Employment (Jersey)
Law 2003
A LAW to amend and consolidate
enactments relating to employers’ obligations to specify terms of
employment, the payment of wages, and the notice required to terminate
contracts of employment; to provide for compulsory minimum periods of leave and
rest time for employees; to provide employees with rights not to be unfairly
dismissed and to be paid a minimum wage; and to repeal and replace enactments
for the establishment and jurisdiction of Tribunals to hear and determine employment
disputes; and for incidental and connected purposes.
Commencement
[see endnotes]
PART 1
GENERAL
1 Interpretation
and application
(1) In
this Law, unless the context otherwise requires –
“affected employee” for the purposes of Part 6A has
the meaning in Article 60F(13);
“civil proceedings”
means proceedings before the Tribunal or civil proceedings before any court;
“collective agreement” means an agreement that has been
settled by machinery of negotiation, mediation, conciliation or arbitration to
which the parties are –
(a) an employer, or an
organization of employers that is representative of a substantial proportion of
the employers engaged in the trade or industry concerned; and
(b) employees
who are representative of a substantial proportion of the employees engaged in
the trade or industry concerned;
“collective employment dispute”
means a collective employment dispute as defined in Article 5 of the Employment Relations (Jersey) Law 2007[1];
“Discrimination Law” means the Discrimination (Jersey)
Law 2013[2];
“effective date of termination” for the purposes of
Parts 6A and 7 has the meaning in Article 63;
“employment dispute”
means a dispute between an employer or employers and an employee or employees
in the employment of that employer or employers which is connected with the
terms of employment or with the conditions of labour of any of those employees
or with the rights or duties of an employer or an employee;
“Employment Forum” means the body that, under
Article 21, is to be regarded for the purposes of this Law as being the
Employment Forum;
“enforcement notice”
shall be construed in accordance with Article 27;
“fixed term contract of
employment” means a contract of employment which, according to its
terms, will expire on –
(a) the expiry of a
specified period of time;
(b) a specified date;
(c) the occurrence or
non-occurrence of a specified event; or
(d) the completion of a
specified task or project;
“individual employment dispute” means an
employment dispute that is not a collective employment dispute;
“JACS” means the
Jersey Advisory and Conciliation Service established by the Jersey Advisory and Conciliation (Jersey)
Law 2003[3];
“job”, in relation
to an employee, means the nature of the work which the employee is employed to
do in accordance with his or her contract of employment and the capacity in and
place at which he or she is so employed;
“lock-out”
means –
(a) the closing of a place
of employment;
(b) the suspension of work;
or
(c) the refusal by an
employer to continue to employ any number of persons he or she employs,
in consequence of a dispute, done with a view to compelling those
persons, or to aid another employer in compelling persons employed by that
employer, to accept terms or conditions of or affecting employment;
“minimum wage” shall
be construed in accordance with Article 16(3);
“Minister” means the Minister for Social Security;
“notice” means
notice in writing;
“officer acting for the purposes
of this Law” means an officer appointed under Article 96;
“pay reference period”
shall be construed in accordance with Article 16(4);
“penalty notice”
shall be construed in accordance with Article 29;
“person who qualifies for the
minimum wage” shall be construed in accordance with
Article 16(2) and related expressions shall be construed accordingly;
“prescribed” means
prescribed by the Minister by Order;
“relevant agreement”,
in relation to an employee, means any provision of a collective agreement which
forms part of a contract between the employee and his or her employer, or any
other agreement in writing which is legally enforceable as between the employee
and his or her employer;
“strike” means the
cessation of work by a body of persons employed acting in combination, or a
concerted refusal or a refusal under a common understanding of any number of
persons employed to continue to work for an employer in consequence of a
dispute, done as a means of compelling their employer or any person or body of
persons employed, or to aid other employees in compelling their employer or any
person or body of persons employed, to accept or not to accept terms or
conditions of or affecting employment;
“Tribunal” means the
Tribunal established by Article 81; and
“wages” means
remuneration or earnings, however designated or calculated, capable of being
expressed in terms of money and fixed by a relevant agreement or by or under an
enactment, which are payable by virtue of a contract of employment by an
employer to an employee for work done or to be done or for services rendered or
to be rendered but does not include pensions contributions paid by the employer
or any other ancillary non-monetary benefits.[4]
(2) This
paragraph shall apply in any case where an individual (the “agency
worker”) –
(a) is supplied by a person
(the “agent”) to do work for another (the “principal”)
under a contract or other arrangements made between the agent and the
principal; but
(b) is not, as respects
that work, an employee, because of the absence of a contract of employment
between the individual and the agent or the principal; and
(c) is not a party to a
contract under which he or she undertakes to do the work for another party to
the contract whose status is, by virtue of the contract, that of a client or
customer of any profession or business undertaking carried on by the
individual.
(3) In
a case where paragraph (2) applies, the other provisions of this Law shall
have effect as if there were a contract of employment for the doing of the work
by the agency worker made between the agency worker and –
(a) whichever of the agent
and the principal is directly responsible for paying the agency worker in
respect of the work; or
(b) if neither the agent
nor the principal is so responsible, whichever of them pays the agency worker
in respect of the work.
(4) A
reference in this Law to a person being remunerated for a pay reference period
is a reference to the person being remunerated by his or her employer in
respect of his or her work in that pay reference period.
(5) This
Law shall not apply to the employment of a person under which the
person’s work (of whatever description) relates to the employer’s
family household –
(a) where –
(i) the
employee resides in the family home of the employer for whom he or she works,
(ii) the employee is
not a member of that family, but is treated as such, in particular as regards
to the provision of accommodation and meals and the sharing of tasks and
leisure activities,
(iii) the employee is neither
liable to any deduction, nor to make any payment to the employer, or to any
other person, in respect of the provision of living accommodation or meals, and
(iv) had the work been done
by a member of the employer’s family, this Law would not apply because
the conditions in sub-paragraph (b) would be satisfied; or
(b) where –
(i) the
employee is a member of the employer’s family,
(ii) the employee
resides in the family home of the employer, and
(iii) the employee shares in
the tasks and activities of the family,
and the employee’s work is done in that context.
(6) This
Law shall not apply to the employment of a person under which the
person’s work (of whatever description) relates to the employer’s
family business where –
(a) the employee is a
member of the employer’s family;
(b) the employee resides in
the family home of the employer; and
(c) the employee
participates in the running of the family business,
and the work is done in that context.
(7) A
reference in this Law to doing work includes a reference to performing
services; and “work” and other related expressions shall be
construed accordingly.
(8) This
Law shall not apply to the employment of a person as an officer of the States
of Jersey Police Force.
1A “Employer”
and “employee”
(1) In
this Law –
(a) “employer” means a person who employs
another person; and
(b) “employee” means a person who is employed by
an employer.
(2) For
the purposes of paragraph (1), a person is employed by another person if
the first person works for the second person under a contract of service or
apprenticeship with the second person.
(3) For
the purposes of paragraph (1), a person is also employed by another person
if the first person enters into any other contract with the second person under
which –
(a) the
first person undertakes to do, or
to perform personally, work or services for the second
person; and
(b) the status of the second person is not
that of a client or customer of any profession or trade or business undertaking
that is carried on by the first person.
(4) It
is immaterial whether a contract to which paragraph (2) or
paragraph (3) refers is express or implied.
(5) If
the contract is express, it is immaterial whether it is oral or in writing.[5]
1B “Trade
union”
(1) In
this Law, “trade union” means an organization described in
paragraph (2) or in paragraph (3).
(2) An
organization is a trade union if –
(a) it consists wholly or mainly of employees of
one or more descriptions; and
(b) its principal purposes include the
regulation of relations between employees of that description or of those
descriptions and employers or employers’ associations.
(3) An
organization is also a trade union if it consists wholly or mainly
of –
(a) constituent or affiliated organizations that
fulfil the conditions in paragraph (2), or that themselves consist wholly
or mainly of constituent or affiliated organizations that fulfil those
conditions; or
(b) representatives of any such constituent or
affiliated organizations,
and its principal purposes include the regulation of relations
between employees and employers or between employees and employers’
associations, or the regulation of relations between its constituent or
affiliated organizations.
(4) It
is immaterial whether an organization described in paragraph (2) or in
paragraph (3) is temporary or permanent.[6]
1C “Employers’
association”
(1) In
this Law, “employers’ association”
means an organization that is described in paragraph (2) or in
paragraph (3).
(2) An organization is an employers’
association if –
(a) it consists wholly or mainly of employers or
individual owners of undertakings of one or more descriptions; and
(b) its principal purposes include the
regulation of relations between employers of that description or of those
descriptions and employees or trade unions.
(3) An organization is also an employers’
association if it consists wholly or mainly of –
(a) constituent or affiliated organizations that
fulfil the conditions in paragraph (a), or that themselves consist wholly
or mainly of constituent or affiliated organizations that fulfil those
conditions; or
(b) representatives of any such constituent or
affiliated organizations,
and its principal purposes
include the regulation of relations between employers and employees or between
employers and trade unions, or the regulation of relations between its
constituent or affiliated organizations.
(4) It is immaterial whether an organization described in paragraph (2)
or in paragraph (3) is temporary or permanent.[7]
2 Redundancy
(1) For
the purposes of this Law an employee who is dismissed shall be taken to be
dismissed by reason of redundancy if the dismissal is wholly or mainly
attributable to –
(a) the fact that his or
her employer has ceased or intends to cease –
(i) to
carry on the business for the purposes of which the employee was employed by
the employer, or
(ii) to carry on that
business in the place where the employee was so employed; or
(b) the fact that the
requirements of that business –
(i) for
employees to carry out work of a particular kind, or
(ii) for employees to
carry out work of a particular kind in the place where the employee was
employed by the employer,
have ceased or diminished or are expected to cease or diminish.
(2) For
the purposes of paragraph (1) the business of the employer together with
the business or businesses of his or her associated employers shall be treated
as one (unless either of the conditions specified in sub-paragraphs (a)
and (b) of that paragraph would be satisfied without so treating them).
(3) In
paragraph (1) “cease” and “diminish” mean cease
and diminish either permanently or temporarily and for whatever reason.
(4) In paragraph (1)
the reference to an employee who is dismissed shall be taken to refer to an
employee who is dismissed by his or her employer in accordance with
Article 62.[8]
2A Approval
of codes of practice[9]
(1) The
Minister may, subject to this Article, by Order approve any code of practice
for the purposes of this Law or the Discrimination Law.[10]
(2) Before
approving a code of practice, the Minister shall publish a notice in the Jersey
Gazette –
(a) stating
that a copy of the code of practice will be available for inspection during
normal working hours, free of charge, at a place specified in the notice;
(b) specifying
a period during which it will be available for inspection (being a reasonable
period of not less than 21 days, beginning after the notice is published);
and
(c) explaining
that anyone may make representations in writing to the Minister in respect of
the code of practice at any time before the expiry of the 7 days following
the period for inspection,
and the Minister shall make a copy of the code of practice available
accordingly for inspection.
(3) Before
approving the code of practice, the Minister shall also consult –
(a) the
Jersey Advisory and Conciliation Service;
(b) the
Employment Forum; and
(c) such
persons as the Minister considers will be affected, or representatives of such
persons.
(4) The
Minister shall not proceed to decide whether or not to approve the code of
practice until the time limit under paragraph (2) for making
representations has elapsed.
(5) In
deciding whether or not to approve the code of practice, the Minister shall
consider all representations made under this Article in respect of the
proposal.
(6) An
Order approving a code of practice shall not come into force before the expiry
of the period of 28 days commencing on the day on which it is laid before
the States.
2B Failure
to comply with approved code of practice[11]
(1) A
failure on the part of any person to observe any provision of an approved code
of practice issued under this Law or the Discrimination Law shall not of itself
render the person liable to any proceedings.[12]
(2) In
any proceedings before a court or before the Tribunal an approved code of
practice shall be admissible in evidence.
(3) If
it appears to the court or the Tribunal that any provision in the approved code
of practice is relevant to any question arising in the proceedings, the court
or the Tribunal shall take that provision into account in determining the
question.
PART 2
EMPLOYMENT PARTICULARS
3 Statement
of initial terms of employment
(1) Subject
to paragraph (6), not later than 4 weeks after an employee begins
employment, the employer shall give to the employee a written statement of the
terms of his or her employment.
(2) A
statement given under paragraph (1) shall be signed by the employer, or if
the employer is a body corporate or a partnership, by an officer or partner
authorized to sign such statements, and shall contain the following
particulars –
(a) the names of the
employer and employee;
(b) the date when the
employment began;
(c) the date on which the
employee’s period of continuous employment began (taking into account any
employment with a previous employer which, in accordance with Articles 57
and 58, counts towards that period);
(d) the scale or rate of
remuneration or the method of calculating remuneration;
(e) the day on which, and
the intervals at which, remuneration is paid (that is, weekly, monthly or other
specified intervals) and the method of payment;
(f) any terms and
conditions relating to hours of work (including any terms and conditions
relating to normal working hours);
(g) any terms and
conditions relating to –
(i) entitlement
to holidays, including public holidays, and holiday pay (the particulars given
being sufficient to enable the employee’s entitlement, including any entitlement
to accrued holiday pay on the termination of employment, to be precisely
calculated),
(ii) incapacity for
work due to sickness or injury, including any provision for sick pay,
(iii) pensions and pension
schemes,
(iv) maternity leave,
(v) redundancy, and
(vi) disciplinary and
grievance procedures;
(h) the length of notice
which the employee is obliged to give and entitled to receive to terminate his
or her contract of employment;
(i) where
the employment is not intended to be permanent –
(i) the
period for which it is expected to continue,
(ii) if it is for a
fixed term, the date when it is to end,
(iii) any event, the
occurrence or non-occurrence of which will terminate it, or
(iv) any task or project,
the completion of which will terminate it;
(j) the title of the
job which the employee is employed to do or a brief description of the work for
which he or she is employed;
(k) either the place of
work or, where the employee is required or permitted to work at various places,
an indication of that and of the address of the employer;
(l) any collective
agreements which directly affect the terms and conditions of the employment
including, where the employer is not a party, the persons by whom they were
made; and
(m) where the employee is
required to work outside Jersey for a continuous period of more than 4
weeks –
(i) the
period for which the employee is to work outside Jersey,
(ii) the currency in
which remuneration is to be paid while the employee is working outside Jersey,
(iii) any additional remuneration
payable to the employee, and any benefits to be provided to or in respect of
the employee, by reason of his or her being required to work outside Jersey,
and
(iv) any terms and
conditions relating to the employee’s return to Jersey.
(3) A
statement under paragraph (1) may refer the employee for particulars of
any of the matters specified in paragraph (2)(g) to the provisions of some
other document which the employee has reasonable opportunity of reading in the
course of his or her employment or which is made reasonably accessible to the
employee in some other way.
(4) A
statement under this Article may refer the employee for particulars of either
of the matters specified in paragraph (2)(h) to the law or to the
provisions of any collective agreement directly affecting the terms and
conditions of the employment which the employee has reasonable opportunity of
reading in the course of his or her employment or which is made reasonably
accessible to the employee in some other way.
(5) Paragraph (2)(g)(iii)
shall not apply to an employee of a body or authority if –
(a) the employee’s
pension rights depend on the terms of a pension scheme established under any
provision contained in or having effect under any enactment; and
(b) any such provision
requires the body or authority to give to a new employee information concerning
the employee’s pension rights or the determination of questions affecting
those rights.
(6) Where
after the beginning of an employee’s employment the employee is to begin
to work outside Jersey for a period of more than 4 weeks, the statement under
paragraph (1) shall be given to the employee not later than the time when
he or she leaves Jersey in order to begin so to work.
(7) A
statement under paragraph (1) shall be given to a person even if his or
her employment ends before the end of the period within which the statement is
required to be given.
4 Changes
in terms of employment
(1) If,
after the date on which a statement is given under Article 3, there is a
change in the matters, particulars of which are required by Article 3 to
be included or referred to in a statement under Article 3, the employer
shall give to the employee a written statement containing particulars of the
change.
(2) A
statement under this Article shall be given at the earliest opportunity and, in
any event, not later than –
(a) 4 weeks after the
change in question; or
(b) where that change
results from the employee being required to work outside Jersey for a period of
more than 4 weeks, the time when the employee leaves Jersey in order to begin
so to work, if that is earlier.
(3) A
statement under this Article may refer the employee for particulars of any of
the matters specified in Article 3(2)(g) to the provisions of some other
document which the employee has reasonable opportunity of reading in the course
of his or her employment or which is made reasonably accessible to the employee
in some other way.
(4) A
statement under this Article may refer the employee for particulars of either
of the matters specified in Article 3(2)(h) to the law or to the
provisions of any collective agreement directly affecting the terms and
conditions of the employment which the employee has reasonable opportunity of
reading in the course of his or her employment or which is made reasonably accessible
to the employee in some other way.
(5) If,
after an employer has given to an employee a written statement under
Article 3 –
(a) the name of the
employer is changed, without any change in the identity of the employer; or
(b) the identity of the employer
is changed in circumstances in which the continuity of the employee’s
period of employment is not broken,
and there is no change in the terms of employment (other than the
name of the employer) included or referred to in the statement, the employer,
immediately after the change of name or identity, shall give to the employee a
written statement notifying the employee of the change.
5 Power
to amend requirement of particulars
The States may by Regulations add to, amend or delete any of the
particulars required by Article 3(2) to be contained in a statement under
Article 3.
6 [13]
7 References
to the Tribunal
(1) Where
an employer does not give an employee a statement as required by Article 3
or 4 or where the statement the employer gives does not comply with what is
required, the employee may require a reference to be made to the Tribunal to 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.[14]
(2) Where –
(a) a statement purporting
to be a statement under Article 3 or 4 has been given to an employee; and
(b) a question arises as to
the particulars which ought to have been included or referred to in the
statement so as to comply with the requirements of this Part,
either the employer or the employee may require the question to be
referred to and determined by the Tribunal.
(3) The
Tribunal shall not consider a reference under this Article in a case where the
employment to which the reference 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 it is satisfied
that it was not reasonably practicable for the application to be made before
the end of that period of 8 weeks.
8 Determination
of references
(1) Where,
on a reference under Article 7(1), the Tribunal determines particulars as
being those which ought to have been included or referred to in a statement
given under Article 3 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.[15]
(2) On
determining a reference under Article 7(2) relating to a statement
purporting to be a statement under Article 3 or 4, the Tribunal
may –
(a) confirm the particulars
as included or referred to in the statement given by the employer;
(b) amend those
particulars; or
(c) substitute other
particulars for them,
as the Tribunal may determine to be appropriate; and the statement
shall be deemed to have been given by the employer to the employee in
accordance with the decision of the Tribunal.
(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.[16]
9 Offences
under this part
(1) A
person who, being an employer –
(a) fails to give to a
person he or she employs a written statement of the terms of the person’s
employment in accordance with Article 3; or
(b) where there is a change
in the matters included or referred to in a statement under Article 3,
fails to give a person he or she employs a written statement containing
particulars of the change in accordance with Article 4,
shall be guilty of an offence and liable to a fine of level 3
on the standard scale.[17]
(2) On
the issue of a summons, or on the arrest and charge of a person, in respect of
an offence under paragraph (1) the Centenier
responsible shall notify the Minister and the Tribunal in writing of the fact.[18]
(3) Where
notification under paragraph (2) has been received the Tribunal shall stay
any proceedings which may have been or may be started under Article 7
until the criminal proceedings have been concluded and the time available for
an appeal has expired.
PART 3
MINIMUM REST PERIODS AND ANNUAL LEAVE
10 Weekly rest
period
(1) Subject
to paragraph (2), an employee shall be entitled to an uninterrupted rest
period of not less than 24 hours in each 7-day period during which the
employee works for his or her employer.
(2) If
the employer and the employee so agree in a relevant agreement, an employee
shall be entitled to either –
(a) 2 uninterrupted rest
periods each of not less than 24 hours in each 14-day period during which
the employee works for his or her employer; or
(b) one uninterrupted rest
period of not less than 48 hours in each such 14-day period,
in place of the entitlement provided for in paragraph (1).[19]
(2A) For the
purposes of paragraphs (1) and (2), a rest period shall be an
uninterrupted rest period if the employer –
(a) does
not require the employee to be available to the employer for the purpose of
undertaking a work-related action; and
(b) does
not require the employee to attend the employer’s workplace or be at or
near that workplace.[20]
(2B) Where an
employee –
(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),
the employer shall compensate the employee by making available to
that employee an uninterrupted rest period within 14 days beginning on the
day that the employee’s rest period was due to be taken or, as the case
may be, was interrupted, in addition to any rest period to which the employee
would normally be entitled in that 14 day period.[21]
(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.[22]
(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.[23]
(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.[24]
(3) For
the purpose of paragraphs (1) and (2), a 7-day period or a 14-day period
shall be taken to begin –
(a) at such times on such
days as may be specified for the purposes of this Article in a relevant
agreement; or
(b) where there are no
provisions of a relevant agreement which apply, at the start of each week or
every other week.
(4) In
a case where, in accordance with paragraph (3), 14-day periods are to be
taken to begin at the start of every other week, the first such period
applicable in the case of a particular employee shall be taken to begin –
(a) if the employee’s
employment began on or before the 1st July 2005, on the 1st July 2005; or
(b) if the employee’s
employment begins after the 1st July 2005, at the start of the week in which
that employment begins.
(5) For
the purposes of paragraphs (3) and (4), a week starts at midnight between
Saturday and Sunday.
(6) The
States may amend this Article by Regulations.[25]
11 Entitlement to
annual leave
(1) Subject
to paragraphs (3) and (6), an employee shall be entitled in each leave
year –
(a) to a period of leave of
2 weeks or to such other period as may be specified in a relevant
agreement, whichever shall be the longer; and
(b) to leave –
(i) on Christmas Day,
Good Friday and all public or bank holidays under the Public Holidays and Bank Holidays (Jersey)
Law 1951[26], or
(ii) in
substitution for the leave to which the employee is entitled under
clause (i) on such days as the employee may in
his or her discretion decide or, where provided for in a relevant agreement, on
such days as may be so provided, which days shall not be less in total than the
total number of the days specified in clause (i)
in respect of the leave year in question on which the employee has been
required by his or her employer to work.
(2) An
employee’s leave year, for the purposes of this Article, shall
begin –
(a) on such date during the
calendar year as may be provided for in a relevant agreement; or
(b) where there are no
provisions of a relevant agreement which apply, on the date on which that
employment begins and each subsequent anniversary of that date.
(3) Where
the date on which an employee’s employment begins is later than the date
on which (by virtue of a relevant agreement) the employee’s first leave
year begins, the leave to which he or she is entitled in that leave year shall
be a proportion of the period applicable under paragraph (1)(a) equal to
the proportion of that leave year remaining on the date on which his or her
employment begins.
(4) Subject
to paragraph (5), where by virtue of paragraph (2)(b) or (3) the
period of leave to which an employee is entitled is or includes a proportion of
a week, the proportion shall be determined in days and any fraction of a day
shall be treated as a whole day.
(5) Paragraph (4)
shall apply only where the employee in question has been employed by that
employer for a period of 28 days or longer.
(6) The
States may by Regulations amend the period specified in paragraph (1)(a).
