WORKING IN GUERNSEY: AN OVERVIEW. By Rachael Beresford, Senior Associate. and Louise Hall, Partner

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1 WORKING IN GUERNSEY: AN OVERVIEW By Rachael Beresford, Senior Associate and Louise Hall, Partner Guernsey is a separate legal jurisdiction from the UK. It has its own employment laws and, due to its size, controls are in place regulating who can live and work in the Island. Anyone coming to Guernsey must not only have valid entry clearance under the Island s immigration rules but must also comply with the housing and right to work laws. This Red Guide provides a basic overview of the key factors of these rules and laws. Immigration British citizens and nationals of other European Union member states and Switzerland (or a family member) may enter the Bailiwick of Guernsey ( the Bailiwick ) and remain indefinitely for the purpose of undertaking employment or other business activities. Alternatively, British ancestry provisions (i.e. maternal or paternal grandparentage) may be relied upon to apply for entry clearance to work in the Bailiwick for up to four years. If neither of the above provisions can be relied on, permission will be required to enter and/or stay in the Island, either under the business visitor or the work permit provisions of the Bailiwick s immigration rules. A person is permitted to enter the Bailiwick as a business visitor provided that certain requirements are met. These include that the length of stay must not exceed six months, there must be no intention to take up employment in the Bailiwick and that activities undertaken must be limited to business transaction activities (such as attending meetings and briefings, fact finding, negotiation or entering contracts with businesses in the Bailiwick to buy or sell goods or services). The alternative to entry clearance as a business visitor is entrance under work permit. Applications for work permits are made to the Immigration and Nationality Division of the Home Department. The applications can only be made by Bailiwick of Guernsey based employers on behalf of the person they wish to employ. There is no ability under the law for individuals to apply on their own behalf. Work permits are only available for full time employment in certain industry sectors such as finance, industry, health, education, government lawyers, veterinary surgeons and hospitality. All jobs must be advertised both locally and throughout the European Economic Area prior to a work permit being granted. If granted, work permits will allow continuous employment for a maximum period of four years. Permission to take or continue employment for a period exceeding four years

2 will be considered for the industry sectors set out above except hospitality. Account will be taken both of the essentiality of the post and the essentiality and the appropriateness of the post-holder before a permit exceeding four years, or an extension, is granted. Housing/Right To Work Any person who lives in Guernsey must be lawfully housed under the Island s Housing Control laws. If they intend to work, they must also hold a Right to Work document. The document which evidences a person s right to be lawfully housed in the Island is also their Right to Work document. The requirement to be lawfully housed and to hold a Right to Work document is in addition to having immigration status. Guernsey operates two housing regimes known as the local market and the open market. In simple terms, local market housing is available for occupation by those who were born and brought up in Guernsey or who otherwise have close connections with the Island ( Locals ) and also by those who are regarded as essential workers. Open market housing is available to anyone who has entry clearance into Guernsey as a British or EU citizen (or a family member) or who has clearance to enter under work permit. The owner/occupier of open market accommodation can apply for a Declaration of Lawful Residence which will constitute his/her Right to Work document. A person who wishes to live in local market accommodation but who is not a Local may be permitted to do so under a housing licence. There are two main categories of employment related housing licence: short term licences issued in recognition of a lack of manpower in the Island and essential housing licences issued in respect of posts that require specialist skills and/or qualifications that are either not available locally or where the supply of skilled/qualified local workers falls short. Essential workers will require a housing licence before they can take up employment. A licence is issued for a particular post rather than an individual and is not transferable to a different post within the employer s organisation or to another employer. Applications for a housing licence are made by an employer completing a standard, albeit it rather complicated, form (a Statement in Principle or SIP form) which has to include details of efforts made to recruit locally for the position. This evidence is usually in the form of a minimum of two adverts in the local press but could be an advert in the local job centre for at least four weeks for more junior posts. An essential licence is typically granted for a maximum period of five years. The reason behind this time limit is to keep the Island s population at its current level around 62,000 people. The Housing Department does have the discretion under the Housing Law to grant essential licences for up to fifteen years for posts which require very highly skilled employees (including very senior positions in key industries on the Island). Once a fifteen year licence holder has served their time, they stand to become qualified residents in their own right entitled to a status declaration (the Right to Work document issued to a Local person). An essential worker will be permitted to have dependants living with them but will be

