Employment (Amendment No. 10) (Jersey) Law 2016

A LAW to amend further the Employment (Jersey) Law 2003

Adopted by the States                                                   25th May 2016

Sanctioned by Order of Her Majesty in Council    12th October 2016

Registered by the Royal Court                                 21st October 2016

THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law –

1        Interpretation

In this Law, “Law” means the Employment (Jersey) Law 2003[1].

2        Article 7 amended

In Article 7(1) of the Law, for the words from “determine” to the end there shall be substituted the following –

“determine –

(a)     what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the Article concerned; and

(b)     whether any compensation should be paid by the employer to the employee (and if so, subject to Article 8(1)(b), the amount of such compensation) by reason of the employer’s failure to comply with such requirements.”.

3        Article 8 amended

In Article 8 of the Law –

(a)     in paragraph (1) for the words from “or 4,” to the end there shall be substituted the following –

“or 4 –

(a)     the employer shall be deemed to have given to the employee a statement in which those particulars were included, or referred to, as specified in the decision of the Tribunal; and

(b)     the Tribunal may order the employer to pay compensation to the employee of an amount not exceeding 4 weeks’ pay.”; and

(b)     after paragraph (2) there shall be added the following paragraph –

“(3)    The payment of a fine by the employer upon conviction for an offence under Article 9 shall be additional to, and shall not be taken as discharging, any liability of the employer to pay compensation under this Article.”.

4        Article 10 amended

In Article 10 of the Law –

(a)     in paragraph (2B) –

(i)      for the words “has taken a rest period which has been interrupted,” there shall be substituted the following sub-paragraphs –

“–

(a)     has been prevented by the employer, whether by the employer’s refusal or otherwise, from taking a rest period to which the employee is entitled under paragraph (1) or (2); or

(b)     has taken a rest period which has not been an uninterrupted rest period within the meaning given by paragraph (2A),”,

(ii)      for the words “rest day” in each place in which they occur there shall be substituted the words “rest period”, and

(iii)     for the words “was interrupted” there shall be substituted the words “was due to be taken or, as the case may be, was interrupted”;

(b)     after paragraph (2B) there shall be inserted the following paragraphs –

“(2C) Where the employer prevents the employee from exercising the entitlement conferred by paragraph (1) or (2) (whether by refusal or otherwise, and including by failing to compensate the employee in accordance with paragraph (2B)) the employee may present a complaint to the Tribunal that the employer has so acted.

(2D)   The Tribunal shall not consider a complaint under paragraph (2C) in a case where the employment to which the complaint relates has ceased unless an application requiring the reference to be made was made –

(a)     before the end of the period of 8 weeks beginning with the date on which the employment ceased; or

(b)     within such further period as the Tribunal considers reasonable, in a case where the Tribunal is satisfied that it was not reasonably practicable for the complaint to be made before the end of that period of 8 weeks.

(2E)   Where the Tribunal finds a complaint presented under paragraph (2C) to be well-founded, the Tribunal may order the employer to pay compensation to the employee of an amount not exceeding 4 weeks’ pay.”.

5        Article 31 amended

In Article 31(3)(c) of the Law –

(a)     for the words “or 5A” there shall be substituted the words “, 5A or 5B”;

(b)     at the end of clause (v) the word “or” shall be deleted; and

(c)     after clause (vi) there shall be added –

“or

(vii)    service as a reservist, as defined by Part 5B.”.

6        Article 53 amended

In Article 53(1) of the Law, for the words from “determine” to the end there shall be substituted the following –

“determine –

(a)     what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the Article concerned; and

(b)     whether any compensation should be paid by the employer to the employee (and if so, subject to Article 54(1A), the amount of such compensation) by reason of the employer’s failure to comply with such requirements.”.

7        Article 54 amended

In Article 54 of the Law –

(a)     after paragraph (1) there shall be substituted the following paragraph –

“(1A) Where the Tribunal makes a declaration that it finds in accordance with paragraph (1)(a) or (b), the Tribunal may further order the employer to pay compensation to the employee of an amount not exceeding 4 weeks’ pay.”; and

(b)     after paragraph (3) there shall be added the following paragraph –

“(4)    The payment of a fine by the employer upon conviction for an offence under Article 55 shall be additional to, and shall not be taken as discharging, any liability of the employer to pay compensation under this Article.”.

8        Article 57 amended

In Article 57 of the Law, for paragraph (1) there shall be substituted the following paragraph –

“(1)    Except so far as otherwise provided by –

(a)     the following provisions of this Article; or

(b)     any of Articles 55Z, 60B or 77G,

any week which does not count under paragraphs (2) or (3) shall break the continuity of the period of employment for the purposes of this Law.”.

