Peter Ferbrache

In an article published last year entitled Fair play in the workplace by Melanie Cavey[1], suggestions were made as to how Jersey should approach the reform of its employment legislation.  Readers may be interested to know how some of these problems have recently been addressed across the water in Guernsey.

The view that has always been taken in respect of industrial relations legislation in Guernsey can be summarised as follows, namely:

(1) only try to do that which is possible;

(2) do not follow what has happened in larger jurisdictions, particularly that of England and Wales;

(3) try to bring in legislation by consensus, ie. that which is likely to be acceptable to both employer and employee.

All this means, in common parlance, is that Guernsey has only sought to bring forward industrial relations and employment protection legislation which fits its own circumstances.

Guernsey, after all, cannot pretend to be anything other than a small island with a small work-force.  The number of the work-force has never exceeded 31,000 people.  Of that work-force approximately 13,600 are women.   Guernsey has in the last 20 years had high levels of employment compared with other places.  It also has taken the view that it is better to have something that is achievable and gives people proper and easy remedies rather than have something that is more an act of dogma or theory but in fact fails to achieve its true purpose. 

The law in the United Kingdom and in Guernsey has moved on from the days when a contract of employment was no more than simply another type of contract between, as it was then termed, “master and servant”.   In civilised societies it was realised that the bargaining position between employer and employee is not always equal.   For that and other reasons it was accepted that such relationships should be governed by special rules and principles.

In the United Kingdom this gave rise, particularly in the 1960’s and 1970’s, to a whole raft of industrial relations and employment protection legislation.  Much of it proved in practice unworkable and cumbersome and, if anything, was contrary to good employer/employee relations.  When the Board of Industry in Guernsey was going through the consultative process, which eventually gave rise to the birth of the Employment Protection (Guernsey) Law 1998, it sought advice from many quarters.  The consistent message (and this was emphasised particularly by United Kingdom practitioners and persons experienced in industrial relations law in that jurisdiction) was not to follow what they had done.  It was not appropriate, it was said, in Guernsey, and had not worked effectively in the UK in any event.

The first post-war statute in Guernsey was the Industrial Disputes and Conditions of Employment Law (Guernsey) 1947. This purported to deal with industrial disputes but failed in any material way to provide remedies for an individual who had been allegedly unfairly dismissed.  It failed also to deal with the question of constructive dismissal. 

The 1947 law was eventually replaced by the Industrial Disputes and Conditions of Employment (Guernsey) Law 1993. The 1993 law, admirable as it is, took the matters referred to in the previous paragraph no further and there was thus the perceived need for an understandable and accessible law dealing with unfair dismissal.

A history of Guernsey legislation also necessitates reference to the Conditions of Employment (Guernsey) Law 1985[2] as amended.  That law provided for employees who worked 15 hours per week or more to be issued with a written statement of the main terms and conditions of employment within four weeks of starting work.  Such a written statement must set out basic matters such as rate of pay, normal hours of work, holiday entitlement, sick pay, periods of notice and the like.

When the 1985 Law was first introduced it was a statute without any particular sanction.  Now, following an amendment enacted in 1996, a failure by the employer to provide a statement can lead to a criminal prosecution which, if proved, can give rise to a substantial fine.  The law imposes a duty of enforcement on the Board of Industry and, as a result, a failure by an employer to co-operate with the Board’s staff can lead to a prosecution and a fine and/or a custodial sentence.  Thankfully the Board of Industry has experienced few difficulties with employers who have generally discharged their duties satisfactorily under this law. 

The reason for reference to both this law and the 1993 law is to show how simple the Guernsey statutory framework of industrial relations legislation is.  The purpose of the Conditions of Employment (Guernsey) Law 1985 as amended has already been explained.  The 1993 law dealt with matters such as the functions of the industrial disputes officer, the definition of an “industrial dispute”, the attempts to try to settle such disputes by advice, by conciliation, by voluntary arbitration and ultimately by referring the dispute to an industrial tribunal.

However there remained two important omissions in Guernsey employment legislation, viz provision for minimum periods of notice and protection from unfair dismissal.   This led to the enactment of the Employment Protection (Guernsey) Law 1998 which came into force on January 4th, 1999.