12 Dates
on which leave is taken
(1) The Minister may by
Order prescribe the period of notice to be given by and to employers in
relation to the taking of annual leave by employees in the event that such
matters are not included in a relevant agreement.
(2) Before the Minister may
make an Order under paragraph (1) the Minister shall consult the Employment
Forum and such other organisations as appear to the Minister to be
representative of employers and employees in Jersey.
13 Payment in
respect of periods of leave
(1) An
employee shall be entitled to be paid in respect of any period of leave to
which the employee is entitled under Article 11, at the rate of a
week’s pay in respect of each week of leave, reduced pro rata for shorter
periods of leave.
(2) Schedule 1
shall apply for the purpose of determining the amount of a week’s pay for
the purposes of this Article.
(3) A
right to payment under paragraph (1) shall not affect a right of an
employee to remuneration under his or her contract of employment.
(4) Remuneration
paid to an employee under his or her contract of employment in respect of a
period of leave shall go towards discharging any liability of the employer to
make payments to the employee under this Article in respect of that period;
and, conversely, payment of remuneration to an employee under this Article in
respect of a period goes towards discharging any liability of the employer to
pay remuneration to the employee under his or her contract of employment in
respect of that period.
14 Compensation
related to entitlement to leave
(1) This
Article shall apply where –
(a) an employee’s
employment is terminated during the course of his or her leave year; and
(b) on the date on which
the termination takes effect (the “termination date”), the
proportion the employee has taken of the leave to which he or she is entitled
in the leave year under Article 11(1) differs from the proportion of the
leave year which has expired.
(2) Where
the proportion of leave taken by the employee is less than the proportion of
the leave year which has expired, the employee’s employer shall make the
employee a payment in lieu of leave in accordance with paragraph (3).
(3) The
payment due under paragraph (2) shall be –
(a) where there are no
provisions of a relevant agreement which apply, a sum equal to the amount that
would be due to the employee under Article 13 in respect of a period of
leave determined according to the formula –
(A × B)
- C
where –
A is
the period of leave to which the employee is entitled under Article 11(1),
B is
the proportion of the employee’s leave year which expired before the
termination date, and
C is
the period of leave taken by the employee between the start of the leave year
and the termination date; or
(b) such sum as may be
specified in a relevant agreement,
whichever is the greater.
(4) Where
the proportion of leave taken by the employee exceeds the proportion of the
leave year which has expired, the employee shall compensate his or her employer
by a payment in respect of the excess leave taken in accordance with
paragraph (5).
(5) The
payment due under paragraph (4) shall be –
(a) where there are no
provisions of a relevant agreement which apply, a sum equal to the amount which
would be due to the employee under Article 13 in respect of a period of
leave determined according to the formula –
X - (Y
× Z)
where –
X is
the period of leave taken by the employee in the employee’s leave year in
question,
Y is
the period of leave to which the employee is entitled under Article 11(1),
and
Z is
the proportion of the employee’s leave year which expired before the
termination date; or
(b) such sum as may be
specified in a relevant agreement,
whichever is the less.
15 Entitlements
under other provisions
Where during any period an employee is entitled to a rest period or
annual leave both under a provision of this Part and under a separate provision
(including a provision of a relevant agreement) or another enactment, the
employee may not exercise the 2 rights separately, but may, in taking a rest
period or leave during that period, take advantage of whichever right is, in
any particular respect, the more favourable.
PART 3A[27]
FLEXIBLE WORKING
15A Entitlement to
request change in the terms and conditions of employment
(1) An
employee may apply to his or her employer for a change in his or her terms and
conditions of employment if the change relates to –
(a) the
hours the employee is required to work;
(b) the
times when the employee is required to work; or
(c) the
place where the employee is required to work. [28]
(2) An
application under this Article must –
(a) state
that it is such an application;
(b) specify
the change applied for and the date on which it is proposed the change should
become effective; and
(c)
(d) state
the reason for making the application. [29]
(3) [30]
(4) [31]
(5) An
employee may not make a further application under paragraph (1) where he
or she has made such an application in the previous 12 months.
(6) Where
an employee has any right, arising under the employee’s contract of
employment or otherwise, which corresponds to the entitlement conferred by
paragraph (1) to make an application for a change in his or her terms and
conditions of employment –
(a) the
employee may not exercise both the entitlement conferred by paragraph (1)
and the corresponding right, but may, in requesting any change to his or her
terms or conditions of employment, rely on whichever of the entitlement, or the
right, is the more favourable; and
(b) if
he or she relies, under sub-paragraph (a), upon such a corresponding right
as more favourable, the provisions relating to an application under this
Article shall apply, subject to such modifications as may be necessary, in
relation to that right as though the exercise of it were such an application.[32]
15B Employer’s
duties in relation to application under Article 15A
(1) Subject
to paragraphs (2) and (6), an employer to whom an application under
Article 15A is made –
(a) shall
hold a meeting, at a time convenient to the employer and employee, to discuss
the application with the employee within 28 days after the day on which
the application is made;
(b) may
agree the change in the terms or conditions applied for under Article 15A
or agree different terms and conditions of the employee’s employment to
those applied for; and
(c) shall
give the employee notice of his or her decision on the application within
6 weeks after the day on which the application is made.
(2) Paragraph (1)
does not apply where the employer agrees to the application and gives notice of
his or her decision to the employee within 28 days after the day on which
the application is made.
(3) Where
the employer’s decision is to agree to a change in the terms and
conditions of the employee’s employment, the notice shall specify the
agreed change and state the date on which the change is to take effect.
(4) Where
the employer’s decision is to refuse the application the notice
shall –
(a) state
which of the grounds for refusal specified in paragraph (5) are considered
by the employer to apply;
(b) contain
a sufficient explanation as to why those grounds apply in relation to the
application; and
(c) set
out the appeal procedure for which provision is made in Article 15C.
(5) An
employer may only refuse an application made under Article 15A if he or
she considers that any of the following grounds are satisfied –
(a) the
granting of the application would create a burden of additional costs;
(b) the
application would have a detrimental effect on the employer’s ability to
meet customer demand;
(c) the
employer would be unable to re-organize work among existing staff or recruit
additional staff;
(d) the
granting of the application would have a detrimental effect on the quality or
performance of the employer’s business;
(e) there
would be insufficient work for the employee to do during the periods the
employee proposes to work; or
(f) the
granting of the application would have a detrimental effect on the
employer’s planned staffing changes. [33]
(6) Where
the individual who would ordinarily consider an application is absent from work
on the day on which the application is made, the periods referred to in
paragraphs (1) and (2) shall not commence until the day on which the
individual returns to work, or 28 days after the day on which the
application is made, whichever is the sooner.
15C Appeal against
employer’s decision
(1) An
employee is entitled to appeal against his or her employer’s decision to
refuse an application under Article 15A, or the terms upon which the
employer has granted the application, by giving notice of appeal to the
employer within 14 days after the day on which notice of the decision is
given, setting out the grounds of appeal.
(2) Subject
to paragraphs (3) and (5), within 14 days after the employee’s
notice under paragraph (1) is given, the employer shall hold a meeting
with the employee, at a time convenient to the employer and employee and any
person representing the employee, to discuss the appeal.
(3) Paragraph (2)
does not apply where, within 14 days after the day on which notice under
paragraph (1) is given, the employer –
(a) upholds
the appeal; and
(b) notifies
the employee in writing of his or her decision, specifying any change in the
terms and conditions of the employee’s employment agreed to and stating
the date from which the change in the terms and conditions of the
employee’s employment is to take effect.
(4) Where
a meeting is held to discuss the appeal, the employer shall notify the employee
of his or her decision on the appeal within 14 days after the day of the
meeting.
(5) Where
the individual who would ordinarily consider the appeal is absent from work on
the day on which the notice of appeal is given, the period referred to in
paragraph (2) shall not commence until the day the individual returns to
work, or 28 days after the day on which the notice of appeal is given,
whichever is the sooner.
(6) The
rights conferred by Article 78A and 78B apply in respect of any meeting
held under paragraph (2) as they do in respect of disciplinary and
grievance hearings.
15D Applications,
notices and appeals under Part 3A
(1) Unless
the contrary is proved, an application under Article 15A is taken as
having been made on the day the application is received by the employer.
(2) An
employer and an employee may agree to an extension of any of the periods
referred to in this Part.
(3) Every
notice or agreement given under this Part shall be in writing.
15E Complaints to Tribunal
(1) An
employee who makes an application under Article 15A may present a
complaint to the Tribunal –
(a) that
his or her employer has failed in relation to the application to comply with
any requirement in Article 15B, 15C or 15D(3); or
(b) that
a decision by his or her employer to refuse the application was based on
incorrect facts.
(2) No
complaint under this Article may be made in respect of an application which has
been disposed of by agreement or withdrawn.
(3) In
the case of an application which has not been disposed of by agreement or
withdrawn, no complaint under this Article may be made unless or until the
employer –
(a) notifies
the employee of a decision under Article 15C(3)(b) to reject the
application on appeal; or
(b) breaches
any of the requirements of Articles 15B(1), 15C or 15D(3).
(4) The
Tribunal shall not consider a complaint under this Article unless the complaint
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 presented before the end of that period of 8 weeks.
(5) In
paragraph (4)(a), the reference to the relevant date is –
(a) in
the case of a complaint under paragraph (3)(a), to the date on which the
employee is notified of the decision on the appeal; and
(b) in
the case of a complaint under paragraph (3)(b), to the date on which the
breach concerned was committed.
15F Remedies
Where the Tribunal finds a complaint presented under
Article 15E well-founded it shall make a declaration to that effect and
may –
(a) make
an order for reconsideration of the application; and
(b) order
the employer to pay compensation to the employee of an amount not exceeding
4 weeks’ pay.
PART 4
MINIMUM WAGE
Entitlement to the minimum wage
16 Employees to be
paid at least the minimum wage
(1) A
person who qualifies for the minimum wage shall be remunerated by his or her
employer in respect of his or her work in any pay reference period at a rate
which is not less than the minimum wage.
(2) A
person qualifies for the minimum wage if he or she is an individual
who –
(a) is an employee;
(b) is working, or
ordinarily works, in Jersey or, subject to paragraph (5), in the
territorial waters of Jersey, under his or her contract; and
(c) has ceased to be of
compulsory school age.
(3) The
minimum wage shall be such hourly rate as may from time to time be prescribed.
(4) For
the purposes of this Law a “pay reference period” is such period as
may be prescribed for the purpose.
(5) Paragraphs
(1) to (4) are subject to the foregoing and following provisions of this Law.
(6) The
States may by Regulations amend the classes of person who qualify under paragraph (2)
for the minimum wage.
(7) No
provision shall be made under paragraph (6) which treats persons
differently in relation to –
(a) different areas of
Jersey;
(b) different sectors of
employment;
(c) undertakings of
different sizes;
(d) different occupations;
or
(e) different racial groups
or genders.
(8) In
paragraph (7) “racial groups” means a group of persons defined
by reference to colour, race, nationality, or ethnic or national origins.
Regulations relating to the minimum wage
17 Determination of
hourly rate of remuneration
(1) The
States may by Regulations make provision for determining what is the hourly
rate at which a person is to be regarded for the purposes of this Law as
remunerated by his or her employer in respect of his or her work in any pay
reference period.
(2) The
Regulations may make provision for determining the hourly rate in cases
where –
(a) the remuneration, to
the extent that it is at a periodic rate, is at a single rate;
(b) the remuneration is, in
whole or in part, at different rates applicable at different times or in
different circumstances;
(c) the remuneration is, in
whole or in part, otherwise than at a periodic rate or rates;
(d) the remuneration
consists, in whole or in part, of benefits in kind; or
(e) the employee is a
trainee.
(3) The
Regulations may make provision with respect to –
(a) circumstances in which,
times at which, or the time for which, a person is to be treated as, or as not,
working, and the extent to which a person is to be so treated;
(b) the treatment of
periods of paid or unpaid absence from, or lack of, work and of remuneration in
respect of such periods; and
(c) circumstances in which
a person is to be treated as a trainee for the purposes of
paragraph (2)(e).
(4) The
provision that may be made by virtue of paragraph (3)(a) includes
provision for or in connection with –
(a) treating a person as,
or as not, working for a maximum or minimum time, or for a proportion of the
time, in any period; and
(b) determining any matter
to which that paragraph relates by reference to the terms of an agreement.
(5) The
Regulations may make provision with respect to –
(a) what is to be treated
as, or as not, forming part of a person’s remuneration, and the extent to
which it is to be so treated;
(b) the valuation of
benefits in kind;
(c) the treatment of
deductions from earnings; and
(d) the treatment of any
charges or expenses which a person is required to bear.
(6) The
Regulations may make provision with respect to –
(a) the attribution to a
period, or the apportionment between 2 or more periods, of the whole or any
part of any remuneration or work, whether or not the remuneration is received
or the work is done within the period or periods in question;
(b) the aggregation of the
whole or any part of the remuneration for different periods; and
(c) the time at which
remuneration is to be treated as received or accruing.
(7) Paragraphs
(2) to (6) are without prejudice to the generality of paragraph (1).
(8) No
provision shall be made under this Article which treats the same circumstances
differently in relation to –
(a) different areas of
Jersey;
(b) different sectors of
employment;
(c) undertakings of
different sizes;
(d) persons of different
occupations; or
(e) persons of different racial groups or
gender.
(9) In paragraph (8)
“racial groups” means a group of persons defined by reference to
colour, race, nationality, or ethnic or national origins.
The Employment Forum
18 The first
Regulations and Orders: referral to the Employment Forum
(1) Before
the Minister makes an Order under Article 16(3) or (4) or the States make
Regulations under Article 16(6), or Article 17, the Minister shall
refer the matters specified in paragraph (2) to the Employment Forum for
their consideration.
(2) The
matters referred to in paragraph (1) are –
(a) what single hourly rate
should be prescribed under Article 16(3) as the minimum wage;
(b) what period or periods
should be prescribed under Article 16(4);
(c) what method or methods
should be used for determining under Article 17 the hourly rate at which a
person is to be regarded as remunerated for the purposes of this Law; and
(d) whether any, and if so
what, amendments should be made to the classes of person who qualify under
Article 16(2) for the minimum wage.
(3) Where
matters are referred to the Employment Forum under paragraph (1), the
Forum shall, after considering those matters, make a report to the Minister
which shall contain the Forum’s recommendations about each of those
matters.
(4) If,
following the report of the Employment Forum under paragraph (3), the
Minister decides –
(a) not to make an Order,
or not to recommend the States to make any Regulations, implementing the
Forum’s recommendations;
(b) to make an Order, or to
recommend the States to make Regulations, implementing only some of the
Forum’s recommendations;
(c) to make an Order under
Article 16(3) prescribing a single hourly rate which is different from the
rate recommended by the Forum;
(d) to make an Order, or to
recommend the States to make Regulations, which in some other respect differ
from the recommendations of the Forum; or
(e) to make an Order, or to
recommend the States to make Regulations, which do not relate to a
recommendation of the Forum,
the Minister shall lay a report before the States containing a statement
of the reasons for the decision.
(5) If
the Employment Forum fail to make their report under paragraph (3) within
the time allowed for doing so under Article 20, any power of the Minister
to make an Order or of the States to make Regulations under this Law shall be
exercisable as if paragraph (1) had not been enacted.
19 Referral of
matters to the Employment Forum at any time
(1) The
Minister may at any time refer to the Employment Forum such matters relating to
this Law as the Minister thinks fit.
(2) Where
matters are referred to the Employment Forum under paragraph (1), the
Forum shall, after considering those matters, make a report to the Minister
which shall contain the Forum’s recommendations about each of those
matters.
(3) If
on a referral under this Article –
(a) the Minister seeks the
opinion of the Employment Forum on a matter falling within Article 18(2);
(b) the Forum’s
report under paragraph (2) contains recommendations in relation to that
matter; and
(c) implementation of any
of those recommendations involves the exercise of any power to make Regulations
under Articles 16 to 19,
Article 18(4) shall apply in relation to the report, so far as
relating to the recommendations falling within sub-paragraph (c), as it
applies in relation to a report under Article 18(3).
(4) If
on a referral under this Article –
(a) the Minister seeks the
opinion of the Employment Forum on any matter falling within
Article 18(2); but
(b) the Forum fail to make
their report under paragraph (2) within the time allowed under
Article 20,
the States may make Regulations and the Minister may make Orders
under Articles 16 to 19 as if the opinion of the Forum had not been
sought in relation to that matter.
20 Referrals to, and
reports of, the Employment Forum: supplementary
(1) This
Article applies where matters are referred to the Employment Forum under
Article 18 or 19.
(2) The
Minister may by notice require the Employment Forum to make their report within
such time as may be specified in the notice.
(3) The
time allowed to the Employment Forum for making their report may be extended by
further notice given to them by the Minister.
(4) Before
arriving at the recommendations to be included in their report, the Employment
Forum shall consult –
(a) such organisations representative
of employers as they think fit;
(b) such organisations
representative of employees as they think fit; and
(c) if they think fit, any
other body or person.
(5) In
considering what recommendations to include in their report, the Employment
Forum –
(a) shall have regard to
the effect of this Law on the economy of Jersey as a whole and on
competitiveness; and
(b) shall take into account
any additional factors which the Minister specifies in referring the matters to
them.
(6) The
report of the Employment Forum shall –
(a) identify the members of
the Forum making the report;
(b) explain the procedures
adopted in respect of consultation, the taking of evidence and the receiving of
representations;
(c) set out the reasons for
their recommendations; and
(d) if the Minister has
specified any additional factor to be taken into account under
paragraph (5)(b), state that they have taken that factor into account in
making their recommendations.
(7) The
Minister shall –
(a) lay a copy of any
report of the Employment Forum before the States; and
(b) arrange for the report
to be published.
(8) In
this Article –
“recommendations” means the recommendations required to
be contained in a report under Article 18(3) or 19(2); and
“report” means the report which the Employment Forum are
required to make under Article 18(3) or 19(2) on the matters referred
to them as mentioned in paragraph (1).
21 The Employment
Forum
(1) Subject
to the following provisions of this Article, the body which is to be regarded
for the purposes of this Law as being the Employment Forum is the non-statutory
Employment Forum.
(2) In
this Law “the non-statutory Employment Forum” means the
unincorporated body of persons known as “the Employment Forum”
which was established by the Minister before the passing of this Law for the
purpose of making recommendations relating to the establishment, application
and operation of a minimum wage.
(3) The
referral by the Minister to the non-statutory Employment Forum at any time
before the coming into force of this Law of matters (however described)
corresponding to those specified in Article 18(2) shall be treated as the
referral required by Article 18(1) unless the Minister otherwise
determines.
(4) The
referral by the Minister to the non-statutory Employment Forum at any time
before or after the coming into force of this Law, but before the appointment
of the body mentioned in paragraph (9), of matters other than those
mentioned in paragraph (3) shall be treated as a referral under
Article 19(1) unless the Minister otherwise determines.
(5) The
report of the non-statutory Employment Forum (whether made before or after the
coming into force of this Law) to the Minister containing the Forum’s
recommendations about –
(a) the matters which are
to be treated by virtue of paragraph (3) as referred under
Article 18(1); or
(b) the matters which are
to be treated by virtue of paragraph (4) as referred under
Article 19(1),
shall be treated as the report of the Employment Forum under
Article 18(3) or 19(2) on the referral in question unless the
Minister, whether before or after the making of the report, makes a
determination under paragraph (3) or (4) in relation to the referral.
(6) If,
in the case of the matters described in paragraph (5)(a) or any particular
matters such as are described in paragraph (5)(b), the Minister has,
before the coming into force of this Law –
(a) requested the
non-statutory Employment Forum to make their report within a specified time; or
(b) having made such a
request, extended the time for making the report,
the request shall be treated as a requirement imposed under
Article 20(2) and any such extension shall be treated as an extension
under Article 20(3).
(7) Accordingly,
if –
(a) the Minister has not
made a determination under paragraph (3); and
(b) the non-statutory
Employment Forum fail to make the report required by Article 18(3) within
the time allowed under this Law,
Article 18(5) shall apply.
(8) The
non-statutory Employment Forum shall not be regarded as the body which is the
Employment Forum for the purposes of this Law in the case of any referral under
Article 18(1) or 19(1) which is made after –
(a) the non-statutory
Employment Forum have made their report under Article 18(3);
(b) the time allowed under
this Law to the non-statutory Employment Forum for making that report has
expired without the report having been made; or
(c) the Minister has made
the determination under paragraph (3).
(9) The
Minister may at any time appoint a body, to be known as the “Employment
Forum”, to discharge the functions conferred or imposed on the Employment
Forum under this Law.
(10) Schedule 2
shall have effect with respect to the constitution and proceedings of the body
appointed under paragraph (9).
(11) Where
the Minister exercises the power conferred by paragraph (9), the body
which is to be regarded for the purposes of this Law as being the Employment
Forum as respects the referral of any matter to the Employment Forum by the
Minister after the exercise of the power is the body appointed under that paragraph.
(12) If the
Minister makes the determination under paragraph (3), the power conferred
by paragraph (9) shall be exercised and the referral required by
Article 18(1) shall be made to the body appointed under
paragraph (9).
(13) If the
Minister makes a determination under paragraph (3) or (4) –
(a) notice of the
determination shall be given to the non-statutory Employment Forum; and
(b) a copy of the notice
shall be laid before the States.
(14) No
determination shall be made under paragraph (3) or (4) more than
12 months after the passing of this Law.
(15) A member
of the body appointed under paragraph (9) shall not be liable in damages
for anything done or omitted in the discharge or purported discharge of any
functions under this Law unless it is shown that the act or omission was in bad
faith.
Records
22 Duty of employers
to keep records
For the purposes of this Law, the Minister may by Order
prescribe –
(a) the
records which shall be kept by employers;
(b) the
form and manner in which records prescribed under sub-paragraph (a) shall
be kept; and
(c) the
period for which such records shall be kept.
23 Employee’s
right of access to records
(1) An
employee may, in accordance with the following provisions of this
Article –
(a) require his or her employer
to produce any relevant records; and
(b) inspect and examine
those records and copy any part of them.
(2) The
rights conferred by paragraph (1) shall be exercisable only if the
employee believes on reasonable grounds that he or she is or may be being, or
has or may have been, remunerated for any pay reference period by his or her
employer at a rate which is less than the minimum wage.
(3) The
rights conferred by paragraph (1) shall be exercisable only for the
purpose of establishing whether or not the employee is being, or has been,
remunerated for any pay reference period by his or her employer at a rate which
is less than the minimum wage.
(4) The
rights conferred by paragraph (1) shall be exercisable –
(a) by the employee alone;
or
(b) by the employee
accompanied by such other person as the employee may think fit.
(5) The
rights conferred by paragraph (1) shall be exercisable only if the
employee gives notice (a “production notice”) to his or her
employer requesting the production of any relevant records relating to such
period as may be described in the notice.
(6) If
the employee intends to exercise the right conferred by paragraph (4)(b),
the production notice shall contain a statement of that intention.
(7) Where
a production notice is given, the employer shall give the employee reasonable
notice of the place and time at which the relevant records will be produced.
