conclusion of the statutory leave period; and a right to request flexible working. Right September 2018 September 2019 Maternity Leave 26 weeks of leave of which 6 weeks paid at 100% of pay by the employer, both with no qualifying period. Parental Leave Leave Adoption & Surrogacy 2 weeks paid leave at 100% of pay by the employer and 24 weeks unpaid leave, both with no qualifying period. Can be taken in up to 3 blocks of leave. Paid and unpaid leave equivalent to maternity leave and parental leave. The elected adopter or main intended parent takes the paid leave. Parental leave is available for both parents. 52 weeks of leave including 6 weeks paid leave at 100% of pay by the employer. States to consider funding an additional 6 weeks of paid leave at 100% of pay. Can be taken in up to 4 blocks of leave. Also available to adoptive and intended parents. Antenatal father / partner Antenatal intended surrogate parents Unlimited attendance at appointments up to 10 hours paid, the rest unpaid. Unlimited attendance at appointments for both parents. Intended parent 1 paid. Intended parent 2 up to 10 hours paid, the rest unpaid. No further change. No further change. Adoption appointments Unlimited attendance at appointments for both parents. Adoptive parent 1 paid. Adoptive parent 2 up to 10 hours paid, the rest unpaid. No further change. Flexible working Breastfeeding rights Paid absence on health and safety grounds Right to request for all employees with no qualifying period. Right to request reasonable breaks and employers must take reasonable steps to provide facilities in the workplace. Right to paid absence where risk assessment prevents a pregnant or breastfeeding employee from carrying out her normal job and No further change. No further change. No further change. applebyglobal.com 11

13 Right September 2018 September 2019 she cannot be allocated to other duties Qualification for the Right The new right to request flexible working will be subject to a minimum of 15 months or more continuous service. The other proposed new rights will apply to all employees, albeit the duration of leave will differ with the length of service Exclusions An employer may refuse a request for flexible working on the following grounds: the burden of additional costs; employer would be unable to meet customer demand; inability to re-organise the workload among existing employees or recruit additional employees; detrimental impact on quality or performance of the business; lack of work during the employee s proposed working times; adverse effect on the employer s planned staffing changes; or payment would be made to the employee for the care provided Enforcement and Remedies Any claim in relation to flexible working must be brought within eight weeks beginning on the date the employee was notified of the employer s decision in the appeal or the date of the breach of the statutory requirement, or where it was not reasonably practicable for the complaint to have been brought, within such further period as the Tribunal considers reasonable. Where a claim in relation to flexible working is upheld, the Tribunal will be able to order an employer to either reconsider the application and / or make a compensation payment of up to four weeks pay Comments In practice it is likely that claims surrounding these family friendly rights will usually be accompanied by a sex discrimination claim. 11. CONTRACTING OUT AND COMPROMISE AGREEMENTS 11.1 The Basic Right Any provision which purports to exclude or limit any right or otherwise to preclude any person from bringing proceedings before the Tribunal is void, with the exception of: a conciliation agreement reached through Jersey Advisory and Conciliation Service; or a valid compromise agreement Compromise Agreements It is possible for employees to waive any rights they may have to bring a claim to the Tribunal by entering into a valid compromise agreement which complies with the following conditions: the agreement is in writing; the agreement relates to the particular proceedings; applebyglobal.com 12

14 the employee has received independent legal advice on the terms of the agreement; the adviser had in force at the time the advice was given provision for insurance; the agreement identifies the adviser; and the agreement states that the conditions regulating compromise agreements are satisfied. Legal advice on a compromise agreement can be given by a solicitor or advocate entitled to practise in Jersey, a certified officer of the trade union and certain workers at advice centres Comments Although there is no legal requirement to make a contribution towards an employee s legal costs of obtaining independent advice, it is customary to do so. 12. IMMIGRATION AND HIRING FOREIGN NATIONALS 12.1 There are strict controls within Jersey around the employment of non-residents In order to take up employment within Jersey, it is necessary for any employer to obtain from any employee a valid Registration Card as well as photographic ID. That card will specify which one of the following four residential categories that the individual falls into: Status Definition Work Entitled Lived in Jersey for ten years Can work anywhere without restriction Licensed An Essential Employee with less than ten years residence Employer needs a business licence and must not exceed cap on Licensed employees Entitled to Work Lived in Jersey for five years, or married to an Entitled, Licensed or Entitled to Work person Can work anywhere and doesn t need a licence to be employed Registered Someone who does not qualify under the other categories Employer needs a business licence and must not exceed cap on Registered employees 12.3 Anyone operating a business must also hold a Business Licence which is issued by the Population Office. That licence will specify: (a) (b) (c) the permitted licensed activity; a cap on the number of Licensed employees they are allowed to employ; and a cap on the number of Registered employees they are allowed to employ. There is no cap on the number of Entitled or Entitled to Work employees that a company is allowed to employ There are a number of detailed rules around how these numbers are calculated as well as a number of exceptions in relation to short term arrangements and existing employees, but before engaging anyone to undertake any work in Jersey, specific advice should always be sought around how the rules apply to the particular business. applebyglobal.com 13

15 12.5 All employers are required by law to keep records of the Registration Card and Photographic ID. Failure to hold valid documentation is a criminal offence In addition to the above, all non-eea persons require a work permit to be employed in Jersey. 13. SUMMARY OF KEY DIFFERENCES WITH UK LAW Although Jersey law and a number of new laws do bring the position closer to UK law in a number of regards, the following are some of the key areas where there is no equivalent local legislation. Discrimination Other areas Disability Religion or belief Age* Whistleblowing Sick pay No right to written reasons for dismissal TUPE Agency workers 14. SUMMARY OF KEY RIGHTS AND PENALTIES Employment Right Penalties Written statement of terms and conditions Criminal offence - max fine level 3 10,000 Written statement of pay and deductions Criminal offence - max fine level 3 10,000 Employer minimum periods of notice Employee minimum periods of notice Unfair dismissal Failure to collectively consult on redundancies Discrimination Minimum wage 1 to 12 weeks notice 1 to 4 weeks notice 4 to 26 weeks pay 9 weeks pay 10,000 (detriment) Criminal offence up to 12 months in prison applebyglobal.com 14

16 For more specific advice on employment law in Jersey, we invite you to contact: Jersey Michael Cushing Partner Dispute Resolution +44 (0) Guernsey Richard Sheldon Partner Dispute Resolution +44 (0) For the convenience of clients in other time zones, a list of contacts available in each of our jurisdictions may be found here. This publication is for general guidance only and does not constitute definitive advice Appleby Global Group Services Limited 2018 applebyglobal.com 15