The first part of the law deals with the minimum periods of notice and grants a statutory right to employees to be provided with a statement of reasons for dismissal[3].  The second, and perhaps more interesting, part of the law introduces statutory protection against unfair dismissal.  Every person who falls within the terms of the law has the right not to be unfairly dismissed by his or her employer[4].  There are certain exclusions from protection but they are limited and include matters such as where the person’s contract of employment is such that he ordinarily works outside Guernsey[5].

The law also covers “constructive dismissal”, ie. where the employee terminates his contract in circumstances which are such that he can do so by reason of the employer’s (bad) conduct[6].

If an employee has met the qualifying period then the onus in law is on the employer to show that there was a valid reason for the dismissal of the employee (except in the case of constructive dismissal).

To discharge that burden the employer has to show one of the following, namely:

(a) that the dismissal related to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do;

(b) that it related to the conduct of the employee;

(c) that the employee was redundant;

(d) that the employee could not continue to work in the position he held without contravening (either on his part or that of his employer) a duty or restriction imposed by or under the law of Guernsey, or

(e) that there was some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held[7].

Statutory definitions were given of the meaning of “capability” and “qualifications”[8].  Involvement in trade union membership or activities, and pregnancy,  were expressly declared to be unfair reasons for dismissing an employee[9].   In other words, a person must not lose his job because he is a member of a union and equally he cannot be forced to join a union because of a “closed shop”.

There is not in Guernsey at the present time statutory maternity leave imposed upon an employer.  Arrangements for maternity leave have developed through a process of evolution rather than statutory intervention.   The 1998 law makes it clear however that the dismissal of an employee by an employer shall be regarded as being unfair if the reason or principal reason:

(a) was that the employee was pregnant, or

(b) was any other reason connected with her pregnancy except:

(i) that at the effective date of the termination she was or would have become, because of her pregnancy, incapable of adequately doing the work which she was employed to do, or

(ii) that, because of her pregnancy, she could not do or would not have been able to continue after that date to do that work without contravention (either by her or her employer) of a duty or restriction imposed under the law of Guernsey[10].

This latter provision would include health and safety considerations.  The simple purpose of this part of the law is to prevent an employer dispensing with the services of his female employee simply because she is pregnant.

The case arises thus of an employer who employs a stand-in employee to cover the work of the employee who has gone off on maternity leave.   The employer is protected in connection with the stand-in or temporary employee from any claim of unfair dismissal on this ground, as long as he informs the employee in writing that the employment will be terminated on the resumption of work by the other employee who has been absent in whole or in part because of pregnancy or childbirth[11]. 

Other grounds for dismissal that are expressly declared as being unfair relate to the exercise of functions relating to health and safety[12], or the assertion by an employee of a statutory right[13], or, being made redundant for inadmissible reasons[14].

In summary, the law was intended to have very simple principles running through it.  If an employee qualifies by having been employed by his employer for two years, he has the protection of the law.  In certain cases, e.g. pregnancy, membership or non-membership of trade unions and the like, the two-year qualifying period does not apply.  The protection is then immediate. 

There are certain grounds expressly provided as being justifiable reasons for the employer terminating his employee’s contract.  The onus is however upon the employer to show that he had valid grounds for dismissing his employee.

The broad aim of the law can be expressed in the somewhat hackneyed adage “simplicity is beautiful”.   What the Board of Industry wanted to do was to provide employees in circumstances where they fell within the terms of the law with a simple and speedy remedy.  They did not want lawyers involved to any great degree,  for a variety of reasons:-

(a) expense;  there would be many cases where an employer could afford to employ a lawyer whereas an employee could not; 

(b) delay if a lawyer was employed;

(c) simplicity;  after all, as emphasised in this article, the whole idea of the proceedings was to give a quick, effective and speedy remedy.

Nevertheless, the Board was advised that lawyers could not be precluded from acting but as the whole purpose of the legislation was to make it as user-friendly as possible their involvement is not encouraged and to date has not been too prevalent.  The Board of Industry also concluded that a complaint of unfair dismissal should be dealt with by a single adjudicator rather than by a court or tribunal.