(8) The
place at which the relevant records are produced shall be –
(a) the employee’s
place of work;
(b) any other place at
which it is reasonable, in all the circumstances, for the employee to attend to
inspect the relevant records; or
(c) such other place as may
be agreed between the employee and the employer.
(9) The
relevant records shall be produced –
(a) before the end of the
period of 14 days following the date of receipt of the production notice;
or
(b) at such later time as
may be agreed during that period between the employee and the employer.
(10) In this
Article –
“records” means records which the employee’s
employer is required to keep and, at the time of receipt of the production
notice, preserve in accordance with Article 22; and
“relevant records” means such parts of, or such extracts
from, any records as are relevant to establishing whether or not the employee
has, for any pay reference period to which the records relate, been remunerated
by the employer at a rate which is at least equal to the minimum wage.
24 Failure of
employer to allow access to records
(1) A
complaint may be lodged with the Tribunal by a
employee on the ground that the employer –
(a) failed to produce some
or all of the relevant records in accordance with Article 23(8) and (9);
or
(b) failed to allow the
employee to exercise some or all of the rights conferred by
Article 23(1)(b) or (4)(b).
(2) Where
the Tribunal finds a complaint under this Article well-founded, the
Tribunal –
(a) shall make a
declaration to that effect; and
(b) may make an award that
the employer pay to the employee a sum not exceeding 80 times the hourly
amount of the minimum wage (as in force when the award is made).
(3) The
Tribunal shall not consider a complaint under this Article unless it is lodged
with the Tribunal before the expiry of the period of 13 weeks
following –
(a) the end of the period
of 14 days mentioned in Article 23(9)(a); or
(b) in a case where a later
day was agreed under Article 23(9)(b), that later day.
(4) Where
the Tribunal is satisfied that it was not reasonably practicable for a
complaint under this Article to be lodged before the expiry of the period of
13 weeks mentioned in paragraph (3), the Tribunal may consider the
complaint if it is lodged within such further period as the Tribunal considers
reasonable.
(5) Expressions
used in this Article and in Article 23 have the same meaning in this Article
as they have in that Article.
25 Employer to
provide employee with minimum wage statement
(1) The
States may by Regulations make provision for the purpose of conferring on an
employee the right to be given by his or her employer, at or before the time at
which any payment of remuneration is made to the employee, a written statement.
(2) Regulations
made under paragraph (1) may make provision with respect to the contents
of any such statement and may, in particular, require it to
contain –
(a) specified information
relating to this Part or any Regulations made under it; or
(b) specified information
for the purpose of assisting the employee to determine whether he or she has
been remunerated at a rate at least equal to the minimum wage during the period
to which the payment of remuneration relates.
(3) Any
statement required to be given under this Article to an employee by his or her
employer may be included in the written itemised pay statement required to be
given to the employee by his or her employer under Article 51.
Enforcement
26 Non-compliance:
employee entitled to additional remuneration
(1) If
an employee who qualifies for the minimum wage is remunerated for any pay
reference period by his or her employer at a rate which is less than the
minimum wage, the employee shall be taken to be entitled under his or her
contract to be paid, as additional remuneration in respect of that period, the
amount described in paragraph (2).
(2) The
amount referred to in paragraph (1) is the difference between –
(a) the relevant
remuneration received by the employee for the pay reference period; and
(b) the relevant
remuneration which the employee would have received for that period had the
employee been remunerated by the employer at a rate equal to the minimum wage.
(3) In
paragraph (2) “relevant remuneration” means remuneration which
falls to be brought into account for the purposes of Regulations under
Article 17.
27 Power of officer
to issue enforcement notice
(1) If
an officer acting for the purposes of this Law is of the opinion that an
employee who qualifies for the minimum wage has not been remunerated for any
pay reference period by his or her employer at a rate at least equal to the
minimum wage, the officer may serve a notice (an “enforcement notice”)
on the employer requiring the employer to remunerate the employee for any such
pay reference periods ending on or after the date of the notice at a rate equal
to the minimum wage.
(2) An
enforcement notice may also require the employer to pay to the employee within
such time as may be specified in the notice the sum due to the employee under
Article 26 in respect of the employer’s previous failure to
remunerate the employee at a rate at least equal to the minimum wage.
(3) The
same enforcement notice may relate to more than one employee (and, where it
does so, may be so framed as to relate to employees specified in the notice or
to employees of a description so specified).
(4) A
person on whom an enforcement notice is served may appeal against the notice
before the end of the period of 4 weeks following the date of service of
the notice.
(5) An
appeal under paragraph (4) shall lie to the Tribunal.
(6) On
an appeal under paragraph (4), the Tribunal shall dismiss the appeal
unless it is established –
(a) that, in the case of
the employee or employees to whom the enforcement notice relates, the facts are
such that an officer who was aware of them would have had no reason to serve
any enforcement notice on the appellant;
(b) where the enforcement
notice relates to 2 or more employees, that the facts are such that an officer
who was aware of them would have had no reason to include some of the employees
in any enforcement notice served on the appellant; or
(c) where the enforcement
notice imposes a requirement under paragraph (2) in relation to an
employee –
(i) that
no sum was due to the employee under Article 26, or
(ii) that the amount
specified in the notice as the sum due to the employee under Article 26 is
incorrect,
and in this paragraph any reference to an employee includes a
reference to a person whom the enforcement notice purports to treat as an
employee.
(7) Where
an appeal is allowed by virtue of paragraph (6)(a), the Tribunal shall
rescind the enforcement notice.
(8) If,
in a case where paragraph (7) does not apply, an appeal is allowed by
virtue of paragraph (6)(b) or (c) –
(a) the Tribunal shall
rectify the enforcement notice; and
(b) the enforcement notice
shall have effect as if it had originally been served as so rectified.
(9) The
powers of the Tribunal in allowing an appeal in a case where paragraph (8)
applies shall include power to rectify, as the Tribunal may consider
appropriate in consequence of its decision on the appeal, any penalty notice
which has been served under Article 29 in respect of the enforcement
notice.
(10) Where a
penalty notice is rectified under paragraph (9), it shall have effect as
if it had originally been served as so rectified.
28 Non-compliance:
power of officer to sue on behalf of employee
(1) If
an enforcement notice is not complied with in whole or in part, an officer
acting for the purposes of this Law may, on behalf of any employee to whom the
notice relates, and on receipt of a written request to do so, commence other
civil proceedings for the recovery, on a claim in contract, of any sums due to
the employee by virtue of Article 26.
(2) The
powers conferred by paragraph (1) for the recovery of sums due from an
employer to a employee shall not be in derogation of
any right which the employee may have to recover such sums by civil
proceedings, but in the event of the employee taking such proceedings the
officer shall immediately discontinue any proceedings taken by the officer on
behalf of the employee under paragraph (1).
29 Financial penalty
for non-compliance
(1) If
an officer acting for the purposes of this Law is satisfied that a person on
whom an enforcement notice has been served has failed, in whole or in part, to
comply with the notice, the officer may serve on that person a notice (a
“penalty notice”) requiring the person to pay a financial penalty
to the Minister.
(2) A
penalty notice shall state –
(a) the amount of the
financial penalty;
(b) the time within which
the financial penalty is to be paid (which shall not be less than 4 weeks
from the date of service of the notice);
(c) the period to which the
financial penalty relates;
(d) the matters which
appear to the officer to constitute the non-compliance with the enforcement
notice; and
(e) the calculation of the
amount of the financial penalty.
(3) The
amount of the financial penalty shall be calculated at a rate equal to twice
the minimum wage in force at the date of the penalty notice, in respect of each
employee to whom the failure to comply relates, for each day during which the
failure to comply has continued in respect of the employee.
(4) The
States may by Regulations from time to time amend the multiplier for the time
being specified in paragraph (3) in relation to the minimum wage.
(5) A
financial penalty under this Article shall be recoverable by action before the
court by an officer acting for the purposes of this Law.
(6) Where
a person has appealed under Article 27(4) against an enforcement notice
and the appeal has not been withdrawn or finally determined, then,
notwithstanding the appeal –
(a) the enforcement notice
shall have effect; and
(b) an officer may serve a
penalty notice in respect of the enforcement notice.
(7) If,
in a case falling within paragraph (6), an officer serves a penalty notice
in respect of the enforcement notice, the penalty notice –
(a) shall not be
enforceable until the appeal has been withdrawn or finally determined; and
(b) shall be of no effect
if the enforcement notice is rescinded as a result of the appeal; but
(c) subject to
sub-paragraph (b) and Article 30(4) and (6)(a), as from the
withdrawal or final determination of the appeal shall be enforceable as if
sub-paragraph (a) had not had effect.
(8) Any
sums received by the Minister by virtue of this Article shall be paid into the
annual income of the States.
(9) In
this Article “court” means either the Royal Court or the Petty
Debts Court.
30 Appeals against
penalty notices
(1) A
person on whom a penalty notice is served may appeal against the notice before
the end of the period of 4 weeks following the date of service of the
notice.
(2) An
appeal under paragraph (1) shall lie to the Tribunal.
(3) On
an appeal under paragraph (1), the Tribunal shall dismiss the appeal
unless it is shown –
(a) that, in the case of
each of the allegations of failure to comply with the enforcement notice, the
facts are such that an officer who was aware of them would have had no reason
to serve any penalty notice on the appellant;
(b) that the penalty notice
is incorrect in some of the particulars which affect the amount of the
financial penalty; or
(c) that the calculation of
the amount of the financial penalty is incorrect,
and for the purposes of any appeal relating to a penalty notice, the
enforcement notice in question shall (subject to rescission or rectification on
any appeal brought under Article 27) be taken to be correct.
(4) Where
an appeal is allowed by virtue of paragraph (3)(a), the Tribunal shall
rescind the penalty notice.
(5) If,
in a case where paragraph (4) does not apply, an appeal is allowed by
virtue of paragraph (3)(b) or (c) –
(a) the Tribunal shall
rectify the penalty notice; and
(b) the penalty notice
shall have effect as if it had originally been served as so rectified.
(6) Where
a person has appealed under paragraph (1) against a penalty notice and the
appeal has not been withdrawn or finally determined, the penalty
notice –
(a) shall not be
enforceable until the appeal has been withdrawn or finally determined; but
(b) subject to
paragraph (4) and Article 29(7)(a) and (b), as from the withdrawal or
final determination of the appeal shall be enforceable as if
sub-paragraph (a) had not had effect.
Rights not to suffer detriment
31 The right not to
suffer detriment
(1) An
employee shall have the right not to be subjected to any detriment by any act,
or any deliberate failure to act, by his or her employer, done on the ground
that –
(a) any action was taken,
or was proposed to be taken, by or on behalf of the employee with a view to
enforcing, or otherwise securing the benefit of, a right of the
employee’s to which this Article applies;
(b) the employer was
prosecuted for an offence under Article 35 as a result of action taken by
or on behalf of the employee for the purpose of enforcing, or otherwise
securing the benefit of, a right of the employee’s to which this Article
applies; or
(c) the employee qualifies,
or will or might qualify, for the minimum wage or for a particular rate of
minimum wage.
(2) It
shall be immaterial for the purposes of paragraph (1)(a) or
(b) –
(a) whether or not the
employee has the right; or
(b) whether or not the
right has been infringed,
but, for that paragraph to apply, the claim to the right and, if
applicable, the claim that it has been infringed shall be made in good faith.
(3) This
Article shall apply to –
(a) any right conferred by,
or by virtue of, any provision of this Law for which the remedy for its
infringement is by way of a complaint to the Tribunal;
(b) any right conferred by
Article 26;
(c) any
right conferred under Part 3A, 5A or 5B, and in particular any right
connected with –
(i) the
pregnancy of the employee,
(ii) the birth or
adoption of a child,
(iii) a change in the hours,
times or place of work, or an application to make such a change, under Part 3A,
(iv) the taking of time off,
or the seeking of time off, under Chapter 2, 3, 4 or 5 of Part 5A,
(v) the employee not
carrying out work for her employer during her maternity leave period or during
his or her adoption leave period, or making contact with his or her employer
during such period,
(vi) the employee seeking to
take or avail himself or herself of any of the benefits of maternity leave,
adoption leave or parental leave or the terms of his or her employment
preserved under Part 5A, or
(vii) service as a reservist, as
defined by Part 5B.[34]
(4) This
Article shall not apply where the detriment in question amounts to dismissal.[35]
32 Enforcement of
the right
(1) An
employee may lodge a complaint to the Tribunal that the employee has been
subjected to a detriment in contravention of Article 31.
(2) On
such a complaint it is for the employer to show the ground on which any act, or
deliberate failure to act, was done.
(3) The
Tribunal shall not consider a complaint under this Article unless it is
lodged –
(a) before the end of the
period of 8 weeks beginning with the date of the act or failure to act to
which the complaint relates or, where that act or failure is part of a series
of similar acts or failures, the last of them; or
(b) within such further
period as the Tribunal considers reasonable in a case where it is satisfied that
it was not reasonably practicable for the complaint to be lodged before the end
of that period of 8 weeks.
(4) For
the purposes of paragraph (3) –
(a) where an act extends
over a period, the “date of the act” means the last day of that
period; and
(b) a deliberate failure to
act shall be treated as done when it was decided on,
and, in the absence of evidence establishing the contrary, an
employer shall be taken to decide on a failure to act when the employer does an
act inconsistent with doing the failed act or, if the employer has done no such
inconsistent act, when the period expires within which he or she might
reasonably have been expected to do the failed act if it was to be done.
33 Remedies
(1) Where
the Tribunal finds well-founded a complaint under Article 32 of a
detriment, the Tribunal –
(a) shall make a
declaration to that effect; and
(b) may make an award of
compensation to be paid by the employer to the complainant of an amount not exceeding 4 weeks’ pay, or such amount
as may be prescribed, in respect of the act
or failure to act to which the complaint relates.[36]
(2) The
amount of the compensation awarded shall, subject to paragraph (6), be
such as the Tribunal considers just and equitable in all the circumstances
having regard to –
(a) the infringement to
which the complaint relates; and
(b) any loss which is
attributable to the act, or failure to act, which infringed the
complainant’s right.
(3) The
loss referred to in paragraph (2)(b) shall be taken to
include –
(a) any expenses reasonably
incurred by the complainant in consequence of the act, or failure to act, to
which the complaint relates; and
(b) loss of any benefit
which the complainant might reasonably be expected to have had but for that act
or failure to act.
(4) In
ascertaining the loss referred to in paragraph (2)(b) the Tribunal shall
apply the same rule concerning the duty of a person to mitigate his or her loss
as applies to damages recoverable under the customary law.
(5) Where
the Tribunal finds that the act, or failure to act, to which the complaint
relates was to any extent caused or contributed to by action of the
complainant, it shall reduce the amount of the compensation by such proportion
as it considers just and equitable having regard to that finding.
(6) An
award of compensation under this Article shall not exceed such figure as may be
prescribed.
34 Burden of proof
(1) Where,
in civil proceedings, any question arises as to whether an individual qualifies
or qualified at any time for the minimum wage, it shall be presumed that the
individual qualifies or, as the case may be, qualified at that time for the
minimum wage unless the contrary is established.
(2) Where,
in civil proceedings, a person seeks to recover on a claim in contract the
amount described as additional remuneration in Article 26(1), it shall be
presumed for the purposes of the proceedings, so far as relating to that
amount, that the employee in question was remunerated at a rate less than the
minimum wage unless the contrary is established.
Offences
35 Offences
(1) If
the employer of an employee who qualifies for the minimum wage refuses or
wilfully neglects to remunerate the employee for any pay reference period at a
rate which is at least equal to the minimum wage, that employer shall be guilty
of an offence.
(2) If
a person who is required to keep or preserve any record in accordance with
Orders under Article 22 fails to do so, that person shall be guilty of an
offence.
(3) If
a person makes, or knowingly causes or allows to be made, in a record required
to be kept in accordance with Orders under Article 22 any entry which that
person knows to be false in a material particular, that person shall be guilty
of an offence.
(4) If
a person, for purposes connected with the provisions of this Part, produces or
furnishes, or knowingly causes or allows to be produced or furnished, any
record or information which that person knows to be false in a material
particular, that person shall be guilty of an offence.
(5) Where
the commission by any person of an offence under paragraph (1) or (2) is
due to the act or default of some other person, that other person shall also be
guilty of the offence.
(6) A
person who aids, abets, counsels or procures the commission of an offence under
this Part shall also be guilty of the offence and liable in the same manner as
a principal offender to the penalty provided for that offence.
(7) A
person may be charged with and convicted of an offence by virtue of
paragraph (5) whether or not proceedings are taken against any other
person.
(8) In
any proceedings for an offence under paragraph (2) it shall be a defence
for the person charged to prove that he or she exercised all due diligence and
took all reasonable precautions to secure that he or she, and any person under
his or her control, complied with the provisions of this Part, and of any
relevant Regulations and Orders made under it.
(9) A
person guilty of an offence under paragraph (1) or (2) shall be liable to
a fine of level 3 on the standard scale.[37]
(10) A person
guilty of an offence under paragraph (3) or (4) shall be liable to
imprisonment for a term of 12 months and to a fine.
Special classes of person
36 [38]
37 Mariners
For the purposes of this Part, an individual employed to work on
board a merchant ship registered in Jersey shall be treated as an individual
who under his or her contract ordinarily works in Jersey unless –
(a) the
employment is wholly outside Jersey; or
(b) the
person is not ordinarily resident in Jersey,
and related expressions shall be construed accordingly.
Extensions
38 Power to apply
Part 4 to individuals who are not otherwise “employees”
The States may by Regulations make provision for this Part to apply,
with or without modifications, as if –
(a) any
individual of a specified description who would not otherwise be an employee
for the purposes of this Part were an employee for those purposes;
(b) there
were in the case of any such individual a contract of employment of a specified
description under which the individual works; and
(c) a
person of a specified description were the employer under that contract.
Exclusions
39 Share fishermen
A person –
(a) employed
as master, or as a member of the crew, of a fishing vessel; and
(b) remunerated,
in respect of that employment, only by a share in the profits or gross earnings
of the vessel,
shall not qualify for the minimum wage in respect of that
employment.
40 Employees of
charities, etc.
(1) An
employee employed by a charity, a voluntary organisation, an associated
fund-raising body or a statutory body shall only qualify for the minimum wage
in respect of that employment if the employee receives, or under the terms of
his or her employment (apart from this Part) is entitled to –
(a) any monetary payments
other than amounts payable in respect of expenses –
(i) actually
incurred in the performance of his or her duties, or
(ii) reasonably
estimated as likely to be or to have been so incurred; or
(b) any benefits in kind
other than the provision of some or all of his or her subsistence or of such
accommodation as is reasonable in the circumstances of the employment.
(2) A
person who would satisfy the conditions in paragraph (1) but for receiving
monetary payments made solely for the purpose of providing the person with
means of subsistence shall be taken to satisfy those conditions if –
(a) the person is employed
to do the work in question as a result of arrangements made between a charity
acting in pursuance of its charitable purposes and the body for which the work
is done; and
(b) the work is done for a
charity, a voluntary organisation, an associated fund-raising body or a
statutory body.
(3) For
the purposes of paragraph (1)(b) –
(a) any training (other
than that which a person necessarily acquires in the course of doing his or her
work) shall be taken to be a benefit in kind; but
(b) there shall be left out
of account any training provided for the sole or main purpose of improving the
employee’s ability to perform the work which he or she has agreed to do.
(4) In
this Article –
“associated fund-raising body” means a body of persons
the profits of which are applied wholly for the purposes of a charity or
voluntary organisation;
“charity” means a body of persons, or the trustees of a
trust, established for charitable purposes only;
“receive”, in relation to a monetary payment or a
benefit in kind, means receive in respect of, or otherwise in connection with,
the employment in question (whether or not under the terms of the employment);
“statutory body” means a body established by or under an
enactment;
“subsistence” means such subsistence as is reasonable in
the circumstances of the employment in question, and does not include
accommodation; and
“voluntary organisation” means a body of persons, or the
trustees of a trust, which is established only for charitable purposes (whether
or not those purposes are charitable within the meaning of any rule of law),
benevolent purposes or philanthropic purposes, but which is not a charity.
41 Prisoners
(1) A
prisoner shall not qualify for the minimum wage in respect of any work which
the prisoner does in pursuance of prison rules except work which is undertaken
outside the prison as part of a programme of rehabilitation.
(2) In
this Article –
“prisoner” means a person detained in, or on temporary
release from, a prison;
“prison” includes any other institution to which prison
rules apply; and
“prison rules” means rules made under Article 29 of
the Prison (Jersey) Law 1957[39].
42 Religious and
other communities: resident employees
(1) A
residential member of a community to which this Article applies shall not
qualify for the minimum wage in respect of employment by the community.
(2) Subject
to paragraph (3), this Article shall apply to a community if –
(a) it is a charity or is
established by a charity;
(b) a purpose of the
community is to practise or advance a belief of a religious or similar nature;
and
(c) all or some of its
members live together for that purpose.
(3) This
Article shall not apply to a community which –
(a) is a non-provided
school; or
(b) provides a course of
higher or vocational education.
(4) In
this Article –
(a) “charity”
has the same meaning as in Article 40; and
(b) “non-provided
school”, “higher education” and “vocational
education” have the same meaning as in Article 1 of the Education (Jersey) Law 1999[40].
Miscellaneous
43 Application of
Part 4 to superior employers
Where –
(a) the
immediate employer of an employee is personally in the employment of some other
person; and
(b) the
employee is employed on the premises of that other person,
that other person shall be deemed for the purposes of this Part to
be the employer of the employee jointly with the immediate employer.
PART 5
PAYMENT OF WAGES
44 Wages to be paid
in legal tender
Subject to Article 45 wages shall be paid to an
employee –
(a) in
legal tender;
(b) by
payment into an account at a bank, being –
(i) an
account standing in the name of the person to whom the wages are due, or
(ii) an
account standing in the name of that person jointly with one or more other
persons, or
(iii) at
the express and unsolicited request of the employee, and with written
authority, signed by the employee, an account in the name of a third party who
shall not be directly or indirectly associated or connected with the employer;
(c) by
payment by postal order;
(d) by
payment by money order; or
(e) by
payment by cheque,
and, subject to the preceding provisions of this Article, shall not
be paid in the form of promissory notes, vouchers or coupons or in any other
form alleged to represent legal tender.
45 Partial payment
of wages in kind
(1) Subject
to the provisions of this Article, nothing in this Part shall prohibit the
authorization under a relevant agreement or under any enactment, of the partial
payment of wages in the form of allowances in kind in any industry or
occupation in which payment in the form of such allowances is customary or
desirable because of the nature of the industry or occupation concerned.
(2) The
partial payment of wages in the form of allowances in kind shall not be lawful
unless –
(a) such allowances are
appropriate for the personal use and benefit of the employee and the
employee’s family; and
(b) the value attributed to
such allowances is fair and reasonable.
46 Wages to be paid
directly to employees
Except under a relevant agreement, or another enactment, an employer
shall pay the wages of an employee in his or her employment directly to the
employee.
47 Freedom to
dispose of wages
An employer shall not limit in any manner the freedom of an employee
in his or her employment to dispose of his or her wages.
48 Deductions from
wages
Nothing in this Law shall prohibit the deduction from an
employee’s wages of amounts authorized by or under another enactment or a
relevant agreement.