3 restricted in their accommodation options to properties either above a certain TRP (tax on real property) value, typically at the higher end of the price band, or to properties with a maximum number of habitable rooms, usually three ( amenity rooms such as kitchens and bathrooms do not count). The housing options available to short term licence holders are much more restrictive. Holders of these licences will usually be restricted to occupying hotel or board and lodging accommodation and they will not be permitted to have dependants living with them. A process is currently underway which is likely to result in a change to the existing housing licence regime with the housing licence system being replaced by an employment permit system. However, these proposals are unlikely to be implemented in the short term. Employment Law As referred to above, Guernsey is a separate jurisdiction from the UK, with its own employment laws. The most significant of these laws are: and the right to request written reasons for dismissal; The Sex Discrimination (Employment) Guernsey Ordinance 2005, as amended, which confers the right not to be discriminated against or victimised on the grounds on gender, marital status or gender reassignment; The Minimum Wage (Guernsey) Law 2009, as amended, which confers the right to be paid a minimum hourly wage. These laws apply to employees who work wholly or mainly in Guernsey or who ordinarily work in Guernsey but are temporarily working outside of the Island for the same employer. Terms and Conditions of Employment Under the Conditions of Employment (Guernsey) Law 1985, as amended, all employees, regardless of the number of hours worked, must be provided with a contract or written statement of their main terms and conditions of employment. The statement must be provided within four weeks of the employee starting work. The Conditions of Employment (Guernsey) Law 1985, as amended, which confers the right to be provided with a written statement outlining the main terms and conditions of employment; The written statement must include, or else refer the employee to some other reasonably accessible document (such as an employee handbook) which contains, the following information: The Employment Protection (Guernsey) Law 1998, as amended, which confers the right to claim unfair dismissal (generally after twelve months employment with certain limited exceptions), minimum statutory notice The names of the employer and employee; The date when the employment commenced;

4 The rate of pay or method of calculating pay (including overtime rates and other pecuniary benefits); The intervals at which remuneration is paid (e.g. weekly, monthly or some other period); Hours of work; Holiday entitlement, including public holidays, holiday pay and entitlement to accrued holiday pay on the termination of employment; Sick pay and other terms and conditions relating to incapacity; Pension entitlement; Notice provisions on the termination of employment; Job title; and Any terms and conditions relating to maternity pay, maternity leave and the employee s right to return after a period of confinement. With very limited exceptions, the law does not specify any minimum terms but any written statement or contract must specifically refer to each point above even if there is no specific entitlement. So for example, in relation to pension entitlement, if no pension is provided this must be specifically stated. If there is a change in the terms of employment, the employer must inform the employee in writing within four weeks of the change. There are no laws in Guernsey which impose a statutory limitation on the number of hours an employee can work per day or week. Similarly, there is no law which confers a right on employees to be provided with rest breaks, although the Guernsey courts may look to the UK where a twenty minute break is required in a six hour period as best practice for employers to follow. In relation to holiday, there is no legal entitlement to paid holidays in Guernsey and there is no statutory requirement for employers to give employees time off with pay, or time off in lieu, in respect of public holidays. There is also no entitlement to statutory sick pay or sick leave in Guernsey, with any terms relating to sick pay being purely contractual (although a system of social security benefits, including sickness benefits, operated in Guernsey). Similarly, there is no law in the Island requiring employers to provide paid maternity leave, although employees with sufficient contribution record will be entitled to claim States Maternity Allowance. The States of Guernsey voted in early 2012 to introduce a statutory maternity regime. The main provisions of the regime are that every woman will be entitled to a basic maternity leave of twelve weeks, including a two week compulsory period immediately following the birth. Any woman who has worked continuously for her employer for fifteen months immediately prior to her due date will be entitled to enhanced maternity leave of twenty six weeks, again to include the two weeks compulsory leave period. There are no proposals to introduce statutory paternity leave, although the States has voted to introduce a two week period of statutory maternity support leave for the father or

5 mother s partner provided they have worked for their employer for a continuous period of fifteen months. The same rights to basic, compulsory and enhanced maternity leave and maternity support leave will also be available to adoptive parents where the child to be adopted is below the age of 18. In relation to pay, the States decided against bringing in a statutory maternity pay regime but instead have voted to enhance the current system of social security benefits. The introduction of the new regime has been delayed pending a decision on how the benefits will be funded. Unfair Dismissal The Employment Protection (Guernsey) Law 1998, as amended ( the Employment Protection Law ), provides that every employee (including part time employees) who has been continuously employed for a period of one year or more shall have the right not to be unfairly dismissed. The one year qualifying period does not apply, and the dismissal is normally considered to be automatically unfair, if the employee is dismissed for a reason connected with pregnancy, health and safety, membership of a trade union, for asserting a statutory right, refusal to work on Sundays (shop workers) or because the dismissal constitutes an act of discrimination ( Automatically Unfair Reasons ). There are five potentially fair reasons to dismiss an employee under the Employment Protection Law which relate to: i) the capability or qualifications of the employee for performing work of the kind which they were employed to do; ii) the conduct of the employee; iii) redundancy; iv) circumstances where the continuation of the employment would contravene any restriction or duty imposed by statute; and v) some other substantial reason such as to justify dismissal. As regards matters relating to conduct and redundancy, the Commerce & Employment Department has issued Codes of Practice entitled Disciplinary Practice and Procedures in Employment and Handling Redundancy which should be adopted as best practice when dealing with such matters. Complaints of unfair dismissal are heard by the Guernsey Employment and Discrimination Tribunal ( the Tribunal ) which is made up of three members (one chairperson and two side members chosen from a panel of members appointed under the law). There is no requirement for the Tribunal members to be legally qualified. A complaint must be submitted to the Secretary to the Tribunal within three months of the effective date of termination. The Tribunal does have the discretion to hear out of time complaints in very limited circumstances. If a complaint is upheld, the Tribunal will make a compensatory award in favour of the employee. The award equals the amount of gross pay received by the employee in the six months preceding the dismissal. Pay for these purposes includes any overtime, holiday pay and any other pecuniary benefits paid to the employee in cash. The Tribunal does have the discretion to reduce an award in circumstances where it is just and equitable for it to do so. However, this ability to reduce an award does not apply if it is shown that the reason for the dismissal was one of the Automatically Unfair Reasons. The Tribunal