The law was registered in the Royal Court in August 1998.  It did not come into force until early January 1999 because during that intervening period the Board of Industry set up a panel of adjudicators.  These adjudicators underwent an extensive training programme.

The areas of training included:-

contracts of employment and constructive dismissal;

rules of natural justice;

ACAS Codes of Practice;

the test of “reasonableness”;

the conducting of hearings;

the writing of decisions and awards.

The adjudicators also attended tribunals in Southampton to see how those operated in practice.  The persons chosen as adjudicators had a wide range of  occupations and experience.   They included a former President of the Board of Industry, business men and women and persons experienced in trade union practices.  The general idea was to have sensible intelligent people with a broad experience of life who could deal with the disputes fairly and expeditiously.  The persons who are appointed to the adjudicators’ panel are publicly known, in that a list must be deposited at the Greffe for public inspection and published every January in La Gazette Officielle.

A complaint against an employer can be presented to the Board by anyone on the grounds that:

(a) he was unfairly dismissed, or

(b) the employer unreasonably failed to provide a written statement giving particulars of the reasons for his dismissal, or that the particulars given were inadequate or untrue[15].

The Board was also anxious that these disputes should not be allowed to get stale and thus a complaint must be made:

(a) within one month beginning with the effective date of termination, or

(b) within such further time as the Board may in its absolute discretion allow where it is satisfied that it was not reasonably practicable for the complaint to be made within one month[16].

“The effective date of termination” means, simply:

(a) (where the employment was terminated by notice) the date on which the notice expires;

(b) (where the contract of employment was terminated without notice) the date on which the termination takes effect;

(c) (in respect of an employee who is employed under a contract for a fixed term where that term expires without being renewed) the date on which that term  expires.

Once a complaint has been registered the Board must use its best endeavours to settle the complaint by giving advice and assistance or by conciliation.  The Board also must appoint an adjudicator to hear and determine the complaint if in the Board’s opinion the complaint cannot be settled by the giving of advice and assistance or by conciliation or in any event if the complaint is not settled within six weeks of being presented, unless the Board is of the opinion that conciliation or negotiations are in progress with a view to settlement[17]. 

The hearings to date before an adjudicator have been conducted with the minimum of formality.  The response from the parties concerned in connection with such complaints, the “professionals”, the trade unions and employers have been positive.  The hearings generally last no more than half a day.  It is felt that the system is working fairly and is achieving its purpose. 

At the time of the writing there have been 23 registered complaints:-

4 have since been conciliated successfully in that settlements have been reached as a result of the conciliation process;

3 have been withdrawn by the employee during conciliation;

10 hearings have been concluded;

there are thus 6 outstanding cases.

The first hearing related to a bus mechanic who successfully claimed that he had been unfairly dismissed.

Of the ten concluded hearings the adjudicators found in favour of the employee in six of them, in favour of the employer in three of them, and one settlement was achieved during the course of the hearing.   Of the six findings in favour of the employee four have related to conduct, one to capability and one to redundancy.  Of the three findings in favour of the employer one has related to conduct, one to redundancy and one to pregnancy.

There have been four awards in the bracket between £3,000 and £5,000 and two in the bracket between £5,000 and £10,000.   There has been one settlement above £10,000.

The adjudicator’s decision is legally binding.  The amount of an award for compensation for unfair dismissal is the equivalent of a sum equal to three months’ pay.  The award of three months’ pay is a fixed or specified award rather than a compensatory award based on the concept of damages.  The logic for this approach is that:-

(a) it is simpler for the adjudicator to administer;

(b) there is an element of fine against the employer as well as compensation for the employee;

(c) in the current situation of full employment, damages could be limited to as little as one day’s pay due to the employee suffering no loss of earnings.  In those circumstances the bad or offending employer would be able to emerge at no real cost to himself, and

(d) the contributory factor does not need to be explored by the adjudicator in relation to the questions of compensation, conduct and the like.