49 Distraint on wages
Except as may be authorized by or under another enactment, no distraint may be made on wages by virtue of a provisional
order issued by the Bailiff or the Judge of the Petty Debts Court, and a distraint on wages may only be made by virtue of a judgment
or order of the Royal Court or the Petty Debts Court to the extent to which
authority so to do is given by the judgement or order.
50 Wages to be paid
at regular intervals
Except where another enactment or a relevant agreement provides
otherwise, an employer shall pay the wages of an employee in his or her
employment on normal working days and at regular intervals of not more than one
month.
Pay statements
51 Itemised pay
statement
(1) An
employee must be given by his or her employer, at or before the time at which
any payment of wages is made to the employee, a written itemised pay statement.[41]
(2) The
statement shall contain particulars of –
(a) the gross amount of the
wages;
(b) the amounts of any
variable deductions from that gross amount and the purposes for which they are
made;
(c) the net amount of wages
payable; and
(d) where different parts
of the net amount are paid in different ways, the amount and method of payment
of each part-payment.
52 Power to amend
provisions about pay statements
The States may by Regulations vary the provisions of Article 51
as to the particulars which are to be included in a pay statement by adding
items to, or removing items from, the particulars listed in that Article or by
amending any such particulars.
53 References to the
Tribunal
(1) Where
an employer does not give an employee a statement as required by
Article 51 or where the statement the employer gives does not comply with
what is required, the employee may refer the matter to the Tribunal to 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.[42]
(2) Where –
(a) a statement purporting
to be a pay statement purporting to comply with Article 51, has been given
to an employee; and
(b) a question arises as to
the particulars which ought to have been included or referred to in the
statement so as to comply with the requirements of this Law,
either the employer or the employee may require the question to be
referred to and determined by the Tribunal.
(3) For
the purposes of this Article a question as to the particulars which ought to
have been included in a pay statement shall not include a question solely as to
the accuracy of an amount stated in any such particulars.
(4) The
Tribunal shall not consider a reference under this Article in a case where the
employment to which the reference relates has ceased unless the reference 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 it is satisfied
that it was not reasonably practicable for the application to be made before
the end of that period of 8 weeks.
54 Determination of
references
(1) Where
on a reference under Article 53 the Tribunal finds –
(a) that an employer has
failed to give an employee a pay statement in accordance with Article 51;
or
(b) that a pay statement
does not, in relation to a deduction, contain the particulars required to be
included in that statement by Article 51,
the Tribunal shall make a declaration to that effect, and may order
that a pay statement shall be issued in a particular form, or may confirm the
particulars as included or referred to in the statement given by the employer,
amend those particulars, or substitute other particulars for them.
(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.[43]
(2) Where
on a reference in the case of which paragraph (1) applies the Tribunal
further finds that any unnotified deductions have
been made from the pay of the employee during the period of 13 weeks
immediately preceding the date of the application for the reference (whether or
not the deductions were made in breach of the contract of employment), the
Tribunal may order the employer to pay to the employee a sum not exceeding the
aggregate of the unnotified deductions so made.
(3) For
the purposes of paragraph (2) a deduction is an unnotified
deduction if it is made without the employer giving the employee, in any pay
statement, the particulars of the deduction required by Article 51.
(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.[44]
55 Offences
If an employer contravenes any of the provisions of this Part the
employer shall be guilty of an offence and shall be liable, in respect of each
offence, to a fine of level 3 on the standard scale.[45]
PART 5A[46]
MATERNITY, ADOPTION AND PARENTAL RIGHTS
CHAPTER 1
Interpretation
55A Interpretation for
the purposes of Part 5A
(1) For
the purposes of this Part –
“adopter”, in relation to a child, means a person who
has been matched with the child for adoption, or, in a case where 2 people
have been matched jointly, whichever of them has elected to be the
child’s adopter for the purposes of this Part;
“approved adoption society” has the meaning given in
Article 1 of the Adoption (Jersey) Law 1961[47];
“child” means a person under the age of 18;
“childbirth” means the birth of a living child or the
birth of a child, whether living or dead, after 24 weeks of pregnancy;
“compulsory maternity leave period” means the period of 6 weeks
beginning with the day on which childbirth by that employee occurs and “compulsory
maternity leave” is the leave taken by that employee during that period;
“expected week of childbirth” means the week, beginning
with midnight between Saturday and Sunday, in which it is expected that
childbirth will occur;
“official notification” means written notification,
issued by the Minister for Health and Social Services, that he or she is
prepared to issue a certificate to the overseas authority concerned with the
adoption of the child, or has issued a certificate and has sent it to that
authority, confirming, in either case, that the adopter is eligible to adopt
and has been approved as being a suitable adoptive parent;
“ordinary maternity leave” shall be construed in
accordance with Article 55E;
“ordinary maternity leave period” shall be construed in
accordance with Article 55F;
“overseas adoption” means the adoption of a child who
enters Jersey in connection with or for the purpose of adoption which does not
involve the placement of the child for adoption under Jersey law;
“parental responsibility” has the meaning given by
Article 1 of the Children (Jersey) Law 2002[48];
“partner”, in relation to a child’s mother or
adopter, means a person (whether of a different sex or the same sex) who lives
with the mother or adopter and the child in an enduring family relationship but
is not the mother’s or adopter’s parent, grandparent, sister,
brother, aunt or uncle;
“registered medical practitioner” has the same meaning
as given in the Medical Practitioners (Registration) (Jersey) Law 1960[49];
“registered midwife” means a person registered as a
midwife under the Health Care (Registration) (Jersey) Law 1995[50];
“registered nurse” means a person registered under the
Health Care (Registration) (Jersey) Law 1995 as a nurse;
“week of childbirth” means the week, beginning with
midnight between Saturday and Sunday, in which childbirth occurs. [51]
(2) For
the purposes of this Part, the provisions of Article 57 shall not apply in
computing a period of employment and instead a period of employment shall be
computed in accordance with Article 60B(2) as if computing the period of
employment for the purpose of determining whether a person has a right to a redundancy
payment.
(3) The
States may by Regulations –
(a) amend
paragraph (1);
(b) amend
any period referred to in this Part; or
(c) amend
this Part to provide for a right described in this Part to apply with or
without modification to other persons or classes of persons.
CHAPTER 2
ANTE-NATAL CARE
55B Right to time off
for ante-natal care
(1) An
employee in relation to whom this Article applies as provided by
paragraph (1A) or (1B) is entitled, subject to paragraph (2), to be
permitted by her or his employer to take time off during the employee’s
normal working hours for the purpose stated in either paragraph (1A) or
(1B), whichever is applicable.[52]
(1A) This Article
applies –
(a) in
relation to an employee who –
(i) is
pregnant, and
(ii) has made an
ante-natal appointment;
(b) for
the purpose of enabling the employee to keep that appointment.[53]
(1B) This Article
applies –
(a) in
relation to an employee who has a qualifying relationship with a pregnant woman
or her expected child;
(b) for
the purpose of enabling the employee to accompany the woman when she attends an
ante-natal appointment in Jersey.[54]
(2) An
employee is not entitled to take time off under paragraph (1) unless, if
the employer so requests, the employee produces for the employer’s
inspection –
(a) in
the case of an employee to whom this Article applies by virtue of
paragraph (1A) –
(i) a
certificate from a registered medical practitioner, registered midwife or
registered nurse stating that the employee is pregnant, and
(ii) an appointment
card or other document showing that the ante-natal appointment has been made;
(b) in
the case of an employee to whom this Article applies by virtue of paragraph (1B) –
(i) a
declaration, signed by the employee, to the effect that the purpose of his or
her absence from work will be that specified in paragraph (1B)(b) and that
he or she has a qualifying relationship as required by paragraph (1B)(a),
and
(ii) such evidence
that the ante-natal appointment has been made as the employer may reasonably
require.[55]
(3) Paragraph (2)(a)
does not apply where the employee’s appointment is the first appointment
during her pregnancy for which she seeks permission to take time off in
accordance with paragraph (1).[56]
(4) For
the purposes of this Article –
(a) the
normal working hours of an employee shall be taken to be any time when, in
accordance with the employee’s contract of employment, the employee is
normally required to work;
(b) an
“ante-natal appointment” means an appointment made by a pregnant
woman, on the advice of a registered medical practitioner, registered midwife
or registered nurse, to attend at any place for the purpose of receiving
ante-natal care (which does not include ante-natal classes to prepare the woman
for motherhood); and
(c) a
person has a “qualifying relationship” with a pregnant woman or her
expected child if the person is –
(i) married
to, or the civil partner or partner of, the pregnant woman, or
(ii) the father of the
expected child.[57]
(5) [58]
55C Right to
remuneration during time off to receive ante-natal care
(1) An
employee who is entitled to take time off under Article 55B for the
purpose stated in paragraph (1A) of that Article is entitled to be paid
remuneration by her employer for the period of absence at the appropriate hourly
rate, whether or not her employer has permitted her to take the time off. [59]
(1A) An employee
who is entitled to take time off under Article 55B for the purpose stated
in paragraph (1B) of that Article is entitled to be paid remuneration by
his or her employer –
(a) at
the appropriate hourly rate; and
(b) for
a total period (which need not be continuous) not exceeding 10 hours,
whether or not the employer has permitted the employee to take the
time off.[60]
(2) The
appropriate hourly rate, in relation to an employee, is the amount of one
week’s pay, calculated in accordance with Schedule 1, divided by the
number of working hours in a week for that employee when employed under the
contract of employment in force when the employee takes the time off.
(3) Where
the number of working hours differs from week to week or over a longer period,
the amount of one week’s pay, shall be divided instead by the average
number of working hours, calculated by dividing by 12 the total number of the
employee’s working hours during the period of 12 weeks ending with
the last complete week before the employee takes the time off.
(4) The
right to any amount under this Article does not affect any right of an employee
in relation to remuneration under that person’s contract of employment. [61]
(5) Any
remuneration paid to an employee under his or her contract of employment in
respect of a period of time off under Article 55B goes towards discharging
any liability of the employer to pay remuneration under this Article in respect
of that period; and, conversely, any payment of remuneration under this Article
in respect of a period goes towards discharging any liability of the employer
to pay remuneration under the employee’s contract of employment in
respect of that period.[62]
CHAPTER 3
MATERNITY LEAVE
55D Compulsory
maternity leave
(1) An
employer shall not require an employee to work during the employee’s
compulsory maternity leave period. [63]
(2) An
employee who would normally have been required, under her contract of
employment, to work during that period –
(a) is
entitled to be paid remuneration by her employer amounting to 6 weeks’
pay at the appropriate weekly rate;
(b) is entitled, during the
compulsory maternity leave period, to the benefit of all of the terms and
conditions of employment which would have applied if she had not been absent;
and
(c) is bound, during that
period, by any obligations arising under those terms and conditions, subject
only to the exceptions in this Part.[64]
(3) For
the purposes of paragraph (2)(a), the appropriate weekly rate is the
amount of one week’s pay, calculated in accordance with Schedule 1.[65]
(4) Any
remuneration paid to an employee under her contract of employment in respect of
a compulsory maternity leave period under paragraph (2) goes towards
discharging any liability of the employer to pay remuneration under
paragraph (2) in respect of that period; and, conversely, any payment of
remuneration under paragraph (2) in respect of such a period goes towards
discharging any liability of the employer to pay remuneration under the
employee’s contract of employment in respect of that period.
(5) Any
remuneration to be paid by an employer to an employee under paragraph (2)
shall be reduced by any amount that the employee receives by way of short term
incapacity allowance under Article 15 of the Social Security (Jersey)
Law 1974[66], or any maternity allowance
under Article 22 of that Law, in respect of the compulsory maternity leave
period.
55E Entitlement to
ordinary maternity leave
(1) An
employee is entitled to ordinary maternity leave (in addition to compulsory
maternity leave) provided that she satisfies the following
conditions –
(a) no
later than the end of the 15th week before her expected week of childbirth, or,
if that is not reasonably practicable, as soon as is reasonably practicable,
she notifies her employer of –
(i) her
pregnancy,
(ii) the expected week
of childbirth, and
(iii) the date on which she
intends her ordinary maternity leave period to start,
and
(b) if
requested to do so by her employer, she produces for her employer’s
inspection a certificate from –
(i) a
registered medical practitioner,
(ii) a registered
midwife, or
(iii) a registered nurse,
stating the expected week of childbirth.
(2) An
employee who is entitled under paragraph (1) to ordinary maternity leave
is entitled to a total period of 20 weeks of such leave (in addition to
6 weeks’ compulsory maternity leave).[67]
(3) [68]
(4) An
employee who has notified her employer under paragraph (1)(a)(iii) of the
date on which she intends her ordinary maternity leave period to start may
subsequently vary that date, provided that she notifies her employer of the
change at least –
(a) 28 days
before the date on which she originally intended her ordinary maternity leave
to start; or
(b) 28 days
before the new date,
whichever is the earlier, or, if that is not reasonably practicable,
as soon as is reasonably practicable.
(5) Notification
under paragraph (1)(a)(iii) or (4) –
(a) shall
be given in writing; and
(b) shall not specify a
date earlier than the beginning of the 11th week before the expected week
of childbirth.[69]
(6) An
employee’s entitlement to leave under this Article shall not be affected
by the birth, or expected birth, of more than one child as a result of the same
pregnancy.
55F Commencement of
ordinary maternity leave
(1) An
employee’s ordinary maternity leave period shall commence –
(a) with
the day which she notifies to her employer, in accordance with
Article 55E, as the day on which she intends her ordinary maternity leave
period to start; or
(b) if
by virtue of the provision for change in that Article she has notified more
than one such day, the last day she notifies.
(2) Where
the employee’s ordinary maternity leave period has not commenced by
virtue of paragraph (1) when childbirth occurs, her ordinary maternity
leave period commences on the day which follows the end of her compulsory
maternity leave period.
(3) The
States may by Regulations –
(a) specify
when an employee’s ordinary maternity leave period may or must commence
in circumstances other than those described in paragraphs (1) and (2); or
(b) specify
when a compulsory maternity leave period must or may be extended.
(4) An
employee’s ordinary maternity leave period –
(a) must
be taken for a continuous period (except in so far as it may be broken by the
taking of compulsory maternity leave) from its commencement; and
(b) may
not cease earlier than the date that the employee’s compulsory leave
period commences.
(5) Where
the employee’s employment terminates after the commencement of the
ordinary maternity leave period but before the time when (apart from this
paragraph) that period would end, the ordinary maternity leave period ends at
the time of the termination of the employment.
(6) An
employer who is notified under any provision of Article 55E of the day on
which an employee’s ordinary maternity leave period will commence or has
commenced shall notify the employee of the day on which her ordinary maternity
leave period shall end.
(7) The
notification provided for in paragraph (6) shall be given to the
employee –
(a) where
the employer is notified under Article 55E(1), within 28 days of the
date on which her employer received the notification, and where the employee
has notified the employer under Article 55E(4), within 28 days of the
last date the employee notifies;
(b) where
the employer is notified under paragraph (2), within 28 days of the
date on which the employee’s compulsory maternity leave period commenced.
(8) An
employee may be absent from work at any time during her ordinary maternity
leave period.
55G Application of terms and conditions during ordinary
maternity leave
(1) An
employee who takes ordinary maternity leave –
(a) is
entitled, during the period of leave, to the benefit of all of the terms and
conditions of employment, except terms and conditions about remuneration, which
would have applied if she had not been absent; and
(b) is
bound, during that period, by any obligations arising under those terms and
conditions, subject only to the exceptions in this Part.
(2) For
the purposes of paragraph (1) –
(a) sums
which would normally be payable to an employee by way of wages or salary which
are attributable to a period during which the employee was on ordinary
maternity leave are to be treated as remuneration; and
(b) any
wages, salary or commission for work done by the employee, or any bonus for
achievements of the employee, which are attributable to any period prior to the
employee beginning her ordinary maternity leave are not to be treated as
remuneration.
55H Requirement to
notify intention to return during ordinary maternity leave period
(1) An
employee who intends to return to work earlier than the end of her ordinary
maternity leave period shall give to her employer not less than
4 weeks’ notice of the date on which she intends to return.
(2) If
an employee attempts to return to work earlier than the end of her ordinary
maternity leave period without complying with paragraph (1), her employer
is entitled to postpone her return to a date such as will secure, subject to
paragraph (3), that the employer has 4 weeks’ notice of her
return.
(3) An
employee who complies with her obligations in paragraph (1) or whose
employer has postponed her return in the circumstances described in
paragraph (2), and who then decides to return to work –
(a) earlier
than the original return date, must give her employer not less than
4 weeks’ notice of the date on which she now intends to return;
(b) later
than the original return date, must give her employer not less than 4 weeks’
notice ending with the original return date.
(4) In
paragraph (3) the ‘original return date’ means the date which
the employee notified to her employer as the date of her return to work under
paragraph (1), or the date to which her return was postponed by her
employer under paragraph (2).
(5) An
employer is not entitled under paragraph (2) to postpone an
employee’s return to work to a date after the end of the ordinary
maternity leave period.
(6) If
an employee whose return to work has been postponed under paragraph (2)
has been notified that she is not to return to work before the date to which
her return was postponed, the employer is under no contractual obligation to
pay her remuneration until the date to which her return was postponed if she
returns to work before that date.
(7) This
Article does not apply in a case where the employer did not notify the employee
in accordance with Article 55F(6) of the date on which her ordinary
maternity leave period would end.
55I Work during
ordinary maternity leave period
(1) An
employee may carry out work for her employer during her ordinary maternity
leave period without bringing her ordinary maternity leave to an end.
(2) For
the purposes of this Article, any work carried out on any day shall constitute
a day’s work.
(3) Subject
to paragraph (4), for the purposes of this Article, work means any work
done under the contract of employment and may include training or any activity
undertaken for the purposes of keeping in touch with the workplace.
(4) Reasonable
contact from time to time between an employee and her employer which either
party is entitled to make during a compulsory maternity leave period or
ordinary maternity leave period (for example to discuss an employee’s
return to work) –
(a) shall
not constitute work; and
(b) shall
not bring that period to an end.
(5) [70]
(6) This
Article does not confer any right on an employer to require that any work be
carried out during the employee’s ordinary maternity leave period.
(7) Any
day’s work carried out under this Article shall not have the effect of
extending the total duration of the ordinary maternity leave period. [71]
55J Right to
return after maternity leave
(1) An
employee who returns to work immediately after a period of compulsory maternity
leave or ordinary maternity leave is entitled to return to the job in which she
was employed immediately before her absence.
(2) An
employee’s right to return is a right to return –
(a) with
her seniority, pension rights and similar rights as they would have been if she
had not been absent; and
(b) on
terms and conditions not less favourable than those which would have applied if
she had not been absent.
CHAPTER 4
ADOPTION LEAVE
55K Entitlement to adoption leave
(1) An
employee is entitled to adoption leave in respect of a child provided the
employee –
(a) is
the child’s adopter; and
(b) has
either notified the approved adoption society that he or she agrees that the
child should be placed with him or her and has agreed the date of placement or,
in the case of an overseas adoption, has received an official notification; and
(c) has
given his or her employer notice of his or her intention to take adoption leave
in respect of a child, specifying –
(i) the
date on which the child is expected to be placed with him or her for adoption
or, in the case of an overseas adoption, the date on which the child is
expected to enter Jersey, and
(ii) the date on which
the employee has chosen that his or her period of leave should begin.
(2) The
notice provided for in paragraph (1)(c) must be given to the
employer –
(a) no
more than 7 days after the date on which the employee receives official
notification of having been matched with the child for the purposes of adoption
or, in the case of an overseas adoption, no more than 7 days after the employee
receives notice of the date the child is expected to enter Jersey; or
(b) in
a case where it was not reasonably practicable for the employee to give notice
in accordance with sub-paragraph (a), as soon as is reasonably
practicable.
(3) Where
the employer so requests, the employee must also provide evidence in writing of
the date specified in accordance with paragraph (1)(c)(i)
in the notice given to the employer.[72]
(4) An
employee who is entitled under paragraph (1) to adoption leave is entitled
to a total period of 26 weeks of such leave.[73]
(4A) An employee
who would normally have been required, under his or her contract of employment,
to work during the first 6 weeks’ period of his or her adoption leave –
(a) shall
not be required to work by his or her employer;
(b) is
entitled to be paid remuneration amounting to 6 weeks’ pay at the
appropriate weekly rate;
(c) is
entitled to the benefit of all of the terms and conditions of employment which
would have applied if he or she had not been absent; and
(d) is
bound by any obligations arising under those terms and conditions (subject only
to any exceptions in this Part),
during that 6 weeks’ period.[74]
(4B) For the
purposes of paragraph (4A)(b), the appropriate weekly rate is the amount
of one week’s pay, calculated in accordance with Schedule 1.[75]
(4C) Any
remuneration paid to an employee under his or her contract of employment in
respect of a period of paid adoption leave under paragraph (4A) goes
towards discharging any liability of the employer to pay remuneration under
that paragraph in respect of that period; and conversely, any payment of
remuneration under paragraph (4A) in respect of such a period goes towards
discharging any liability of the employer to pay remuneration under the
employee’s contract of employment in respect of that period.[76]
(4D) Any
remuneration to be paid by an employer under paragraph (4A) shall be
reduced by any amount that the employee receives by way of short term
incapacity allowance under Article 15 of the Social Security (Jersey)
Law 1974[77] in respect of the period of
paid adoption leave.[78]
(5) [79]
(6) An
employee who has given notice under paragraph (1)(c) may vary the date he
or she has chosen as the date on which his or her period of leave will begin,
subject to paragraph (7) and provided that the employee gives his or her
employer notice of the change –
(a) where
the change is to provide for the employee’s period of leave to begin on
the date on which the child is placed with him or her for adoption or, in the
case of an overseas adoption, the date on which the child will enter Jersey, at
least 28 days before the date specified in his or her notice under
paragraph (1) as the date on which the child is expected to be placed with
him or her or expected to enter Jersey, as the case may be;
(b) where
the change is to provide for the employee’s period of leave to begin on a
predetermined date (or a different predetermined date), at least 28 days
before that date,
or, if it is not reasonably practicable to give the notice
28 days before whichever date is relevant, as soon as is reasonably
practicable.
(7) In
a case where paragraph (6) applies, an employee may only vary the date
which he or she has chosen as the date on which his or her period of leave will
begin by substituting a different predetermined date.
(8) Notice
under paragraph (1) or (6) shall be given in writing.
(9) An
employee’s entitlement to leave under this Article shall not be affected
by the placement for adoption of more than one child as part of the same
arrangement or, in the case of an overseas adoption, by more than one child
being adopted as part of the same arrangement.
55L Commencement of
adoption leave
(1) An
employee may choose to begin a period of adoption leave on –
(a) the
date on which the child is placed with him or her for adoption or, in the case
of an overseas adoption, the date on which the child enters Jersey; or
(b) a
predetermined date, specified in a notice under Article 55K, which
is –
(i) no
more than 14 days before the date on which the child is expected to be
placed with the employee, or
(ii) in the case of an
overseas adoption, no more than 14 days before the child is expected to
enter Jersey,
and no later than the date the child is so placed or so enters.