6 may, in certain circumstances (mainly relating to witness costs), award costs to either party. The law does not allow a party to recover the costs of legal representation. Statutory Minimum Notice Under the Employment Protection Law, the minimum period of notice to be given by either an employer or an employee are as follows: where an employee has been continuously employed for a period of one month or more but less than two years, not less than one week s notice must be given; where an employee has been continuously employed for a period of two years or more but less than five years, not less than two weeks notice must be given; and where an employee has been continuously employed for a period of five years or more, not less than four weeks notice should be given. If the contract of employment sets out a period of notice greater than the minimum required by the law, the contractual period of notice will prevail. The minimum period of notice does not apply to a fixed term contract lasting for three months or less or a contract to undertake a specific task which is not expected to last for more than three months. Right to Written Reasons for Dismissal Under the Employment Protection Law, an employee who is dismissed and who has been continuously employed for a period of one year as at the termination date is entitled, on request, to a written statement of reasons for dismissal. The employer must provide the statement, giving particulars of the reasons for dismissal, within seven days of the request. The requirement for one year s continuous service and for a request to be instigated by the employee is waived in the case of a female employee if she is dismissed at any time during her pregnancy or her maternity leave. If an employer fails to provide a written statement of reason for dismissal within the required timeframe, or provides a statement containing inadequate or untrue reasons, an employee can make a complaint to the Tribunal. If upheld, a compensatory award equal to half a month s gross pay will be made to the employee. Again, pay will include any overtime pay, holiday pay and any pecuniary benefits paid to the employee in cash. Sex Discrimination It is unlawful to discriminate in the employment field in Guernsey on the grounds of sex, marital status or gender reassignment. Discrimination can arise at any stage of the employment relationship and can also extend to acts or omissions before the relationship commences or after it terminates (for example, discriminatory questions at the job interview or discriminating by refusing to provide a job reference to a new employer). Discrimination can either be direct (where an employee experiences less favourable treatment purely based on gender, marital status or gender reassignment) or indirect (where an employer applies what appears to be a gender-neutral provision, criterion or practice ( PCP ) but that PCP adversely affects a considerably larger portion of one sex than the other, including the claimant, and cannot be justified). There is an exception which permits an employer to confine a job to persons of one sex if being a member of that sex is a genuine occupational qualification.

7 Guernsey law also protects employees from victimisation by making it unlawful to treat someone who has brought or supported a sex discrimination complaint less favourably than other persons. There is no qualifying period required to bring a complaint of sex discrimination. A complaint of sex discrimination will be heard by the Tribunal and, if upheld, a compensatory award of three months gross pay will be made. Again, pay means all salary paid to the employee including overtime, holiday pay and any other pecuniary benefit paid to the employee in cash over the preceding three months. The Tribunal again has the discretion to reduce the award if it is just and equitable to do so. Guernsey s Commerce & Employment Department may also act in cases of alleged discriminatory practices by investigating a complaint and issuing a Non-Discrimination Notice where discrimination is found to exist. The penalty for failing to act in accordance with a Non-Discrimination Notice is a fine not exceeding 5,000. Minimum Wage Under The Minimum Wage (Guernsey) Law 2009, as amended, all employees (except share fishermen, prisoners and voluntary workers) have a statutory right to be paid not less than the hourly rate approved by the States. The rates applicable from 1 October 2014 are 6.65 per hour for workers aged 18 and over and 5.55 for workers aged 16 or 17. Other Legislation which effectively mirrors the law in the UK. Guernsey also has health and safety legislation which finds parallels in UK legislation, although the raft of regulations which have been introduced under the UK Health and Safety Law are missing. There is no legislation regarding whistleblowing in Guernsey and there are no provisions which specifically apply to agency workers. There is no statutory protection equivalent to TUPE in Guernsey against dismissal, or changes to terms and conditions, on a business transfer and currently no race, age, religion, sexual orientation or disability discrimination. The States of Guernsey has, however, approved the introduction of disability discrimination legislation by This Red Article does not constitute legal advice and should not be relied upon as doing so. Specific advice should be sought in any particular case. If you have any questions arising out of this Red Article or generally in relation to employment issues, please contact our employment team on +44 (0) , or by at employment@aohall.com. Members of our employment team, together with their contact details, are listed on our website AO Hall 2015 Guernsey has data protection legislation