9        Part 5B inserted

After Part 5A of the Law there shall be inserted the following Part –

“PART 5B

reservists’ rights

55U   Interpretation

(1)     For the purposes of this Part, ‘reservist’ means a person who is –

(a)     a member of one of the reserve forces; or

(b)     a person liable to be recalled for service under Part VII of the Reserve Forces Act 1996 of the United Kingdom; and

‘service’ means permanent service of a reservist pursuant to –

(a)     call out under Part IV, V or VI of that Act; or

(b)     recall on the authority of a recall order under Part VII of that Act.

(2)     In paragraph (1)(a), ‘reserve forces’ means the Royal Fleet Reserve, the Royal Naval Reserve, the Royal Marines Reserve, the Regular Reserve, the Army Reserve, the Royal Air Force Reserve or the Royal Auxiliary Air Force.

55V   Requirement to notify intention of returning to work

(1)     A reservist who intends to return to work following service shall give his or her former employer notice of that intention in accordance with paragraphs (2) and (3).

(2)     Notice under paragraph (1) shall –

(a)     be in writing;

(b)     be given by the reservist or by another person acting with the reservist’s authority;

(c)     subject to paragraph (4), be given during the period –

(i)      beginning with the end of the service, and

(ii)      ending with the third Monday after the end of the service; and

(d)     state the date, having regard to paragraph (3), on which the reservist will be available for work.

(3)     The date stated in the notice shall be no later than 21 days after the latest date on which notice may be given under paragraph (2)(c).

(4)     A notice given after the end of the period described in paragraph (2)(c) is not invalid if –

(a)     the person giving it was prevented from doing so within that period by sickness or other reasonable cause; and

(b)     it was given as soon as reasonably possible after the end of that period.

55W  Right to return and continuity of terms and conditions etc.

(1)     Subject to paragraphs (3) and (4), where notice is validly given under Article 55V the former employer shall take the reservist back into work at the first opportunity, on or after the date stated in that notice, at which it is reasonable and practicable for the former employer to do so.

(2)     If, owing to sickness or other reasonable cause, the reservist is not available for work until after the expiry of the 21 days’ period mentioned in Article 55V(3) –

(a)     his or her right to return to work shall not be invalidated by reason only of the expiry of that period; and

(b)     a further date, being as soon as reasonable after the expiry of that period, may be notified by the reservist as the date on which he or she will be available for work.

(3)     For the purposes of paragraph (1), an opportunity to take the reservist back into work shall not be taken to have arisen if the former employer makes work available to the reservist but –

(a)     the reservist has, or reasonably believes that he or she has, reasonable cause for not taking it; and

(b)     the reservist, or another person acting with the reservist’s authority, gives notice accordingly to the former employer –

(i)      in writing, and

(ii)      stating the facts on which the reservist relies as constituting the reasonable cause.

(4)     Nothing in this Article obliges the former employer to take a reservist back into work after 6 months have elapsed from the end of the reservist’s service.

(5)     A reservist’s right to return to work is a right to return to the job in which he or she was employed immediately before his or her service, or to an equivalent job.

(6)     The right conferred by paragraph (1) is a right to return –

(a)     with such seniority, pension rights and all other rights in relation to his or her job as the reservist would have had if he or she had not been absent on service; and

(b)     on terms and conditions no less favourable than those which would have applied if he or she had not been so absent.

55X   Complaints to Tribunal

(1)     A person may present a complaint to the Tribunal on any or all of the following grounds, namely that –

(a)     the former employer has failed to take the reservist back into employment either in accordance with Article 55W(1), or at all;

(b)     the former employer has failed to have regard to Article 55W(2) or (5) (in such a respect as is specified in the complaint).

(2)     No complaint may be made under this Article in respect of any matter which has been settled by agreement or withdrawn.

(3)     The Tribunal shall not consider a complaint under this Article unless it is presented –

(a)     before the end of the period of 8 weeks beginning with the relevant date; or

(b)     within such further period as the Tribunal considers reasonable, in a case where the Tribunal is satisfied that it was not reasonably practicable for the complaint to be made before the end of that period of 8 weeks.

(4)     For the purposes of paragraph (3) the ‘relevant date’ is the day immediately after the date stated in the notice given by the reservist under Article 55V.

(5)     The right to present a complaint under this Article is without prejudice to any other right conferred on an employee under this Law.

(6)     The States may amend this Article by Regulations.

55Y   Remedies for infringement of right under this Part

(1)     Where the Tribunal finds a complaint under Article 55X well-founded it shall make a declaration to that effect and may either –

(a)     make a direction for reinstatement, and in doing so may specify –

(i)      any rights and privileges (including seniority and pension rights) which must be restored to the complainant, and

(ii)      the date by which the former employer must comply with the direction;

(b)     make a direction for re-engagement, and in doing so may specify the terms on which the re-engagement is to take place, including –

(i)      the identity of the former employer, or a successor or associate (as defined by Article 79(7)) of the employer,

(ii)      the nature of the employment,

(iii)     the remuneration for the employment,

(iv)     any rights and privileges (including seniority and pension rights) which must be restored to the complainant upon reinstatement, and

(v)     the date by which the former employer (including the employer’s successor or associate) must comply with the direction; or

(c)     make an award of compensation to be paid by the former employer to the complainant, of such an amount as the Tribunal thinks just and equitable, having regard to all the circumstances, up to 26 weeks’ pay.