(2) Except
in the case referred to in paragraph (3), an employee’s adoption
leave period begins on the date specified in his or her notice under
Article 55K(1)(c), or, where he or she has varied his or her choice of
date under Article 55K(6), on the date specified in his or her notice
under that provision (or the last such date if he or she has varied his or her
choice more than once).
(3) In
a case where –
(a) the
employee has chosen to begin his or her adoption leave period on the date on
which the child is placed with him or her or the date that the child enters
Jersey, as the case may be; and
(b) he
or she is at work on that date,
the employee’s adoption leave period begins on the day after
that date.
(4) An
employer who is given notice under Article 55K(1) or (6) of the date on
which an employee has chosen that his or her adoption leave period should begin
shall notify the employee, within 28 days of his or her receipt of the
notice, of the date on which the adoption leave period to which the employee
will be entitled ends.
(5) The
notification provided for in paragraph (4) shall be given to the
employee –
(a) where
the employer is given notice under Article 55K(1)(c), within 28 days
of the date on which he or she received that notice; and
(b) if,
by virtue of Article 55K the employee has notified more than one such
date, within 28 days of the last date the employee notifies.
(6) An
employee’s adoption leave period must be taken for a continuous period
from its commencement.
(7) Where
the employee’s employment terminates after the commencement of the
adoption leave period but before the time when (apart from this paragraph) that
period would end, the period ends at the time of the termination of the
employment.
(8) An
employee may be absent from work at any time during his or her adoption leave
period.
55M Arrangements during
adoption leave
Articles 55G, 55H, 55I and 55J shall apply to an employee who
takes adoption leave in the same way as if the employee had taken ordinary
maternity leave.[80]
CHAPTER 5
PARENTAL LEAVE upon birth or adoption
55N Entitlement to
parental leave upon birth or adoption
(1) An
employee is entitled to a total period of 26 weeks parental leave for the
purpose of caring for a child or supporting the child’s mother or adopter
if the employee –
(a) satisfies
the conditions specified in paragraph (2); and
(b) has
complied with the notice requirements in Article 55P and, where
applicable, the evidential requirements in that Article.[81]
(2) The
conditions referred to in paragraph (1) are that the employee –
(a) is
either –
(i) the
father of the child, or
(ii) married to, the
civil partner of, or the partner of, the child’s mother or adopter, but
not the child’s father or adopter; and
(b) has,
or expects to have responsibility for the upbringing of the child, or the main responsibility
(apart from any responsibility of the mother or adopter) for the upbringing of
the child.
(3) An
employee shall be treated as having satisfied the condition in
paragraph (2)(a)(ii) if the employee would have satisfied it but for the
fact that the child’s mother or adopter has died.
(4) An
employee shall be treated as having satisfied the condition in
paragraph (2)(b) if the employee would have satisfied it but for the fact
that the child was stillborn after 24 weeks of pregnancy or has died.
(4A) An employee
who would normally have been required, under his or her contract of employment,
to work during the first 2 weeks’ period of his or her parental
leave –
(a) shall
not be required to work by his or her employer;
(b) is
entitled to be paid remuneration amounting to 2 weeks’ pay at the
appropriate weekly rate;
(c) is
entitled to the benefit of all of the terms and conditions of employment which
would have applied if he or she had not been absent; and
(d) is
bound by any obligations arising under those terms and conditions (subject only
to any exceptions in this Part),
during that 2 weeks’ period.[82]
(4B) For the
purposes of paragraph (4A)(b), the appropriate weekly rate is the amount
of one week’s pay, calculated in accordance with Schedule 1.[83]
(4C) Any
remuneration paid to an employee under his or her contract of employment in
respect of a period of paid parental leave under paragraph (4A) goes
towards discharging any liability of the employer to pay remuneration under
that paragraph in respect of that period; and conversely, any payment of
remuneration under paragraph (4A) in respect of such a period goes towards
discharging any liability of the employer to pay remuneration under the
employee’s contract of employment in respect of that period.[84]
(4D) Any
remuneration to be paid by an employer under paragraph (4A) shall be
reduced by any amount that the employee receives by way of short term
incapacity allowance under Article 15 of the Social Security (Jersey) Law 1974
in respect of the period of paid parental leave.[85]
(5) An
employee’s entitlement to parental leave under this Article shall not be
affected by the birth, or expected birth, of more than one child as a result of
the same pregnancy.
(6) An
employee’s entitlement to parental leave under this Article shall not be
affected by the placement for adoption of more than one child as part of the
same arrangement or, in the case of an overseas adoption, by more than one
child being adopted by the same arrangement.
55O Options in respect
of parental leave upon birth or adoption
(1) In
the absence of any relevant agreement to more favourable effect between the
employer and the employee, an employee may choose to take the 26 weeks of
parental leave to which he or she is entitled under Article 55N(1), in
respect of any one child –
(a) in
no more than 3 separate periods; and
(b) for
no less than 2 weeks in the case of each such period.[86]
(2) The
parental leave may only be taken during the period which begins with the day on
which the child is born or placed for adoption, or in the case of an overseas
adoption, the date on which the child enters Jersey, and ends –
(a) except
in the case referred to in sub-paragraph (b), 52 weeks after that
day; or
(b) in
a case where the child is born or adopted before the first day of the expected
week of its birth or adoption, 52 weeks after that day.[87]
(3) Subject
to paragraph (2), an employee may choose to begin his or her period of
parental leave on –
(a) the
day on which the child is born or adopted;
(b) the
day falling such number of days after the date on which the child is born or
adopted as the employee may specify in a notice under Article 55P; or
(c) a
predetermined date, specified in a notice under Article 55P, which is
later than the first day of the expected week of childbirth or adoption.
55P Notice and
evidential requirements for parental leave upon birth or adoption
(1) An
employee must give his or her employer notice of his or her intention to take
parental leave in respect of a child, specifying –
(a) the
expected week of childbirth or adoption;
(b) the
period of leave that, in accordance with Article 55O(1), the employee has
chosen to take; and
(c) the
date on which, in accordance with Article 55O(3), the employee has chosen
that his or her period or periods of leave should begin.
(2) The
notice provided for in paragraph (1) must be given to the
employer –
(a) in
the case where the employee is taking parental leave following the birth of a
child, no later than the end of the 15th week before the expected week of
childbirth;
(b) in
the case where the employee is taking parental leave following the adoption of
a child, no more than 7 days after the date on which the adopter receives
official notification of the adopter having been matched with the child for the
purposes of adoption or, in the case of an overseas adoption, no more than
7 days after the employee receives notice of the date that the child is
expected to enter Jersey; or
(c) in
a case where it was not reasonably practicable for the employee to give the
notice in accordance with sub-paragraph (a) or (b), as the case may be, as
soon as is reasonably practicable.
(3) Where
the employer so requests, an employee must –
(a) give
his or her employer a declaration, signed by the employee, to the effect that
the purpose of his or her absence from work will be that specified in
Article 55N(1) and that he or she satisfies the conditions of entitlement
in Article 55N(2)(a) and (b);
(b) give
his or her employer evidence of the information notified to his or her employer
under paragraph (1)(a).
(4) An
employee who has given notice under paragraph (1) may vary the date he or
she has chosen as the date on which his or her period of parental leave will
begin, subject to paragraph (5) and provided that the employee gives his
or her employer notice of the change –
(a) where
the change is to provide for the employee’s period of leave to begin on
the date on which the child is born or adopted, at least 28 days before
the first day of the expected week of childbirth or adoption;
(b) where
the change is to provide for the employee’s period of leave to begin on a
date that is a specified number of days (or a different specified number of
days) after the date on which the child is born or adopted, at least
28 days before the date falling that specified number of days after the
first day of the expected week of childbirth or adoption;
(c) where
the change is to provide for the employee’s period of leave to begin on a
predetermined date (or a different predetermined date), at least 28 days
before that date,
or, if it is not reasonably practicable to give the notice at least
28 days before whichever day or date is relevant, as soon as is reasonably
practicable.
(5) In
a case where –
(a) the
employee has chosen to begin his or her period of parental leave on a
predetermined date; and
(b) the
child is not born or adopted on or before that date,
the employee must vary his or her choice of date, by substituting a
later predetermined date exercising an option under paragraph (4), and
give his or her employer notice of the change as soon as is reasonably
practicable.
(6) An
employee must give his or her employer a further notice, as soon as is
reasonably practicable after childbirth or adoption, of the date on which the
child was born or adopted.
(7) Notice
under paragraph (1), (4), (5) or (6) shall be given in writing.
55Q Commencement of
parental leave for birth or adoption
(1) Except
in the case referred to in paragraph (2), an employee’s period of
parental leave under Article 55O begins on the date specified in his or
her notice under Article 55P(1), or, where the employee has varied his or
her choice of date under Article 55P(4) or (5), on the date specified
in his or her notice under that provision (or the last such notice if he or she
has varied his or her choice more than once).
(2) In
a case where –
(a) the
employee has chosen to begin his or her period of parental leave on the date on
which the child is born or adopted; and
(b) he
or she is at work on that date,
the employee’s period of parental leave begins on the day
after that date.
(3) Where
the employee’s employment terminates after the commencement of the
parental leave period but before the time when (apart from this paragraph) that
period would end, the period ends at the time of the termination of the
employment.
(4) An
employee may be absent from work at any time during his or her parental leave
period.
55QA Arrangements during
parental leave[88]
Articles 55G, 55H, 55I and 55J shall apply to an employee who
takes parental leave in the same way as if the employee had taken ordinary
maternity leave.
CHAPTER 6
contractual rights and access to tribunal
55R Contractual rights
to ante-natal care, maternity leave, adoption leave or parental leave
(1) This
Article applies where an employee –
(a) is
entitled to time off under this Part for the purpose of being given ante-natal
care, or to maternity leave, adoption leave or parental leave; and
(b) has
a right which corresponds to that entitlement and which arises under the
employee’s contract of employment or otherwise.
(2) In
a case where this Article applies –
(a) the
employee may not exercise both the entitlement under this Part and the
corresponding right under the employee’s contract of employment but may,
in taking the leave for which the right and entitlement provide, take advantage
of whichever provision is, in any particular respect, the more favourable; and
(b) the
provisions relating to the entitlements under this Part apply, subject to any
modifications necessary to give effect to any more favourable contractual terms
or any more favourable rights to be exercised by the employee as a result of
the advantage taken under sub-paragraph (a).
55S Complaints
to Tribunal for breach of requirement under Part 5A
(1) An
employee may present a complaint to the Tribunal that his or her employer has
contravened any requirement under Part 5A.
(2) No
complaint under this Article may be made in respect of a 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 it is
satisfied that it was not reasonably practicable for the complaint to be
presented before the end of that period of 8 weeks.
(4) For
the purposes of paragraph (3), the “relevant date” mentioned
in sub-paragraph (3)(a) is –
(a) in
the case of an alleged contravention of Article 55B(1), the date of the
ante-natal appointment referred to in either Article 55B(1A) or (1B)
(whichever is the provision by virtue of which Article 55B applies in the
particular case);
(b) in
the case of an alleged contravention of any of Articles 55C(1) or (1A),
55D(2) or (3), 55K(4A) or (4B), or 55N(4A) or (4B), the date which is
28 days after the date on which the employee concerned would expect
normally to receive remuneration for the period during which he or she is
absent;
(c) in
the case of an alleged contravention of Article 55D(1), the date of the
day immediately following the day on which the compulsory maternity leave
period ends;
(d) in
the case of an alleged contravention of any of Articles 55E(1) or (2),
55F(1), (4) or (6), 55G, 55I or 55J (other than a contravention such as
mentioned in sub-paragraph (e)), the date of the day immediately following
the day on which the ordinary maternity leave period ends;
(e) in
the case of an alleged contravention of rights connected with the adoption of a
child conferred by any of Articles 55G, 55I, 55J (in each case as applied
by Article 55M) or 55K(1) or (4), the date of the day immediately
following the day on which the adoption leave period ends;
(f) in
the case of an alleged contravention of rights connected with parental leave
conferred by any of Articles 55G, 55I or 55J (in each case as applied
by Article 55QA) or 55N(1), the date of the day immediately following the
day on which the parental leave period ends;
(g) in
the case of an alleged contravention of any of Articles 55O, 55P(4) or
55Q, the date of the day immediately following the day on which there ends the
period of 52 weeks mentioned in sub-paragraph (a) or (b) of Article 55O(2)
(whichever is the provision applying in the particular case).[89]
(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.
55T Remedies for
breach of Part 5A
(1) Where
the Tribunal finds a complaint under Article 55S well-founded it shall
make a declaration to that effect and may –
(a) order
the employer to pay the whole or any part of any amount to which the employee
is entitled under Article 55C or 55D(2) or (3); and
(b) order
the employer to pay compensation to the employee in respect of each
contravention, of an amount not exceeding 4 weeks’ pay.
(2) The
States may amend paragraph (1) by Regulations.
PART 5B[90]
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.
PART 6
TERMINATION OF EMPLOYMENT
56 Minimum period of
notice
(1) Subject
to paragraph (9), the notice required to be given by an employer to
terminate the employment of an employee who has been continuously employed for
one week or more shall be not less than –
(a) one
week’s notice if his or her period of continuous employment is less than
2 years;
(b) 2 weeks’
notice if his or her period of continuous employment is 2 years or more
but less than 3 years;
(c) 3 weeks’
notice if his or her period of continuous employment is 3 years or more
but less than 4 years;
(d) 4 weeks’
notice if his or her period of continuous employment is 4 years or more
but less than 5 years;
(e) 5 weeks’
notice if his or her period of continuous employment is 5 years or more
but less than 6 years;
(f) 6 weeks’
notice if his or her period of continuous employment is 6 years or more
but less than 7 years;
(g) 7 weeks’
notice if his or her period of continuous employment is 7 years or more
but less than 8 years;
(h) 8 weeks’
notice if his or her period of continuous employment is 8 years or more
but less than 9 years;
(i) 9 weeks’
notice if his or her period of continuous employment is 9 years or more but
less than 10 years;
(j) 10 weeks’
notice if his or her period of continuous employment is 10 years or more
but less than 11 years;
(k) 11 weeks’
notice if his or her period of continuous employment is 11 years or more
but less than 12 years;
(l) 12 weeks’
notice if his or her period of continuous employment is 12 years or more.[91]
(2) The
notice required to be given by an employee who has been continuously employed
for one week or more shall be not less than –
(a) 1 week’s notice if his or her period of continuous
employment is more than 1 week but less than 26 weeks;
(b) 2 weeks’
notice if his or her period of continuous employment is 26 weeks or more
but less than 5 years; or
(c) 4 weeks’
notice if his or her period of continuous employment is 5 years or more.[92]
(3) Any
provision for shorter notice in a relevant agreement with a person who has been
continuously employed for 4 weeks or more shall have effect subject to
paragraphs (1) and (2), but this Article shall not prevent either party
from waiving his or her right to notice on any occasion or from accepting a
payment in lieu of notice.
(4) A
contract of employment of a person who has been continuously employed for
13 weeks or more which is a contract for a term certain of 4 weeks or
less shall have effect as if it were for an indefinite period; and,
accordingly, paragraphs (1), (2) and (3) shall apply to the contract.
(5) Paragraphs
(1), (2) and (3) shall not apply to a contract of employment made in
contemplation of the performance of a specific task which is not expected to
last for more than 13 weeks unless the employee has been continuously
employed for a period of more than 13 weeks.
(6) This
Article shall not affect any right of either party to a contract of employment to
treat the contract as terminable without notice by reason of the conduct of the
other party.
(7) A
relevant agreement may specify periods of notice longer than those specified in
paragraphs (1) and (2).
(8) The
period of continuous employment for the purposes of this Article shall be
computed in accordance with Article 57.
(9) Subject
to paragraphs (4) and (5), an employer shall be under no obligation to
give notice under paragraph (1) to an employee who is employed under a
fixed term contract of employment.
57 Computation of
period of employment
(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.[93]
(2) Any
week during the whole or part of which the employee’s relations with the
employer are governed by a contract of employment shall count in computing a
period of employment.[94]
(3) Any
week in which the employee is, for the whole or part of the week –
(a) incapable of work
because of sickness or injury;
(b) absent from work
because of a temporary cessation of work; or
(c) absent from work in
circumstances such that, by arrangement or custom, the employee is regarded as
continuing in the employment of his or her employer for all or any purposes,
shall count as a period of employment despite its not falling within
paragraph (2).
(4) If –
(a) a fixed term contract
of employment has expired in accordance with its terms; and
(b) another fixed term
contract of employment is entered into by the same parties which takes effect
not more than 26 weeks after the expiry of the previous fixed term
contract of employment,
the interval between the 2 periods of employment shall not be taken
to break the period of employment when computing its length, but the length of
the interval shall not be counted in the computation.
(5) A
week shall not count under paragraphs (2) to (4) if in that week, or any
part of that week, the employee takes part in a strike.
(6) The
continuity of an employee’s period of employment shall not be broken by a
week which does not count under this Article if in that week, or in a part of
that week, the employee takes part in a strike.
(7) The
continuity of the period of employment shall not be broken by a week which does
not count under this Article if, in that week, or in a part of that week, the
employee is absent from work because of a lock-out by his or her employer.
58 Change of employer
(1) Subject
to the provisions of this Article and of Article 59, the provisions of
this Part shall relate only to employment by a single employer.
(2) If
a trade or business or an undertaking is transferred from one person to
another, the period of continuous employment of an employee in the trade or
business or undertaking at the time of the transfer shall count as a period of
employment with the transferee, and the transfer shall not break the continuity
of the period of employment.
(3) If,
on the death of an employer, the employee is taken into the employment of the
personal representatives of the deceased, the employee’s period of
employment at the time of the death shall count as a period of employment with
the employer’s personal representatives and the death shall not break the
continuity of the period of employment.
(4) If
there is a change in the partners or personal representatives who employ any
person, the employee’s period of employment at the time of the change
shall count as a period of employment with the partners or personal
representatives after the change, and the change shall not break the continuity
of the period of employment.
(5) If
an employee of a company is taken into the employment of another company which,
at the time when the employee is taken into its employment is an associated
company of the first-mentioned company, the employee’s period of
employment at that time shall count as a period of employment with the
associated company and the change of employer shall not break the continuity of
the period of employment.
(6) For
the purposes of paragraph (5), a company is associated with another
company if it is a subsidiary or a holding company of that other company, or if
both companies are subsidiaries of the same holding company.
59 Rights of
employee
(1) The
rate of remuneration payable during the period of notice by an employer or
recoverable by the employer where an employee terminates the employment without
the requisite notice provided for by this Law shall be that which applied
immediately before the notice to terminate the employment was given by the
employer or the employee left without giving the requisite notice.
(2) Where
bonus payments or gratuities of any kind have been agreed at the time of
commencement of an employment as forming part of an employee’s
remuneration, to be paid at intervals or periods of time, the employee shall be
entitled to receive a pro rata payment of such bonus payments and gratuities at
the termination of his or her employment unless –
(a) such employment has
been legitimately terminated by the employer by reason of the conduct of the
employee;
(b) or –
(i) the
employee agreed at the time of commencing the employment that no bonus or
gratuity nor any part of such bonus or gratuity would become payable to the
employee until after a specified period of employment had been completed, and
(ii) the employee
terminates the employment before completing the specified period.
60 Power to amend
this Part
The States may by Regulations amend any of the periods of time,
whether expressed in hours, weeks or years, mentioned in this Part.
Part 6a[95]
rights on redundancy
60A The right to
redundancy payment
(1) Subject
to the following provisions of this Part, if an employer dismisses any employee
by reason of redundancy, the employer shall pay the employee a redundancy
payment.[96]
(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.[97]
60B Qualifying period
of employment[98]
(1) An
employee does not have any right to a redundancy payment unless that person has
been continuously employed for a period of not less than 2 years ending
with the effective date of termination.
(2) The
provisions of Article 57 shall not apply in computing the period of
employment for the purposes of this Article and instead the period of
employment shall be computed as follows –
(a) any
week during the whole or part of which the employee’s relations with the
employer are governed by a contract of employment shall count in computing a
period of employment;
(b) except
so far as otherwise provided by the following provisions of this paragraph any
week which does not count under sub-paragraph (a) shall break the
continuity of the period of employment for the purposes of this Article;
(c) if –
(i) a
fixed term contract of employment has expired in accordance with its terms, and
(ii) another fixed
term contract of employment is entered into by the same parties which takes
effect not more than 9 weeks after the expiry of the previous fixed term
contract of employment,
the interval between the 2 periods of employment shall not be
taken to break the period of employment when computing its length, but the
length of the interval shall not be counted in the computation;
(d) a
week shall not count under sub-paragraph (a) if, in that week, or any part
of that week, the employee takes part in a strike;
(e) the
continuity of an employee’s period of employment shall not be broken by a
week which does not count under this paragraph if in that week, or part of that
week, the employee takes part in a strike;
(f) the
continuity of the period of employment shall not be broken by a week which does
not count under this paragraph if, in that week, or in a part of that week, the
employee is absent from work because of a lock-out by his or her employer.
60C Amount of
redundancy payment
(1) The
amount of a redundancy payment shall be calculated by allowing one
week’s pay for each year of employment during the period, ending with the
effective date of termination, in which the employee has been continuously
employed.
(2) For
the avoidance of doubt, in this Article ‘year’ means a period of
12 calendar months.
(3) For
the purposes of paragraph (1), the amount of one week’s pay shall be
calculated in accordance with Schedule 1 but shall not exceed the most
recent figure for the mean average weekly earnings published by Statistics
Jersey (within the meaning assigned by Article 2 of the Statistics and
Census (Jersey) Law 2018[99]) at least one month before
the effective date of termination (disregarding any more recent figure
published less than a month before the effective date of termination).[100]
(4) The
Minister may, by Order, amend paragraph (3) to specify the amount or a
different formula for calculating one week’s pay.[101]
60CA Further provisions relating to continuity
of employment[102]
(1) For
the purposes of Articles 60B and 60C, if –
(a) an
employer has paid the employee a redundancy payment under this Part; and
(b) the
employee’s contract of employment is renewed (whether by the same or
another employer) or he or she is engaged under a new contract of employment
(whether by the same or another employer),
the period in which an employee has been continuously employed is
deemed to be broken on the date that is the effective date of termination
referred to in Article 60B(1) or 60C(1), as the case may be.
(2) For
the purposes of this Article, a redundancy payment shall be treated as having
been paid under this Part if –
(a) the
whole of the payment has been paid to the employee by the employer;
(b) the
Tribunal has found that the employer must pay part (but not all) of the
redundancy payment and the employer has paid that part; or
(c) the
employee was entitled to receive the redundancy pay component of insolvency
benefit under Article 26C of the Social Security (Jersey) Law 1974[103] relating to his or her
employment (whether or not the employee received any redundancy pay to which he
or she was entitled).[104]
60D Time limits applicable
to redundancy payments
(1) An
employee does not have any right to a redundancy payment under this Part
unless, before the end of the period of 6 months beginning with the effective
date of termination any of the following has occurred –
(a) the
redundancy payment has been agreed and paid;
(b) the
employee has made a claim for the redundancy payment by notice in writing given
to the employer;
(c) a
question as to the employee’s right to, or the amount of, the redundancy
payment has been referred to the Tribunal;
(d) a
complaint relating to his or her dismissal has been presented to the Tribunal
by the employee under Article 76.
