Jersey Employment Law Seminar. Siobhan Riley

Transcription

1 Jersey Employment Law Seminar Presented by Siobhan Riley October 2010

2 Topics Key aspects of Jersey Employment Law Focus on Unfair Dismissal i Changes in the future

3 Overview of Existing Legislation Employment (Jersey) Law 2003 Came into force in July 2005 Introduced unfair dismissal rights Redundancy d legislation l tocome into force soon No legislation l on sex, race, disability or age discrimination No legislation on maternity/paternity leave or pay

4 Unfair Dismissal: eligibility Must work wholly or mainly in Jersey Under 65 years of age (or the company s normal retiring age) Basic contractualal hours more than 8 hours per week In general 26 weeks k continuous service required

5 Automatic unfair dismissal No requirement for 26 weeks continuous service if dismissal: relates to trade union membership or activities is on grounds of pregnancy or a reason connected with pregnancy is on grounds of assertion of a statutory right (such as enforcing right to receive minimum wage or right to be represented) is because the employee has been selected for redundancy for any of the above reasons

6 Rights of fixed term employees Fixed term employees qualify for unfair dismissali rights once two thirds of their contract has expired, subject to a 13 week minimum qualification period

7 Bringing a claim for unfair dismissal Three stage process: (1)Employee to show dismissal (2)Employer to show fair reason (3)Tribunal to determine fairness (or otherwise) of dismissal

8 Dismissal Employee to show either: actual dismissal (oral or writing); or constructive dismissal employee is justified in resigning as a result of employer s conduct No dismissal, i no award

9 Employer to show a fair reason There are five fair reasons: conduct capability redundancy statutory prohibition some other substantial reason No statutory reason, no defence

10 Tribunal to determine fairness (or otherwise) of dismissal Whether employer acted reasonably or unreasonably: depends on the circumstances, including the size and administrative resources of the employer equity and the substantial merits of the case band of reasonable responses test

11 Deadline for claims 8 weeks from effective date of termination OR within such further time as the Tribunal allows (where it was not reasonably practicable for the complaint to be presented within the time limit)

12 Unfair dismissal: Remedies and Costs Compensation Re-instatement / Re-engagement No award for legal costs is made save in very No award for legal costs is made save in very exceptional circumstances

13 Unfair dismissal: Remedies Compensation for unfair dismissal: Increases according to length of continuous service Scale of compensation up to 26 weeks pay once an employee has 5 years service or more One week s pay is calculated on the basis of an employee s basic salary: it does not include overtime or shift allowances. No upper limit to calculation of one week s pay Tribunal can award up to 10,000 for contractual claims on top of unfair dismissal compensation

14 Unfair dismissal: Remedies From 1 October 2009: Tribunal can reduce compensation for unfair dismissal by such amount as it considers just and equitable. Tribunal will consider various factors, including: Unreasonable refusal of an offer to give employee his/her job back C d t f th l b f di i l hi h Conduct of the employee before dismissal which contributed directly to the dismissal

15 Unfair dismissal: Remedies Re-employment: Reinstatement: employee to go back to same employer, same job Re-engagement: employee to go back to same employer but different job

16 Unfair dismissal: Remedies Re-instatement / Re-engagement - factors to be considered: Employee s wishes Whether it is practical from the employer s perspective p Whether it would be just to require an employer to re-employ the employee where an employee caused or contributed to the dismissal

17 Unfair dismissal: Re-instatement / Re-engagement What happens if an employer does not comply with the direction made?: if the employer does not comply with the direction in full compensationpayabletoemployeeofupto26 weeks pay if the employer does not reinstate/re-engage the employee: normal compensation for unfair dismissal PLUS an additional award of up to 26 weeks pay

18 Settlement of Claims Compromise agreements - employee agrees to waive statutory rights in return for a financial payment Employee must take advice from an independent adviser prior to signing a compromise agreement Jersey Advisory and Conciliation Service (JACS)

19 Changes in the future Redundancy legislation Removal of upper age limit for unfair dismissal (protection for pensioners) Reduction of statutory minimum notice periods in line with UK Discrimination law Maternity / family friendly rights

20 Statutory t t Redundancy d Pay (not yet in force) 2 years' continuous employment to be eligible One week's pay for every full year of service Calculation of weekly pay to be capped at the reported weekly average earnings (currently 630 per week) Collective consultation requirements in certain circumstances with trade union or elected employee representatives

21 Revised minimum i Notice Periods (yet to be introduced) Period of Service (years) Minimum Notice (weeks) Now Less than 26 weeks 1 1 Less than 2 years When law changes

22 Revised minimum i Notice Periods (yet to be introduced) Cont. Period of Service (years) Minimum Notice (weeks) Now Up to Over When law changes

23 Draft Discrimination (Jersey) Law Currently no anti-discrimination legislation Overarching law proposed with regulations outlawing each type of discrimination Anticipated order of introduction: race sex disability age (and possibly religion)

24 Discrimination: Proposed Remedies Complaints to be submitted to Discrimination Officer within 8 weeks Attempt conciliation and consultation via JACS Compensation per complaint: 10,000 maximum for hurt p p p and distress

25 Proposed Maternity/Family rights Proposals (initial stage): right to time off for essential antenatal appointments (no qualifying period) 2 weeks compulsory maternity leave (no qualification period, paid by employer) additional 6 weeks unpaid maternity leave (no qualification period) and where 15 months service, a further 10 weeks unpaid maternity leave (maximum entitlement of 18 weeks maternity leave) 2 weeks unpaid paternity leave for biological father and/or partner of child s mother to be taken within 8 weeks of the birth

26 Any questions?

27 Disclaimer This presentation is intended to provide only general information. It does not purport to be comprehensive or to render legal advice. Carey Olsen 2010