(2)     Where the Tribunal makes a direction under paragraph (1) and the former employer does not fully comply with the terms of such direction, then unless the former employer can satisfy the Tribunal that such compliance was not practicable, the Tribunal shall make an award of further compensation to be paid by the former employer to the complainant, of such an amount as the Tribunal thinks fit, up to 26 weeks’ pay.

(3)     For the purposes of paragraphs (1) and (2) a week’s pay shall be calculated in accordance with Schedule 1.

55Z   Continuity following return to work etc. under this Part

(1)     Where a reservist returns to work following –

(a)     the exercise of the right conferred by Article 55W; or

(b)     reinstatement or re-engagement pursuant to a direction given under Article 55Y,

his or her service shall not be taken to break the period of employment when computing its length for the purposes of this Law, but (subject to paragraph (2)) the length of the service shall not be counted in the computation.

(2)     The length of any service by an employee who has returned to work as described in paragraph (1) shall be counted in the computation, if and to the extent that a relevant agreement provides that the service should be so counted.”.

10      Article 60A amended

In Article 60A of the Law, the existing text shall be numbered as paragraph (1) and after it there shall be added the following paragraph –

“(2)    Remuneration paid to the employee under his or her contract of employment in respect of redundancy shall go towards discharging the employer’s liability under paragraph (1) to make a redundancy payment; and conversely any redundancy payment under that paragraph shall go towards discharging any liability of the employer to pay remuneration to the employee under his or her contract of employment in respect of redundancy.”.

11      Article 71 amended

In Article 71 of the Law –

(a)     in paragraph (2)(a) for the words “pregnancy or childbirth” there shall be substituted the words “pregnancy, childbirth or adoption, including but not limited to absence because of maternity leave (whether compulsory or ordinary, as defined in Article 55A(1)), adoption leave under Chapter 4 of Part 5A, or parental leave under Chapter 5 of that Part”; and

(b)     after paragraph (3) of the Law there shall be inserted the following paragraph –

“(3A) This Article also applies to an employee where –

(a)     on engaging the employee the employer informs him or her in writing that his or her employment will be terminated on the resumption of work by another employee who is, or will be, absent wholly because of service as a reservist within the meaning given by Part 5B; and

(b)     the employer dismisses the employee to make it possible to allow the resumption of work by the other employee.”.

12      Article 73 amended

In Article 73 of the Law –

(a)     after paragraph (2) there shall be inserted the following paragraph –

“(2A) Paragraph (1) shall not apply if the reason or principal reason for the dismissal is, or is connected with, the employee’s membership of a reserve force (as defined in Article 55U).”; and

(b)     paragraph (3) shall be deleted.

13      Article 85 substituted

For Article 85 of the Law there shall be substituted the following Article –

“85    Secretary of the Tribunal

(1)     The Judicial Greffier shall act as Secretary of the Tribunal.

(2)     The Judicial Greffier may delegate, wholly or partly, the function conferred by paragraph (1), to an officer of the Judicial Greffe.”.

14      Schedule 1 amended

In paragraph 5 of Schedule 1 to the Law, after sub-paragraph (e) there shall be inserted the following sub-paragraph –

“(ea)  in the case of a complaint to the Tribunal under Article 55X, the calculation date shall be the last day of work for the former employer before the first day of the reservist’s service;”.

15      Transitory saving for Article 73(3)

In relation to an employee employed immediately before the commencement of this Law under such a contract as described in Article 73(3) of the Law, that paragraph shall continue in effect for the duration of the contract, as though it were not repealed by Article 12(b).

16      Repeals

(1)     In the Employment (Amendment No. 5) (Jersey) Law 2010[2], Article 6 is repealed.

(2)     In the Employment (Amendment No. 6) (Jersey) Law 2012[3], Article 2 is repealed.

(3)     In the Employment (Amendment No. 7) (Jersey) Law 2012[4], Article 9 is repealed.

17      Citation and commencement

This Law may be cited as the Employment (Amendment No. 10) (Jersey) Law 2016 and shall come into force 7 days after it is registered, except that –

(a)     if registration takes place before 1st September 2016, Articles 12(b) and 15 shall not come into force until that date; and

(b)     Articles 2, 3, 4, 5, 6, 7, 8, 9, 11(b), 12(a) and 14 shall come into force on 1st April 2017.

dr. m. egan

Greffier of the States

 


 



[1]                                    chapter 05.255

[2]                                    L.9/2010

[3]                                    L.2/2012

[4]                                    L.3/2012


Page Last Updated: 02 Nov 2017