(2) An
employee is not deprived of his or her right to a redundancy payment by
paragraph (1) if, during the period of 6 months immediately following
the period mentioned in that paragraph, the employee –
(a) makes
a claim for the payment by notice in writing given to the employer;
(b) refers
to the Tribunal a question as to his or her right to, or the amount of, the
payment; or
(c) presents
a complaint relating to his or her dismissal under Article 76,
and it appears to the Tribunal to be just and equitable that the
employee should receive a redundancy payment.
(3) In
determining under paragraph (2) whether it is just and equitable that an
employee should receive a redundancy payment the Tribunal shall have regard
to –
(a) the
reason shown by the employee for his or her failure to take any such step as is
referred to in paragraph (2) within the period mentioned in
paragraph (1); and
(b) all
other relevant circumstances.
60E Renewal of
contract or re-engagement
(1) Where –
(a) an
employee’s contract of employment is renewed or he or she is re-engaged
under a new contract of employment in pursuance of an offer (whether in writing
or not) made before the end of that person’s employment under the
previous contract; and
(b) the
renewal or re-engagement takes effect either immediately on, or after an
interval of not more than 4 weeks after, the end of that employment,
the employee is not entitled to a redundancy payment.
(2) Paragraph (1)
does not apply if –
(a) the
provisions of the contract as renewed, or of the new contract, as
to –
(i) the
capacity and place in which the employee would be employed, and
(ii) the other terms
and conditions of that employment,
differ (wholly or in part) from the corresponding provisions of the
previous contract; and
(b) during
the period specified in paragraph (3) –
(i) the
employee or employer terminates the renewed or new contract, or gives notice to
terminate it and it is in consequence terminated, and
(ii) the reason, or
principal reason, for the termination is that the employer or employee, as the
case may be, considers that the employment is not suitable for that employee.[105]
(3) For
the purposes of paragraph (2)(b), the period is the period –
(a) beginning
at the end of the employee’s employment at the end of the previous
contract; and
(b) ending
with –
(i) the
period of 4 weeks beginning with the date on which the employee starts
work under the renewed or new contract, or
(ii) such longer
period as may be agreed in writing by the employer and employee or the
employee’s representative.
(4) Where
an offer (whether in writing or not) is made to an employee before the end of
that person’s employment –
(a) to
renew that person’s contract of employment; or
(b) to
re-engage that person under a new contract of employment,
with the renewal or re-engagement to take effect either immediately
on, or after an interval of not more than 4 weeks after, the end of that
employment, the employee is not entitled to a redundancy payment if the
employee unreasonably refuses the offer and paragraph (5) is satisfied.[106]
(5) This
paragraph is satisfied where –
(a) the
provisions of the contract as renewed, or of the new contract, as
to –
(i) the
capacity and place in which the employee would be employed, and
(ii) the other terms
and conditions of that employment,
would not differ from the corresponding provisions of the previous
contract; or
(b) those
provisions of the contract as renewed, or of the new contract, would differ
from the corresponding provisions of the previous contract but the offer
constitutes an offer of suitable employment in relation to the employee.[107]
60F Collective
consultation requirements
(1) Where
an employer is proposing to dismiss as redundant at one establishment
12 or more employees, such dismissals taking place within a period of
30 days or less, the employer shall consult about the dismissals all the
persons who are the appropriate representatives of the affected employees.[108]
(2) The
consultation shall begin at least 30 days before the first of the
dismissals takes effect.
(3) For
the purposes of this Article, the appropriate representatives of the affected
employees are –
(a) in
respect of any employee of a description in respect of which a trade union is
registered under the Employment Relations (Jersey) Law 2007[109] and recognized in accordance
with a code of practice approved under Article 25 of that Law,
representatives of the trade union;
(b) in
respect of each employee of a description in respect of which there is no trade
union as described in sub-paragraph (a), whichever of the following
employee representatives the employer chooses –
(i) employee
representatives appointed or elected by the affected employees otherwise than
for the purposes of this Article, who (having regard to the purposes for and
the method by which they were appointed or elected) have authority from those
employees to receive information and to be consulted about the proposed
dismissals on their behalf,
(ii) employee
representatives elected by the affected employees, for the purposes of this
Article, in an election satisfying the requirements of Article 60G.[110]
(4) The
consultation shall include consultation about ways of –
(a) avoiding
the dismissals;
(b) reducing
the numbers of employees to be dismissed; and
(c) mitigating
the consequences of the dismissals,
and shall be undertaken by the employer with a view to reaching
agreement with the appropriate representatives.
(5) In
determining how many employees an employer is proposing to dismiss as
redundant, account shall be taken of employees in respect of whose proposed
dismissals consultation has already begun if the redundancy of those employees
is regarded as arising out of the same proposal and it would be reasonable to
regard those employees as part of the same group of employees for the purpose
of applying the consultation requirements in this Article.
(6) For
the purposes of the consultation the employer shall disclose in writing to the
appropriate representatives –
(a) the
reasons for the employer’s proposals;
(b) the
numbers and descriptions of employees whom it is proposed to make redundant;
(c) the
total number of employees of any such description employed by the employer at
the establishment in question;
(d) the
proposed method of selecting the employees who may be dismissed;
(e) the
proposed method of carrying out the dismissals, with due regard to any agreed
procedure, including the period over which the dismissals are to take effect;
and
(f) the
proposed method of calculating the amount of any redundancy payments to be made
to employees who may be dismissed.
(7) That
information shall be given to each of the appropriate representatives by being
delivered to them, or sent by post to an address notified by them to the
employer, or in the case of representatives of a trade union, sent by post to
the union at the address of its head or main office.
(8) The
employer shall allow the appropriate representatives access to the affected
employees and shall afford to those representatives such accommodation and
other facilities as may be appropriate.
(9) If,
in any case, there are special circumstances which mean that it is not
reasonably practicable for the employer to comply with a requirement of
paragraph (2), (4) or (6), the employer shall take all such steps towards
compliance with that requirement as are reasonably practicable in those
circumstances.
(10) For the
purposes of paragraph (9), where the decision leading to the proposed
dismissals is that of a person controlling the employer (directly or
indirectly), a failure on the part of that person to provide information to the
employer shall not constitute special circumstances meaning that it is not
reasonably practicable for the employer to comply with such a requirement.
(11) Where –
(a) the
employer has invited any of the affected employees to elect employee
representatives; and
(b)
the invitation was issued long enough before the time when the consultation is
required by paragraph (2) to begin to allow them to elect representatives
by that time,
the employer shall be treated as complying with the requirements of
this Article in relation to those employees if he or she complies with those
requirements as soon as is reasonably practicable after the election of those
representatives.
(12) If,
after the employer has invited affected employees to elect representatives, the
affected employees fail to do so within a reasonable time, the employer shall
give to each affected employee the information set out in paragraph (6).
(13) In this
Part “affected employee” means any employee who may be affected by
the proposed redundancy or who may be affected by measures taken in connection
with such redundancy but excludes any employee to whom paragraph (14)
applies.[111]
(14) This
paragraph applies to an employee who is employed under a contract of employment
for a fixed term of one year or less unless –
(a) the
employee was previously employed under another contract of employment for a
fixed term of one year or less;
(b) the
parties to both contracts of employment are the same; and
(c) the
interval between the expiry of the previous contract of employment and the
commencement of the employee’s current contract of employment was not more
than 9 weeks.[112]
60G Election of
employee representatives
(1) The
requirements for the election of employee representatives under
Article 60F(3)(b)(ii) are that –
(a) the
employer shall make such arrangements as are reasonably practicable to ensure
that the election is fair;
(b) the
employer shall determine the number of representatives to be elected so that
there are sufficient representatives to represent the interests of all the
affected employees having regard to the number and classes of those employees;
(c) the
employer shall determine whether the affected employees should be represented
either by representatives of all the affected employees or by representatives
of particular classes of those employees;
(d) before
the election the employer shall determine the term of office as employee
representatives so that it is of sufficient length to enable information to be
given and consultations under Article 60F to be completed;
(e) the
candidates for election as employee representatives are affected employees on
the date of the election;
(f) no
affected employee is unreasonably excluded from standing for election;
(g) all
affected employees on the date of the election are entitled to vote for
employee representatives;
(h) the
employees entitled to vote may vote for as many candidates as there are
representatives to be elected to represent them or, if there are to be
representatives for particular classes of employees, may vote for as many
candidates as there are representatives to be elected to represent their
particular class of employee;
(i) the
election is conducted so as to secure that –
(i) so
far as is reasonably practicable, those voting do so in secret, and
(ii) the votes given
at the election are accurately counted.
(2) Where,
after an election of employee representatives satisfying the requirements of
paragraph (1) has been held, one of those elected ceases to act as an
employee representative and any of those employees are no longer represented,
they shall elect another representative by an election satisfying the
requirements of paragraph (1)(a), (e), (f) and (i).
60H Protective
awards – complaint to Tribunal
(1) Where
an employer has failed to comply with a requirement of Article 60F or
Article 60G, a complaint may be presented to the Tribunal on that ground
by any of the appropriate representatives or, if for any reason there are no
such appropriate representatives, by any of the affected employees or by any of
the employees who have been dismissed as redundant.[113]
(2) If
on a complaint under paragraph (1) a question arises as to whether or not
any employee representative was an appropriate representative for the purposes
of Article 60F, it shall be for the employer to show that the employee
representative had the authority to represent the affected employees.
(3) On
a complaint under paragraph (1) that there has been a failure relating to
the election of employee representatives, it shall be for the employer to show
that the requirements in Article 60G have been satisfied.
(4) If
the Tribunal finds the complaint well-founded it shall make a declaration to
that effect and may also make a protective award.
(5) A
protective award is an award in respect of one or more descriptions of employee
who have been dismissed as redundant, or whom it is proposed to dismiss as
redundant, requiring the employer to pay remuneration to each such employee for
the protected period.
(6) The
protected period –
(a) begins
with the date on which the first of the dismissals to which the complaint
relates takes effect, or the date of the award, whichever is the earlier; and
(b) is
of such length as the Tribunal determines to be just and equitable in all the
circumstances having regard to the seriousness of the employer’s failure
to comply with any requirement of Article 60F or 60G,
but shall not exceed 9 weeks.[114]
(7) The
Tribunal shall not consider a complaint under this Article unless it is
presented to the Tribunal –
(a) before
the date on which the last of the dismissals to which the complaint relates
takes effect;
(b) during
the period of 8 weeks beginning with that date; or
(c) where
the Tribunal is satisfied that it was not reasonably practicable for the
complaint to be presented during the period of 8 weeks described in
sub-paragraph (b), within such further period as it considers reasonable.
(8) If,
on a complaint under this Article, a question arises –
(a) whether
there were special circumstances which rendered it not reasonably practicable
for the employer to comply with any requirement of Article 60F or 60G; or
(b) whether
the employer took all such steps towards compliance with that requirement as
were reasonably practicable in those circumstances,
it is for the employer to show that there were such circumstances and
that such steps were taken.
60I Entitlement
under protective award
(1) Where
a Tribunal has made a protective award, every employee of a description to
which the award relates is entitled to be paid remuneration by that
person’s employer for the protected period, subject to this Article.
(2) The
rate of remuneration payable is a week’s pay for each week of the protected
period.
(3) Remuneration
in respect of a period less than one week shall be calculated by reducing
proportionately the amount of a week’s pay.
(4) An
employee is not entitled to remuneration under a protective award in respect of
a period during which he or she is employed by the employer unless he or she would
be entitled to be paid by the employer in respect of that period –
(a) under
the contract of employment; or
(b) under
Article 59.
(5) For
the purpose of this Article –
(a) a
week’s pay shall be calculated in accordance with Schedule 1; and
(b) the
calculation date referred to in Schedule 1 shall be the date on which the
protective award was made or, in the case of an employee who was dismissed
before the date on which the protective award was made, the effective date of
termination.
(6) If
an employee of a description to which a protective award relates dies during
the protected period, the award has effect in that person’s case as if
the protected period ended on that person’s death.
60J Termination
of employment during protected period
(1) Where
an employee is employed by the employer during the protected period
and –
(a) that
employee is fairly dismissed by the employer, otherwise than for redundancy; or
(b) the
employee unreasonably terminates the contract of employment,
then, subject to the following provisions, the employee is not
entitled to remuneration under the protective award in respect of any period
during which, but for that dismissal or termination, the employee would have
been employed.
(2) If
an employer makes an employee an offer (whether in writing or not and whether
before or after the ending of the employee’s employment under the
previous contract) to renew the employee’s contract of employment, or to
re-engage the employee under a new contract, so that the renewal or
re-engagement would take effect before or during the protected period, and
either –
(a) the
provisions of the contract as renewed, or of the new contract, as to the
capacity and place in which the employee would be employed, and as to the other
terms and conditions of the employment, would not differ from the corresponding
provisions of the previous contract; or
(b) the
offer constitutes an offer of suitable employment in relation to the employee,
the following provisions have effect.
(3) If
the employee unreasonably refuses the offer, the employee is not entitled to
remuneration under the protective award in respect of a period during which, but
for that refusal, he or she would have been employed.
(4) If
the employee’s contract of employment is renewed, or the employee is
re-engaged under a new contract of employment, in pursuance of such an offer as
is referred to in paragraph (2)(b), there shall be a trial period in
relation to the contract as renewed, or the new contract (whether or not there
has been a previous trial period under this Article).
(5) The
trial period begins with the ending of the employment under the previous
contract and ends with the expiration of the period of 4 weeks beginning
with the date on which the employee starts work under the contract as renewed,
or the new contract, or such longer period as may be agreed in accordance with
paragraph (6) for the purpose of retraining the employee for employment
under that contract.
(6) Any
such agreement –
(a) shall
be made between the employer and the employee or a representative of the
employee before the employee starts work under the contract as renewed or, as
the case may be, the new contract;
(b) shall
be in writing;
(c) shall
specify the date of the end of the trial period; and
(d) shall
specify the terms and conditions of employment which will apply in the
employee’s case after the end of that period.
(7) If
during the trial period –
(a) the
employee, for whatever reason, terminates the contract or gives notice to
terminate it and the contract is thereafter in consequence terminated; or
(b) the
employer, for a reason connected with or arising out of the change to the
renewed, or new, employment, terminates the contract, or gives notice to
terminate it and the contract is thereafter in consequence terminated,
the employee remains entitled to remuneration under the protective
award unless, in a case falling with sub-paragraph (a), the employee acted
unreasonably in terminating or giving notice to terminate the contract.
60K Right to time off
to look for work or arrange for training
(1) An
employee who is given notice of dismissal by reason of redundancy is entitled
to be permitted by that person’s employer to take time off during the
employee’s working hours before the end of that person’s notice period
in order to –
(a) look
for new employment; or
(b) make
arrangements for training for future employment.
(2) An
employee is not entitled to take time off under this Article unless, on
whichever is the later of –
(a) the
date on which the notice is due to expire; and
(b) the
date on which the employment would expire were notice given as required by
Article 56,
the employee will have been (or would have been) continuously
employed for a period of 2 years or more.
(3) For
the purposes of paragraph (1) –
(a) an
employee is entitled to be permitted to take such time off work as is
reasonable provided that that period of permitted absence is at least the
period during which the employee would be entitled to 40% of his or her
week’s pay during the period of absence, calculated in accordance with Schedule 1;
and
(b) the
working hours of an employee shall be taken to be any time when, in accordance
with that person’s contract of employment, the employee is required to be
at work.[115]
(4) Paragraph (1)
does not apply to an employee who is employed under a contract of employment
for a fixed term of one year or less unless –
(a) the
employee was previously employed under another contract of employment for a
fixed term of one year or less;
(b) the
parties to both contracts of employment are the same; and
(c) the
interval between the expiry of the previous contract of employment and the
commencement of the employee’s current contract of employment was not
more than 9 weeks.[116]
60L Right to
remuneration for time off under Article 60K
(1) An
employee who is permitted to take time off under Article 60K is entitled
to be paid remuneration by that person’s employer for the period of
absence at the appropriate hourly rate.
(2) The
appropriate hourly rate, in relation to an employee, is the amount of one
week’s pay, calculated in accordance with Schedule 1, divided by the
number of normal working hours in a week for that employee when employed under
the contract of employment in force when the notice of dismissal was given.[117]
(3) Where
the number of normal working hours differs from week to week or over a longer
period, the amount of one week’s pay, calculated in accordance with
Schedule 1, shall be divided instead by the average number of normal
working hours calculated by dividing by twelve the total number of the employee’s
normal working hours during the period of twelve weeks ending with the last
complete week before the day on which notice was given.[118]
(4) If
an employer unreasonably refuses to permit an employee to take time off from
work as required by Article 60K, the employee is entitled to be paid an
amount equal to the remuneration to which that employee would have been
entitled under paragraph (1) if the employee had been permitted to take
the time off.
(5) The
amount of an employer’s liability to pay remuneration under
paragraph (1) shall not exceed 40% of a week’s pay of that employee
during the period of absence, calculated in accordance with Schedule 1.
(6) The
right to any amount under paragraph (1) or (4) does not affect any right
of an employee in relation to remuneration under that person’s contract
of employment.
(7) Any
contractual remuneration paid to an employee in respect of a period of time off
under this Article shall go towards discharging any liability of the employer
to pay remuneration under paragraph (1) in respect of that period; and,
conversely, any payment of remuneration under paragraph (1) in respect of such
a period goes towards discharging any liability of the employer to pay
contractual remuneration in respect of that period.
60M Complaints to the
Tribunal
(1) An
employee may present a complaint to the Tribunal that the employer of that
person –
(a) has
refused to permit that employee to take time off as required by Article 60K(1);
or
(b) has
failed to pay the whole or part of any amount to which the employee is entitled
under Article 60L(1) or (4).
(2) 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 date on which it is
alleged that the time off should have been permitted, whether or not it was in
fact permitted then; or
(b) within
such further period as the Tribunal considers reasonable in a case where it is
satisfied that it was not reasonably practicable for the complaint to be presented
before the end of that period of 8 weeks.
(3) Where
the Tribunal finds a complaint under this Article well-founded, the Tribunal
shall –
(a) make
a declaration to that effect; and
(b) direct
the employer to pay to the employee such amount as it thinks reasonable.
(4) The
amount which may be directed by the Tribunal to be paid by an employer under
paragraph (3) may exceed the amount for which the employer may be liable
under Article 60L.
60N Notifying the
Minister
(1) If
an employer proposes to dismiss as redundant at one establishment 12 or
more employees, such dismissals taking place within a period of 30 days or
less, the employer shall notify the Minister in writing of that
proposal –
(a) before
giving notice to terminate an employee’s contract of employment in
respect of any of those dismissals; or
(b) at
least 30 days before the first of those dismissals takes effect,
whichever is earlier.[119]
(2) A
notice given under this Article shall –
(a) be
given to the Minister by delivery or by sending it by post to that person, at
such address as the Minister may direct;
(b) where
there are representatives to be consulted under Article 60F, identify them
and state the date when consultation with them under that Article began;
(c) set
out the reasons for the dismissal;
(d) specify
the numbers of employees that the employer is proposing to dismiss as
redundant; and
(e) be
in such form and contain such other particulars as the Minister may direct.
(3) After
receiving a notice under this Article from an employer the Minister may by
written notice require the employer to give to the Minister such further
information as may be specified in the notice.
(4) Where
there are representatives to be consulted under Article 60F the employer
shall give to each of them a copy of any notice given under paragraph (1).
(5) For
the purposes of paragraph (4), copies shall be delivered to the
representatives or sent by post to one or more addresses notified by the
representatives to the employer, or, in the case of representatives of a trade
union, sent by post to the union at its registered address.
(6) If,
in any case, there are special circumstances rendering it not reasonably
practicable for the employer to comply with any of the requirements of
paragraphs (1) to (5), the employer shall take all such steps towards
compliance with that requirement as are reasonably practicable in the
circumstances.
(7) Where
the decision leading to the proposed dismissals is that of a person controlling
the employer (directly or indirectly), a failure on the part of that person to
provide information to the employer shall not constitute special circumstances
rendering it not reasonably practicable for the employer to comply with such a
requirement.
(8) The
Minister may use the information received under this Article to consult with
such other persons as he or she thinks fit.
60O Employee
representative’s right not to be subjected to detriment
(1) An
employee has the right not to be subjected to any detriment by any act, or
deliberate failure to act, by his or her employer done on any of the following
grounds –
(a) the
employee’s participation in an election of employee representatives,
including his or her participation as a candidate, for the purposes of this
Part;
(b) the
employee’s performance or proposed performance of any functions or
activities as an employee representative, or candidate to become such a
representative, for the purposes of this Part.
(2) This
Article does not apply where the detriment in question amounts to dismissal
within the meaning of Part 7.
60P Complaints to Tribunal
for breach of Article 60O
(1) An
employee may present a complaint to the Tribunal that he or she has been
subjected to a detriment in contravention of Article 60O.
(2) The
Tribunal shall not consider such a complaint unless it is presented
within –
(a) the
8 weeks immediately following the date of the act; or
(b) such
further period as the Tribunal may, in the interests of justice, consider
reasonable.
(3) For
the purposes of paragraph (2) –
(a) where
an act extends over a period, the ‘date of the act’ means the last
day of that period; and
(b) a
deliberate failure to act shall be treated as done when it was decided on as
construed in accordance with paragraph (4).
(4) In
the absence of evidence establishing the contrary, an employer shall be taken
to decide on a failure to act when he or she does an act inconsistent with
doing the act or, if the employer has done no such inconsistent act, when the
period expires within which he or she might reasonably have been expected to do
the act if it was to be done.
(5) Where
the Tribunal finds a complaint under this Article well-founded, it
shall –
(a) order
the employer to pay compensation to the employee of an amount not exceeding
4 weeks’ pay, calculated in accordance with Schedule 1; and
(b) declare
that any action taken against the employee by the employer, other than the
dismissal of the employee, is void.
60Q Right to time off
for employee representatives
(1) An
employee who is –
(a) an
employee representative for the purposes of this Part; or
(b) a
candidate in an election in which any person elected will, on being elected, be
such an employee representative,
is entitled to be permitted by his or her employer to take
reasonable time off during the employee’s working hours in order to
perform his or her functions as such employee representative or candidate or in
order to undergo training to perform such functions.
(2) For
the purposes of this Article the working hours of an employee shall be taken to
be any time when, in accordance with his or her contract of employment, the
employee is required to be at work.
60R Right to
remuneration for time off under Article 60Q
(1) An
employee who is permitted to take time off under Article 60Q is entitled
to paid remuneration by his or her employer for the time taken off at the
appropriate hourly rate.
(2) The
appropriate hourly rate, in relation to an employee, is the amount of one
week’s pay calculated in accordance with Schedule 1 divided by the
number of normal working hours in a week for that employee when employed under
the contract of employment in force on the day when the time off is taken.
(3) A
right to any amount under paragraph (1) does not affect any right of an
employee in relation to remuneration under his or her contract of employment
(“contractual remuneration”).