This figure can be varied by the States by ordinance.  If it is felt in due course that three months’ pay is inadequate and does not give a satisfactory remedy, the States  could increase this to such period of time as it deems proper.  The award of compensation for unfair dismissal is legally enforceable.  It is deemed to be a preferred debt under Guernsey’s preferred debts legislation.

If the employer has not met his obigation to provide a written statement giving particulars of the reasons for dismissal or if the reasons given are untrue or inadequate then the equivalent of two weeks or half a month’s pay can be awarded in that respect.  That does not, it is submitted, derogate from the power of the adjudicator to give three months’ pay for unfair dismissal.  The purpose of the two week or half-month award is to ensure that the employer gives an accurate statement of the reasons for terminating an employee’s employment regardless of whether or not that employment is terminated unfairly.  Such an award, i.e. for unfair dismissal, is in addition to any other right or remedies that the person may have.

The adjudicators clearly had to be given powers to be able to carry out their duties.  Thus they can award costs, summon witnesses, call for documents, administer oaths and also apply to the Royal Court for directions.  There is an appeal to the Royal Court, but only on a question of law.

In order to give effect to the law, subordinate legislation has been enacted.  This has included an Order dealing with recoverable costs.  Interestingly, it has been clearly stated in the law that no costs can be recovered by a party in connection with their legal expenses.   It must be emphasised again, that the purpose of the legislation is to make the hearing simple and without the complexity and expense associated with legislation in some other jurisdictions.

Under the law the Board can issue Codes of Practice containing practical guidance for both employers and/or employees, advising as to steps that ought to be taken to ensure that employers act reasonably.  The Board has already published such a Code of Practice.  It is a document which is entitled “Disciplinary practice and procedures in employment”.  The Board’s Industrial Relations Service has issued several advisory booklets  to inform employers and employees of their rights under the law and the procedures for dealing with complaints.

An extended role for the adjudicators in relation to sex discrimination and equal pay is envisaged in future. 

In April 1996 the States approved in principle a proposal to legislate on those issues.  It is hoped that the law will come into force in 2000.  It is intended that complaints in relation to sex discrimination  and equal pay will be dealt with under the same adjudication procedure as applies in relation to claims for unfair dismissal.

The law will require employers to implement non-discriminatory procedures in: 

(a) advertising;

(b) recruitment;

(c) promotion;

(d) dismissal.

As with unfair dismissal, in making its proposals to the States the Board engaged in extensive consultation.

One further amendment is in prospect.  In October 1999 the States approved the policies proposed by the Board to protect shop workers working on Sundays.  The Board’s proposals followed very much the provisions set out in the Employment Rights Act 1996, of the United Kingdom.  The effect of the States resolution will be to give all shop workers the following rights (except those employed to work only on Sundays), namely:

(a) the right not to be dismissed for refusing to work on Sundays;

(b) the right not to be selected for redundancy for refusing to work on Sundays, and,

(c) the right not to suffer any other detriment for refusing to work on Sundays, e.g. denial of overtime, promotion or training opportunities.

Shop workers who consider that their rights have been infringed will be able to make a complaint which will be dealt with by an adjudicator.  The likely result of the States resolution will be a proposal to amend the Employment Protection (Guernsey) Law 1998 to allow adjudicators to deal with these type of claims in the same manner as for unfair dismissal, except that the qualifying period will be different.  Thus, now that there is shown to be a simple statutory procedure for dealing with claims for unfair dismissal, it should not be too difficult to amend the law to deal with these other issues.

Guernsey therefore can say with a considerable degree of confidence that this experiment in connection with unfair dismissal legislation has worked.  The Island has enacted a law which is simple and which is particularly suitable for Guernsey.  The 1998 Law, together with the Conditions of Employment (Guernsey) Law 1985 and the Industrial Disputes and Conditions of Employment (Guernsey) Law 1993 give the Island a simple, fair and flexible framework for dealing with industrial disputes and employment protection matters.

Peter Ferbrache is an advocate of the Royal Court of Guernsey and is a partner of Ozannes, P.O. Box 186, 1, Le Marchant Street, St Peter Port, Guernsey.  He is also a Conseiller in the States of Guernsey.