(4) Any
contractual remuneration paid to an employee in respect of a period of time off
under Article 60Q goes towards discharging any liability of the employer
to pay remuneration under paragraph (1) in respect of that period, and,
conversely, any payment of remuneration under paragraph (1) in respect of
a period goes towards discharging any liability of the employer to pay
contractual remuneration in respect of that period.
60S Complaint to
Tribunal for breach of Article 60Q or Article 60R
(1) An
employee may present a complaint to the Tribunal that his or her
employer –
(a) has
unreasonably refused to permit the employee to take time off as required under
Article 60Q; or
(b) has
failed to pay the whole or any part of the amount to which the employee is
entitled under Article 60R.
(2) The
Tribunal shall not consider a complaint unless it is presented –
(a) before
the end of the period of 8 weeks beginning with the day on which the time
off was taken or on which it is alleged the time off should have been
permitted; or
(b) within
such further period as the Tribunal considers reasonable in a case where it is
satisfied that it was not reasonably practicable for the complaint to be
presented before the end of that period of 8 weeks.
(3) Where
the Tribunal finds a complaint under this Article well-founded it shall make a
declaration to that effect.
(4) If
the complaint is that the employer has unreasonably refused to permit the
employee to take time off, the Tribunal shall also order the employer to pay
compensation to the employee of an amount equal to the remuneration to which
the employee would have been entitled under Article 60R if the employer
had not refused.
(5) If
the complaint is that the employer has failed to pay the employee the whole or
part of any amount to which the employee is entitled under Article 60R,
the Tribunal shall also order the employer to pay to the employee the amount
which the Tribunal finds due to the employee.
PART 7
UNFAIR DISMISSAL
CHAPTER 1
RIGHT NOT TO BE UNFAIRLY DISMISSED
61 The right
(1) An
employee shall have the right not to be unfairly dismissed by his or her
employer.
(2) Paragraph (1)
shall have effect subject to the following provisions of this Part.
Dismissal - Loss of unfair dismissal protection
62 Circumstances in
which an employee is dismissed
(1) For
the purposes of this Part an employee is dismissed by his or her employer if
(and, subject to paragraph (2), only if) –
(a) the contract under
which the employee is employed is terminated by the employer (whether with or
without notice);
(b) the employee has been
employed under a fixed term contract of employment, or a series of fixed term
contracts, and the term of the subsisting fixed term contract expires without
being renewed under the same contract; or
(c) the employee terminates
the contract under which he or she is employed (with or without notice) in
circumstances in which the employee is entitled to terminate it without notice
by reason of the employer’s conduct.[120]
(2) An
employee shall be taken to be dismissed by his or her employer for the purposes
of this Part if –
(a) the employer gives
notice to the employee to terminate his or her contract of employment; and
(b) at a time within the
period of that notice the employee gives notice to the employer to terminate
the contract of employment on a date earlier than the date on which the
employer’s notice is due to expire,
and the reason for the dismissal is to be taken to be the reason for
which the employer’s notice is given.
63 Effective date of
termination
(1) Subject
to the following provisions of this Article, in this Part and in Part 6A the
“effective date of termination” –
(a) in relation to an
employee whose contract of employment is terminated by notice, whether given by
his or her employer or by the employee, means the date on which the notice
expires;
(b) in relation to an
employee whose contract of employment is terminated without notice, means the
date on which the termination takes effect; and
(c) in relation to an
employee who is employed under a fixed term contract of employment which
expires without being renewed under the same contract, means the date on which
the term expires.[121]
(2) Where –
(a) the contract of
employment is terminated by the employer; and
(b) the notice required by
Article 56 to be given by an employer would, if duly given on the material
date, expire on a date later than the effective date of termination,
for the purposes of Article 73 the later date shall be the
effective date of termination.
(3) In
paragraph (2)(b) “the material date” means –
(a) the date when notice of
termination was given by the employer; or
(b) where no notice was
given, the date when the contract of employment was terminated by the employer.
(4) Where –
(a) the contract of
employment is terminated by the employee;
(b) the material date does
not fall during a period of notice given by the employer to terminate that
contract; and
(c) had the contract been
terminated not by the employee but by notice given on the material date by the
employer, that notice would have been required by Article 56 to expire on
a date later than the effective date of termination (as defined by
paragraph (1)),
for the purposes of Article 73 the later date shall be the
effective date of termination.
(5) In
paragraph (4) “the material date” means –
(a) the date when notice of
termination was given by the employee; or
(b) where no notice was
given, the date when the contract of employment was terminated by the employee.
Fairness
64 General
(1) In
determining for the purposes of this Part whether the dismissal of an employee
is fair or unfair, it shall be for the employer to show –
(a) the reason (or, if more
than one, the principal reason) for the dismissal; and
(b) that it is either a
reason falling within paragraph (2) or some other substantial reason of a
kind such as to justify the dismissal of an employee holding the position which
the employee held.
(2) A
reason shall fall within this paragraph if it –
(a) relates to the
capability or qualifications of the employee for performing work of the kind
which the employee was employed by the employer to do;
(b) relates to the conduct
of the employee;
(ba) is
that the employee was required to retire;
(c) is that the employee
was redundant; or
(d) is that the employee
could not continue to work in the position which the employee held without
contravention, (either on the employee’s part or on that of his or her
employer) of a duty or restriction imposed by or under an enactment.[122]
(3) In
paragraph (2)(a) –
(a) “capability”,
in relation to an employee, means the employee’s capability assessed by
reference to skill, aptitude, health or any other physical or mental quality;
and
(b) “qualifications”,
in relation to an employee, means any degree, diploma or other academic,
technical or professional qualification relevant to the position which the
employee held.
(4) Where
the employer has fulfilled the requirements of paragraph (1), the
determination of the question whether the dismissal is fair or unfair (having
regard to the reason shown by the employer) shall –
(a) depend on whether in
the circumstances (including the size and administrative resources of the
employer’s undertaking) the employer acted reasonably or unreasonably in
treating it as a sufficient reason for dismissing the employee; and
(b) be determined in
accordance with equity and the substantial merits of the case.
(5) Paragraph
(4) shall be subject to Articles 63 and 65 to 72.
65 Dismissal on
grounds related to union membership or activities
(1) For
the purposes of this Part the dismissal of an employee shall be regarded as
unfair if the reason for it (or, if more than one, the principal reason) was
that the employee –
(a) was, or proposed to
become, a member of a trade union;
(b) had taken part, or
proposed to take part, in the activities of a trade union at an appropriate
time, or in any
action by a trade union in contemplation or furtherance of an employment
dispute (not being action by way of conduct that is specified in a code of
practice approved under Article 25 of the Employment Relations (Jersey) Law 2007 as unreasonable conduct when done in contemplation or
furtherance of an employment dispute); or
(c) was not a member of any
trade union, or of a particular trade union, or of one of a number of
particular trade unions, or had refused, or proposed to refuse, to become or
remain a member.[123]
(2) In
paragraph (1)(b) “an appropriate time” means –
(a) a time outside the
employee’s working hours; or
(b) a time within the
employee’s working hours at which, in accordance with arrangements agreed
with or consent given by his or her employer, it is permissible for the
employee to take part in the activities of a trade union,
and for this purpose “working hours”, in relation to an
employee, means any time when, in accordance with his or her contract of
employment, the employee is required to be at work.
(3) Where
the reason, or one of the reasons, for the dismissal was –
(a) the employee’s
refusal, or proposed refusal, to comply with a requirement (whether or not
imposed by the employee’s contract of employment or in writing) that, in
the event of his or her not being a member of any trade union, or of a
particular trade union, or of one of a number of particular trade unions, the
employee must make one or more payments; or
(b) the employee’s
objection, or proposed objection, (however expressed) to the operation of a
provision (whether or not forming part of his or her contract of employment or
in writing) under which, in the event mentioned in sub-paragraph (a), the
employee’s employer is entitled to deduct one or more sums from the
remuneration payable to the employee in respect of his or her employment,
the reason shall be treated as falling within paragraph (1)(c).
(4) References
in this Article to being, becoming or ceasing to remain a member of a trade
union include references to being, becoming or ceasing to remain a member of a
particular branch or section of that union or of one of a number of particular
branches or sections of that trade union; and references to taking part in the
activities of a trade union shall be similarly construed.
66 Selection for
redundancy on grounds related to union membership or activities
Where the reason or principal reason for the dismissal of an
employee was that he or she was redundant, but it is shown –
(a) that
the circumstances constituting the redundancy applied equally to one or more
other employees in the same undertaking who held positions similar to that held
by the employee and who have not been dismissed by the employer; and
(b) that
the reason (or, if more than one, the principal reason) why the employee was
selected for dismissal was one of those specified in Article 65,
the dismissal shall be regarded as unfair for the purposes of this
Part.
67 Dismissal
for family or other reasons[124]
(1) An
employee who is dismissed shall be regarded for the purposes of this Part as
unfairly dismissed if the reason is connected with –
(a) the
pregnancy of the employee;
(b) the
fact that the employee has given birth to or adopted a child;
(c) the
fact that an employee changed or sought to change his or her hours, times or
place of work under Part 3A;
(d) the
fact that the employee took, or sought to take, time off under Chapter 2,
3, 4 or 5 of Part 5A;
(e) the
fact that the employee has not carried out work for her employer during her
maternity leave period or during his or her adoption leave period, or made
contact with his or her employer during that period; or
(f) the
fact that the employee sought to take or avail himself or herself of any of the
benefits of maternity leave, adoption leave or parental leave or the terms of
his or her employment preserved under Part 5A.
(2) An
employee who is dismissed shall also be regarded for the purposes of this Part
as unfairly dismissed if –
(a) the
reason (or, if more than one, the principal reason) is that the employee was
redundant;
(b) it
is shown that the circumstances constituting the redundancy applied equally to
one or more employees in the same undertaking who had positions similar to that
held by the employee and who have not been dismissed by the employer; and
(c) it
is shown that the reason (or, if more than one, the principal reason) for which
the employee was selected for dismissal was a reason connected with any of the
reasons referred to in paragraph (1)(a), (b), (c), (d), (e) or (f).
(3) Paragraph (2)
does not apply in relation to an employee if –
(a) it
is not reasonably practicable for a reason other than redundancy for the
employer (who may be the same employer or a successor of his) to permit the
employee to return to a job which is both suitable for the employee and
appropriate for him or her to do in the circumstances;
(b) an
associated employer offers the employee a job of that kind; and
(c) the
employee accepts or unreasonably refuses that offer.
(4) Where,
on a complaint of unfair dismissal, any question arises as to whether the
operation of paragraph (2) is excluded by the provisions of
paragraph (3), it is for the employer to show that the provisions in
question were satisfied in relation to the complainant.
(5) The
States may by Regulations amend the reasons, or circumstances, in which an
employee shall be regarded for the purposes of this Part as unfairly dismissed.
68 Assertion of
statutory right
(1) Subject
to Article 71, an employee who is dismissed shall be regarded for the
purposes of this Part as unfairly dismissed if the reason (or, if more than
one, the principal reason) for the dismissal is that the employee –
(a) brought proceedings
against the employer to enforce a right of the employee’s which is a
relevant statutory right; or
(b) alleged that the
employer had infringed a right of the employee’s which is a relevant
statutory right.
(2) It
is immaterial for the purposes of paragraph (1) –
(a) whether or not the
employee has the right; or
(b) whether or not the
right has been infringed,
but, for that paragraph to apply, the claim to the right and that it
has been infringed must be made in good faith.
(3) It
is sufficient for paragraph (1) to apply that the employee, without
specifying the right, made it reasonably clear to the employer what was the
right claimed to have been infringed.
(4) The
following are relevant statutory rights for the purposes of this
Article –
(a) any right conferred by
this Law for which the remedy for its infringement is by way of a complaint or
reference to the Tribunal; and
(b) the right conferred by
Article 26.
69 The minimum wage
(1) An
employee who is dismissed shall be regarded for the purposes of this Part as unfairly
dismissed if the reason (or, if more than one, the principal reason) for the
dismissal is that –
(a) any action was taken,
or was proposed to be taken, by or on behalf of the employee with a view to
enforcing, or otherwise securing the benefit of, a right of the employee to
which this Article applies; or
(b) the employer was
prosecuted for an offence under Article 35 as a result of action taken by
or on behalf of the employee for the purpose of enforcing, or otherwise
securing the benefit of, a right of the employee’s to which this Article
applies; or
(c) the employee qualifies,
or will or might qualify, for the minimum wage or for a particular rate of the
minimum wage.
(2) It
shall be immaterial for the purposes of paragraph (1)(a) or
(b) –
(a) whether or not the
employee has the right; or
(b) whether or not the
right has been infringed,
but, for that paragraph to apply, the claim to the right and, if
applicable, the claim that it has been infringed must be made in good faith.
(3) The
following are the rights to which this Article applies –
(a) any right conferred by,
or by virtue of, any provision of Part 4 for which the remedy for its
infringement is by way of a complaint to the Tribunal; and
(b) any right conferred by
Article 26.
70 Redundancy
An employee who is dismissed shall be regarded for the purposes of
this Part as unfairly dismissed if –
(a) the
reason (or, if more than one, the principal reason) for the dismissal is that
the employee was redundant;
(b) it
is shown that the circumstances constituting the redundancy applied equally to
one or more other employees in the same undertaking who held positions similar
to that held by the employee and who have not been dismissed by the employer;
and
(c) it
is shown that the reason (or, if more than one, the principal reason) for which
the employee was selected for dismissal was any one of those specified
in –
(i) Article 68(1)
(read with Article 68(2) and (3)), or
(ii) Article 69(1)
(read with Article 69(2)).
70A Dismissal by
reason of discrimination[125]
An employee who is dismissed shall be regarded for the purposes of
this Part as unfairly dismissed if the reason or principal reason for the
dismissal constitutes an act of discrimination against the employee prohibited
by the Discrimination Law.
71 Replacements
(1) Where
this Article applies to an employee he or she shall be regarded for the
purposes of Article 64(1)(b) as having been dismissed for a substantial
reason of a kind such as to justify the dismissal of an employee holding the
position which the employee held.
(2) This
Article applies to an employee where –
(a) on engaging the
employee the employer informs the employee 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 or partly because of 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) the employer dismisses
the employee in order to make it possible to give work to the other employee.[126]
(3) This
Article also applies to an employee where –
(a) on engaging the
employee the employer informs the employee in writing that his or her
employment will be terminated on the end of a suspension of another employee
from work on medical grounds or maternity grounds; and
(b) the employer dismisses
the employee in order to make it possible to allow the resumption of work by
the other employee.
(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.[127]
(4) Article 64(4)
shall not apply in a case to which this Article applies.
72 Pressure on
employer to dismiss unfairly
(1) This
Article shall apply where there falls to be determined for the purposes of this
Part a question –
(a) as to the reason, or
principal reason, for which an employee was dismissed;
(b) whether the reason or
principal reason for which an employee was dismissed was a reason fulfilling
the requirement of Article 64(1)(b); or
(c) whether an employer
acted reasonably in treating the reason or principal reason for which an
employee was dismissed as a sufficient reason for dismissing the employee.
(2) In
determining the question no account shall be taken of any pressure which by
calling, organising, procuring or financing a strike or other industrial
action, or threatening to do so, was exercised on the employer to dismiss the
employee; and the question shall be determined as if no such pressure had been
exercised.
Exclusion of right
73 Qualifying period
and hours of employment
(1) Subject
to the provisions of paragraphs (2) to (4), Article 61 shall not
apply to the dismissal of an employee unless the employee has been continuously
employed for a period of not less than 26 weeks or such other period as
may be prescribed, computed in accordance with Article 57, ending with the
effective date of termination.
(2) Paragraph (1)
shall not apply if Article 65, 66, 67(1) or (2), 68(1), 69(1), 70 or 70A
applies.[128]
(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).[129]
(3) [130]
(4) [131]
74 Upper age limit[132]
(1) Article 61
shall not apply to the dismissal of an employee if on or before the effective
date of termination the employee has attained –
(a) in a case
where –
(i) in
the undertaking in which the employee was employed there was a common retiring
age for men and women holding the position held by the employee, and
(ii) that retiring age
was higher than pensionable age,
that retiring age;
(b) in a case
where –
(i) in
the undertaking in which the employee was employed there were different
retiring ages for men and women holding the position held by the employee, and
(ii) the higher of the
retiring ages is greater than pensionable age,
that higher retiring age; and
(c) in any other case,
pensionable age.
(2) Paragraph (1)
does not apply if Article 65, 66, 67(1) or (2), 68(1), 69(1), 70 or 70A
applies.
(3) In this
Article “pensionable age” has the same meaning as in Article 1A
of, and Schedule 1AA to, the Social Security (Jersey) Law 1974.
(4) This
Article applies only to a dismissal where the effective date of termination is
before 1st September 2018.
75 Lower age limit
Article 61 shall not apply to the dismissal of an employee
unless on the effective date of termination the employee is no longer of
compulsory school age.
CHAPTER 2
REMEDIES FOR UNFAIR DISMISSAL
76 Complaints to the
Tribunal
(1) Subject
to Article 80(2), a complaint may be presented to the Tribunal against an
employer by any person that he or she was unfairly dismissed by the employer.
(2) Subject
to paragraph (3), the Tribunal shall not consider a complaint under this
Article unless it is presented to the Tribunal –
(a) before the end of the
period of 8 weeks beginning with the effective date of termination; or
(b) within such further
period as the Tribunal considers reasonable in a case where it is satisfied
that it was not reasonably practicable for the complaint to be presented before
the end of that period of 8 weeks.
(3) Where
a dismissal is with notice, the Tribunal shall consider a complaint under this
Article if it is presented after the notice is given but before the effective
date of termination.
(4) In
relation to a complaint which is presented as mentioned in paragraph (3),
the provisions of this Law, so far as they relate to unfair dismissal, shall
have effect as if –
(a) references to a
complaint by a person that he or she was unfairly dismissed by his or her
employer included references to a complaint by a person that the person’s
employer has given the person notice in such circumstances that the person will
be unfairly dismissed when the notice expires;
(b) references to reinstatement
included references to the withdrawal of the notice by the employer;
(c) references to the
effective date of termination included references to the date which would be
the effective date of termination on the expiry of the notice; and
(d) references to an
employee ceasing to be employed included references to an employee having been
given notice of dismissal.
77 Remedies[133]
(1) Where,
on a complaint under Article 76, the Tribunal finds that the grounds of
complaint are well-founded it shall, if the complainant wishes, consider
whether to make a direction for continued employment under Article 77A.
(2) If
no direction is made under Article 77A, the Tribunal shall make an award
of compensation calculated in accordance with Article 77F.
77A Direction for continued
employment[134]
The Tribunal may make a direction for continued employment as
follows –
(a) a
direction that the employer reinstate the complainant in accordance with
Article 77B; or
(b) a
direction that the employer re-engage the complainant in other employment in
accordance with Article 77C.
77B Direction for
reinstatement[135]
(1) A
direction for reinstatement is a direction that the employer shall treat the
complainant in all respects as if the dismissal had not taken place, subject to
paragraphs (3) and (6).
(2) On
making a direction for reinstatement, the Tribunal shall specify –
(a) any
rights and privileges (including seniority and pension rights) which must be
restored to the complainant upon reinstatement; and
(b) the
date by which the direction must be complied with.
(3) A
direction shall include any amount payable by the employer in respect of any
benefit the complainant might reasonably be expected to have had but for the
dismissal, excluding arrears of pay, during the period between the effective
date of termination and the date of reinstatement.
(4) For
the purposes of paragraph (3), “pay” excludes –
(a) any
contributions payable by the employer in respect of the complainant to any
superannuation scheme or any bona fide pension scheme or any other scheme for
the benefit of employees or for the benefit of any spouse or surviving spouse,
or any civil partner or surviving civil partner, of such employees or of
employees’ children or other dependents;
(b) any
bonus the complainant might reasonably be expected to receive during his or her
employment by way of remuneration. [136]
(5) For
the purposes of paragraph (4)(b), “bonus” does not include
tips, commission or similar payments.
(6) If
the complainant would have benefited from an improvement in the terms and
conditions of employment had the dismissal not taken place, a direction for
reinstatement shall require the complainant to benefit from that improvement as
if the improvement were included in the terms and conditions of employment from
the date on which the complainant is reinstated.
77C Direction for
re-engagement[137]
(1) A
direction for re-engagement is a direction, on such terms as the Tribunal
thinks fit, that the complainant be engaged by the employer, or by a successor
of the employer, or by an associated employer as defined in Article 79(7),
in employment comparable to that from which the dismissal took place or other
suitable employment.
(2) On
making a direction for re-engagement, the Tribunal shall specify the terms on
which the re-engagement is to take place, including –
(a) the
identity of the employer;
(b) the
nature of the employment;
(c) the
remuneration for the employment;
(d) any
amount payable by the employer in respect of any benefit the complainant might
reasonably be expected to have had but for the dismissal, excluding arrears of
pay, for the period between the effective date of termination and the date of
reinstatement.
(e) any
rights and privileges (including seniority and pension rights) which must be
restored to the complainant upon reinstatement; and
(f) the
date by which the direction must be complied with.
(3) For
the purposes of paragraph (2)(d), “pay” excludes –
(a) any
contributions payable by the employer in respect of the complainant to any
superannuation scheme or any bona fide pension scheme or any other scheme for
the benefit of employees or for the benefit of any spouse or surviving spouse,
or any civil partner or surviving civil partner, of such employees or of
employees’ children or other dependents; and
(b) any
bonus the complaint might reasonably be expected to receive during his or her
employment by way of remuneration. [138]
(4) For
the purposes of paragraph (3)(b), “bonus” does not include
tips, commission or similar payments.
77D Choice of
direction[139]
(1) If
the complainant wishes the Tribunal to consider whether to make a direction for
continued employment under Article 77A, the Tribunal shall consider first
whether to make a direction for reinstatement.
(2) In
exercising its discretion under Article 77A(a), the Tribunal shall take
into account –
(a) whether
the complainant wishes to be reinstated;
(b) whether
it is practicable for the employer to comply with a direction for
reinstatement; and
(c) where
the complainant caused or contributed to some extent to the dismissal, whether
it would be just to direct the reinstatement.
(3) If
the Tribunal decides not to make a direction for reinstatement it shall then
consider whether to make a direction for re-engagement.
(4) In
exercising its discretion under Article 77A(b) the Tribunal shall take
into account –
(a) any
wish expressed by the complainant as to the nature of the direction to be made;
(b) whether
it is practicable for the employer or a successor of the employer or an
associated employer within the meaning of Article 79(7) (as the case
requires) to comply with a direction for re-engagement; and
(c) where
the complainant caused or contributed to some extent to the dismissal, whether
it would be just to direct that person’s re-engagement and (if so) on
what terms.
(5) Except
in a case where the Tribunal takes into account contributory fault under
paragraph (4)(c) it shall, if it directs re-engagement, do so on terms
which are, so far as is reasonably practicable, as favourable as a direction
for reinstatement.
(6) Where
in any case an employer has engaged a permanent replacement for the
complainant, the Tribunal shall not take that fact into account in determining,
for the purposes of paragraph (2)(b) or (4)(b), whether it is practicable
for the employer to comply with a direction for reinstatement or re-engagement.
(7) Paragraph
(6) does not apply where the employer shows –
(a) that
it was not practicable for the employer to arrange for the complainant’s
work to be done without engaging a permanent replacement; or
(b) that –
(i) the
employer engaged the permanent replacement after the lapse of a reasonable
period without having heard from the complainant whether the complainant wished
to be reinstated or re-engaged, and
(ii) when the employer
engaged the permanent replacement it was no longer reasonable for the employer
to arrange for the complainant’s work to be done except by a permanent
replacement.
77E Enforcement of
direction[140]
(1) The
Tribunal shall make an award of compensation, to be paid by the employer to the
complainant, if –
(a) a
direction under Article 77A is made and the complainant is reinstated or
re-engaged; but
(b) the
terms of the direction are not fully complied with.
(2) The
amount of the compensation shall be such as the Tribunal thinks fit of an amount
up to 26 weeks’ pay.
(3) If
a direction under Article 77A is made but the complainant is not
reinstated or re-engaged, the Tribunal shall make –
(a) an
award of compensation for unfair dismissal calculated in accordance with
Article 77F; and
(b) an
additional award of compensation of an amount up to 26 weeks’ pay,
to be paid by the employer to the complainant.
(4) Paragraph (3)(b)
does not apply where the employer satisfies the Tribunal that it was not
practicable to comply with the direction.
(5) Where
in any case an employer has engaged a permanent replacement for a dismissed
employee, the Tribunal shall not take that fact into account in determining for
the purposes of paragraph (4) whether it was practicable to comply with
the direction for reinstatement or re-engagement unless the employer shows that
it was not practicable to arrange for the dismissed employee’s work to be
done without engaging a permanent replacement.
(6) Where
in any case the Tribunal finds that the complainant has unreasonably prevented
a direction under Article 77A from being complied with, in making an award
of compensation for unfair dismissal the Tribunal shall take that conduct into
account as a failure on the part of the complainant to mitigate loss.
77F Compensation
awards[141]
(1) Subject
to paragraph (3), an award under Article 77(2) or
Article 77E(3)(a) shall be calculated in accordance with an Order made
under paragraph (2).
(2) The
Minister shall by Order specify a scale of compensation which may be awarded by
the Tribunal under Article 77(2) or Article 77E(3)(a).
(3) An
award under Article 77(2) or Article 77E(3)(a) may be reduced by such
amount as the Tribunal considers just and equitable having regard to any of the
circumstances described in paragraphs (4), (5), (7), (8), (9)
and (10).
(4) The
Tribunal finds the complainant has either –
(a) unreasonably
refused an offer by the employer which, if accepted, would have had the effect
of reinstating the complainant in the complainant’s former employment; or
(b) accepted
such offer as is described in sub-paragraph (a) in circumstances where the
Tribunal may reasonably conclude that at the time the offer was accepted the
complainant intended to terminate the employment as soon as reasonably
practicable.
(5) The
Tribunal considers that any conduct of the complainant before dismissal (or,
where the dismissal was with notice, before the notice was given) that
contributed directly to the dismissal was such that reduction of the award is
just and equitable.
(6) For
the purposes of paragraph (5), the Tribunal may take into account conduct
committed whilst in employment which came to light after notice was given or
the act of dismissal occurred.
(7) The
complainant has agreed to receive a payment by way of settlement of the
complaint (whether or not the dismissal is related to redundancy).
(8) The
complainant has been awarded a redundancy payment under any enactment or is
entitled to a redundancy payment under his or her contract of employment.
(9) The
complainant has refused an offer by the employer made before commencement of
proceedings before the Tribunal for an amount equal to the maximum award that
the Tribunal could award in respect of the complainant under Article 77(2)
or Article 77E(3)(a) (as the case requires).
(10) Any
circumstances that the Tribunal considers would be just and equitable to take
into account.
77G Continuity of
employment[142]
If, following a direction under Article 77A, a complainant is
reinstated or re-engaged by his or her employer or by a successor or associated
employer as defined in Article 79(7) (as the case requires), the period
beginning with the effective date of termination and ending with the date of
reinstatement or re-engagement –
(a) does
not break the continuity of the period of employment; and
(b) counts
in computing the period of employment.
77H Transitional
provision[143]
(1) In
this Article, “the specified date” means the date the Employment
(Amendment No. 4) (Jersey) Law 2009[144] comes into force.
(2) If,
before the specified date, a complaint has been presented to the Tribunal under
Article 76 and has not been finally determined, the Tribunal shall deal
with that complaint on or after the specified date as if the Employment
(Amendment No. 4) (Jersey) Law 2009 had not come into force.
CHAPTER 3
SUPPLEMENTARY
78 Death of employer
or employee
(1) Where –
(a) an employer has given
notice to an employee to terminate the employee’s contract of employment;
and
(b) before that termination
the employee or the employer dies,
this Part shall apply as if the contract had been duly terminated by
the employer by notice expiring on the date of the death.
(2) Where –
(a) an employee’s
contract of employment has been terminated;
(b) by virtue of
Article 63(2) or (4) a date later than the effective date of termination
as defined in paragraph (1) of that Article is to be treated for certain
purposes as the effective date of termination; and
(c) the employer or the
employee dies before that date,
Article 63(2) or (4) shall apply as if the notice referred to
in that paragraph as required by Article 56 expired on the date of the
death.
(3) Where
an employee has died, if the Tribunal finds that the grounds of the complaint
are well-founded, the case shall be treated as falling within Article 77.
PART 7a[145]
DISCIPLINARY AND GRIEVANCE HEARINGS
78A Right to be
represented
(1) This
Article applies where –
(a) an
employer requires or requests an employee to attend a disciplinary or grievance
hearing; and
(b) the
employee tells the employer that he or she wishes to be represented at the hearing.
(2) Where
this Article applies, the employer must permit the employee to be represented
at the hearing by one representative chosen by the employee who is –
(a) an
employee or an official of a trade union; or
(b) another
employee of the employer,
if the location of the proposed representative at the time of the
request does not make the request unreasonable.
(3) The
employer must permit the employee’s representative –
(a) to
address the hearing so as to put the employee’s case, to sum up that case
and to respond on the employee’s behalf to any view expressed at the
hearing; and
(b) to
confer with the employee during the hearing.
(4) However,
paragraph (3) does not require the employer to permit the employee’s
representative –
(a) to
answer questions on behalf of the employee;
(b) to
address the hearing if, at the hearing, the employee indicates that he or she
does not wish the representative to do so; or
(c) to
use the powers conferred by that paragraph in a way that prevents the employer
from explaining his or her case or prevents any other person at the hearing
from making a contribution to it.
(5) If –
(a) an
employee has a right under this Article to be represented at a hearing;
(b) the
employee’s chosen representative will not be available at the time
proposed for the hearing by the employer; and
(c) the
employee proposes an alternative time within the 5 working days
immediately after the day proposed by the employer that is reasonable for both
parties,
the employer must postpone the hearing to the time proposed by the
employee.
(6) Where
the employee’s chosen representative is another employee of the
employer –
(a) the
employer must permit the representative to take a reasonable amount of time off
during working hours, without loss of pay, to prepare for the hearing and to
represent the employee at the hearing; and
(b) any
activities of the representative undertaken in accordance with this Article
shall be taken to be activities of a trade union to which Article 65(1)(b)
applies.
(7) In
this Article –
“disciplinary hearing” means a hearing that could result
in –
(a) the
administration of a formal written warning to an employee by his or her
employer;
(b) the
taking of some other formal disciplinary action in respect of an employee by
his or her employer; or
(c) the
confirmation of a warning administered under paragraph (a) or the
confirmation of any other disciplinary action taken under paragraph (b);
“grievance hearing” means a hearing that concerns the
performance of a duty by an employer in relation to an employee;
“trade union” means a trade union registered in
accordance with the Employment Relations (Jersey) Law 2007;
“working day” means a business day as defined by the
Public Holidays and Bank Holidays (Jersey) Law 1951[146].[147]
78B Complaints to Tribunal
(1) An
employee may present a complaint to the Tribunal that his or her employer has
failed, or threatened to fail, to comply with Article 78A(2), (3) or (5).
(2) The
Tribunal shall not consider such a complaint unless it is presented
within –
(a) the
8 weeks immediately following the failure or threat; or
(b) such
further period as the Tribunal may, in the interests of justice, consider
reasonable.
(3) If
the Tribunal finds that a complaint under this Article is well-founded it
must –
(a) order
the employer to pay compensation to the employee of an amount not exceeding 4
weeks’ pay; and
(b) declare
that any action taken against the employee by the employer, other than the
dismissal of the employee, is void.[148]
PART 8
CONTRACTING OUT ETC. AND REMEDIES
79 Restrictions on
contracting out
(1) A
provision in a contract (whether a relevant agreement or not) shall be void in
so far as it purports –
(a) to exclude or limit the
operation of any provision of this Law; or
(b) to preclude a person
from bringing any proceedings under this Law before the Tribunal,
except as permitted by this Law.
(2) Paragraph
(1) shall not apply to an agreement to refrain from instituting or continuing
proceedings before the Tribunal where a conciliation officer has taken action
under Article 4 of the Jersey Advisory
and Conciliation (Jersey) Law 2003[149] or if the conditions
regulating compromise agreements under this Law are satisfied in relation to
the agreement.
(3) For
the purposes of paragraph (2) the conditions regulating compromise
agreements under this Law are that –
(a) the agreement must be
in writing;
(b) the agreement must
relate to the particular proceedings;
(c) the employee must have
received advice from a relevant independent adviser as to the terms and effect
of the proposed agreement and, in particular, its effect on the
employee’s ability to pursue his or her rights before the Tribunal;
(d) there must be in force,
when the adviser gives the advice, a contract of insurance, or an indemnity
provided for members of a profession or professional body, covering the risk of
a claim by the employee in respect of loss arising in consequence of the
advice;
(e) the agreement must
identify the adviser; and
(f) the agreement
must state that the conditions regulating compromise agreements under this Law
are satisfied.
(4) A
person is a relevant independent adviser for the purposes of
paragraph (3)(c) –
(a) if the person is a
qualified lawyer;
(b) if the person is an
officer, official, employee or member of a trade union who has been certified
in writing by the trade union as competent to give advice and is authorized to
do so on behalf of the trade union;
(c) if the person works at
an advice centre (whether as an employee or a volunteer) and has been certified
in writing by the centre as competent to give advice and is authorized to do so
on behalf of the centre; or
(d) if the person is a
person of a description specified in an Order made by the Minister.
(5) A
person shall not be a relevant independent adviser for the purposes of paragraph (3)(c)
in relation to the employee –
(a) if the person is, is
employed by or is acting in the matter for the employer or an associated
employer;
(b) in the case of a person
within paragraph (4)(b) or (c), if the trade union or advice centre is the
employer or an associated employer;
(c) in the case of a person
within paragraph (4)(c), if the employee makes a payment for the advice
received from the person; or
(d) in the case of a person
of a description specified in an Order under paragraph (4)(d), if any
condition specified in the Order in relation to the giving of advice by persons
of that description is not satisfied.
(6) In
paragraph (4)(a) “qualified lawyer” means a solicitor or
advocate who is entitled to practise as such under Article 2 of the Advocates and Solicitors (Jersey) Law 1997[150].
(7) For
the purposes of this Article any 2 employers shall be treated as associated
if –
(a) one is a company of
which the other (directly or indirectly) has control; or
(b) both are companies of
which a third person (directly or indirectly) has control,
and “associated employer” shall be construed
accordingly.
80 Remedy for
infringement of rights under this Law and under contracts of employment
(1) Subject
to Article 76, and notwithstanding Article 86, an employer or an
employee may bring proceedings for infringement of any of the rights conferred
by this Law by way of complaint or reference to the Tribunal, and
Article 86(3) shall apply to any such reference or complaint.
(2) Nothing
in this Law shall prevent an employer or an employee from bringing proceedings
in the courts for breach of a contract of employment, and on commencement of
such proceedings any proceedings before the Tribunal shall be discontinued.
(3) On
discontinuance of proceedings before the Tribunal under paragraph (2) the
party bringing proceedings in the courts shall indemnify the other party in
respect of the other party’s costs in relation to the discontinued
proceedings before the Tribunal in such sum as the Court shall award.
PART 9
THE TRIBUNAL
81 Establishment of
the Tribunal[151]
(1) There
is established a Tribunal to be known as the Jersey Employment and
Discrimination Tribunal.
(2) The
Tribunal shall exercise the jurisdiction conferred on it by or
under –
(a) this
Law;
(b) the
Discrimination Law; and
(c) the
Employment Relations (Jersey) Law 2007[152].
(3) Articles 83,
84, 89, 90, 91, 92, 93, 94 and 95 shall apply
to the Tribunal and to proceedings before it when it is exercising jurisdiction
conferred on it by or under the Discrimination Law or the Employment Relations (Jersey) Law 2007 as they
apply to the Tribunal and to proceedings before it when it is exercising the
jurisdiction conferred on it by or under this Law.
82 Constitution,
membership and administration of the Tribunal
(1) The
States may by Regulations provide for the constitution, membership and
administration of the Tribunal.
(2) Regulations
made under paragraph (1) may provide for –
(a) the appointment of the
Chairman of the Tribunal;
(b) the appointment of
members of the Tribunal;
(c) the terms of membership
of the Tribunal;
(d) the composition of the
body of members to hear applications to the Tribunal;
(e) the remuneration and
reimbursement of expenses of members of the Tribunal; and
(f) such matters as
may be necessary or convenient for the administration of the Tribunal.
(3) The
Regulations may provide for the remuneration of members of the Tribunal to be
determined by the Minister by Order.[153]
83 Limitation
of civil liability[154]
A conciliation officer, the Secretary of the Tribunal or a member of
the Tribunal shall not be liable in damages for anything done or omitted in the
discharge, or purported discharge of any functions under this Law, unless it is
shown that the act or omission was in bad faith.
84 Declaration of
interests, etc.
(1) If
a member of the Tribunal has a personal or pecuniary interest, direct or
indirect, in a matter which is the subject of an application or reference to a
Tribunal on which the member is sitting, the member shall, as soon as
practicable after the commencement of the hearing of the application or
reference or after the disclosure of the matter in which the member has such an
interest, disclose the fact and shall not take any further part in the hearing
or in the decision reached as the result of the hearing.
(2) A
person who fails to comply with the provisions of paragraph (1) shall be
guilty of an offence and liable on conviction to a fine of level 3 on the
standard scale.[155]
(3) For
the purposes of paragraph (1) a member of the Tribunal shall be treated as
having an indirect pecuniary interest if the member or any nominee of the
member is a partner or an adviser of, or is a member, employee or adviser of a
company or other body which is, or is associated with, a party to the issue
which is the subject of the application or reference.
(4) Paragraph (1)
shall not apply to an interest in a matter which a member of the Tribunal has
as a member of the public.
(5) Where
a member of the Tribunal has an indirect pecuniary interest in a matter by reason
only of a beneficial interest in the securities of a company or other body and
the nominal value of those securities does not exceed one thousandth of the
total nominal value of the issued share capital of the company or the body,
paragraph (1) shall not prohibit the member from taking part in the
hearing and the reaching of the decision as the result of the hearing.
85 Secretary
of the Tribunal[156]
(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.
86 Jurisdiction in respect of individual employment disputes[157]
(1) Proceedings
may be brought before the Tribunal in respect of an employment dispute to which
this Article applies by any party to the dispute, whether or not it has been
the subject of conciliation by JACS.
(2) Proceedings
may be referred to the Tribunal in respect of an employment dispute to which
this Article applies by JACS, a conciliation officer designated by JACS as such
under Article 5 of the Jersey Advisory
and Conciliation (Jersey) Law 2003[158], or by a person appointed by
JACS under Article 4 of that Law to offer assistance to the parties.
(3) This
Article shall apply to an individual employment dispute which involves a claim
in respect of which a court in Jersey would under the law for the time being in
force have jurisdiction, except an employment dispute which –
(a) has been the subject of
an award after arbitration in accordance with Article 6 of the Jersey Advisory and Conciliation (Jersey)
Law 2003;
(b) includes a claim for
damages for personal injuries; or
(c) includes a claim for
breach of a contractual term –
(i) requiring
the employer to provide living accommodation for the employee,
(ii) imposing an
obligation on the employer or the employee in connection with living
accommodation,
(iii) relating to
intellectual property,
(iv) imposing an obligation
of confidence, or
(v) which is a covenant in
restraint of trade.
(4) [159]
(5) Subject
to paragraph (4), this Article shall apply to such individual employment
disputes as may be provided by this Law or any other enactment.[160]
(6) Subject
to Article 87 the Tribunal shall not in any proceedings order the payment
to an individual of an amount exceeding such sum as may be prescribed from time
to time.
87 Regulations
The States may by Regulations –
(a) provide
that proceedings in respect of a claim, other than proceedings which may be
brought in accordance with Article 86, may be brought before the Tribunal;
(b) impose
exceptions, conditions and reservations in respect of proceedings which may be
brought before the Tribunal under this Law; and
(c) amend
the period for making a reference or presenting a complaint (as the case may
be) to the Tribunal, specified in any of the relevant provisions of this Law.[161]
88 Awards in individual employment disputes[162]
(1) Where
proceedings in respect of an individual employment dispute have been brought
before, or referred to, the Tribunal and the Tribunal is of opinion that there
are recognized terms and conditions applicable to the case and that the
employer or the employee concerned is not observing –
(a) those terms and
conditions; or
(b) terms and conditions of
employment which, in the opinion of the Tribunal, are not less favourable to
the employee than those terms and conditions,
it may by its award require the employer or the employee to observe
the recognized terms and conditions or such terms and conditions of employment
as may be determined by it to be not less favourable to the employee than the
recognized terms and conditions.[163]
(2) Where
an award has been made by the Tribunal, as from the date of the award or from
such other date as the Tribunal may direct, not being earlier than the date on
which the employment dispute to which the award relates first arose, it shall
be a term of the contract between the employer and the employee
or employees to whom the
award applies that the terms and conditions of employment to be observed under
the contract shall be in accordance with the award until varied by subsequent
agreement between the parties or by a subsequent award of the Tribunal, or
until different terms and conditions of employment in respect of the employee
or employees concerned are
settled through the machinery of negotiation, mediation, conciliation or
arbitration for the settlement of terms and conditions of employment in the
trade or industry or the undertaking in which the employee
or those employees are employed.[164]
(3) Where –
(a) proceedings in respect
of an individual employment dispute have been brought before, or referred to,
the Tribunal;
(b) the dispute is in
relation to money which may be due to be paid under the terms of a contract of
employment entered into between the parties; and
(c) the Tribunal determines
that a sum of money is due to one party from the other,
the Tribunal may by its award require that sum of money to be paid.
(4) Where
proceedings in respect of an individual employment dispute, or proceedings for
infringement of any of the rights conferred by this Law, have been brought
before, or referred to, the Tribunal, the Tribunal may by its award require any
person to take, or refrain from taking, any action specified in the award.[165]
(5) However,
no award shall, whether by way of –
(a) a
requirement as to the specific performance or specific implementation of a
contract of employment; or
(b) a
requirement that a person should refrain from committing a breach or threatened
breach of such a contract,
have the effect of compelling an employee to do any work or attend
at any place for the doing of any work.[166]
89 Procedure
(1) The
Tribunal shall have, as regards the attendance, swearing and examination of
witnesses, the production and inspection of documents, and other matters
necessary or proper for the due exercise of its jurisdiction, all such powers,
rights and privileges as are vested in the Royal Court and, without limiting
the generality of the preceding provisions of this Article, may –
(a) issue a summons to any
person (including a party to the proceedings) requiring the person to appear at
the time and place mentioned therein to testify to all matters within the
person’s knowledge relative to the subject or proceedings before the
Tribunal, and to bring with him or her and produce any document, book or papers
that the person has in his or her possession or under his or her control
relative to such subject;
(b) administer oaths and
examine any person on oath, affirmation or otherwise;
(c) require a party in
writing to furnish to the Tribunal a written answer to any question if it
considers –
(i) that
answer of the party to that question may help to clarify any issue likely to
arise for determination in the proceedings, and
(ii) that it would be
likely to assist the progress of the proceedings for that answer to be
available to the Tribunal before the hearing,
and appoint the time within which the answer is to be furnished;
(d) notwithstanding
the offences in Article 95(1)(b) and (1)(c)(ii), draw an adverse inference
from the failure, without reasonable excuse of any witness to attend or of any
person to produce any documents, when so requested;
(e) for
the purposes of making a determination, take independent expert advice.[167]
(2) In
this Article “document” includes information held in electronic
form.
90 Publicity
(1) Subject
to paragraph (2) or to an Order made under Article 91(3), the
Tribunal shall sit in public.[168]
(2) Despite
paragraph (1) the Tribunal may sit in private for the purposes of hearing
evidence from any person which in the opinion of the Tribunal is likely to
consist of –
(a) information which the
person could not disclose without contravening a prohibition imposed by or
under any enactment;
(b) information which has
been communicated to the person in confidence or which the person has otherwise
obtained in consequence of the confidence reposed in him or her by another
person; or
(c) information, the
disclosure of which would cause substantial injury to any undertaking of the
person, or any undertaking in which the person works, for reasons other than
its effect on negotiations with respect to the terms of employment, or the
conditions of labour, of the persons in the employment of the undertaking in
question.
(3) In
any case which involves allegations of sexual misconduct the Tribunal may at
any time before it issues its decision, either on the application of a party or
of its own motion make a restricted reporting order prohibiting the publication
in Jersey of identifying matter in a written publication available to the public
or in a programme broadcast in Jersey by television, radio or any other
telecommunications or internet service.
(4) When
the Tribunal makes an order under paragraph (3) and that case is being
dealt with together with any other proceedings, the Tribunal may direct that
the order shall apply also in relation to those other proceedings or such part
of them as the Tribunal may direct.
(5) The
Tribunal shall not make an order under paragraph (3) unless it has given
each party an opportunity to advance either written or oral argument.
(6) The
Tribunal may revoke an order under paragraph (3) at any time.
(7) If
any identifying matter is published in contravention of an order under
paragraph (3) –
(a) in the case of
publication in a newspaper or periodical, any proprietor, any editor and any
publisher of the newspaper or periodical;
(b) in the case of
publication in any other written form, the person publishing the matter; and
(c) in the case of matter
published in a broadcast programme –
(i) any body corporate engaged in providing the service in
which the programme is included, and
(ii) any persons
having functions in relation to the programme corresponding to those of an
editor of a newspaper,
shall be guilty of an offence and liable to a fine.
(8) Where
a person is charged with an offence under paragraph (7) it shall be a
defence to prove that at the time of the alleged offence the person was not
aware and neither suspected nor had reason to suspect, that the publication or
programme in question was of, or included, the matter in question.
(9) [169]
(10) [170]
(11) In this
Article –
“identifying matter”, in relation to a person, means any
matter likely to lead members of the public to identify him or her as a person
affected by, or as a party to, the case in question;
“sexual misconduct” means the commission of a sexual
offence, sexual harassment or other adverse conduct, of whatever nature,
related to sex, and conduct is related to sex whether the relationship with sex
lies in the character of the conduct or in its having reference to the sex or
sexual orientation of the person at whom the conduct is directed; and
“sexual offence” means –
(a) an offence under the Sexual Offences (Jersey) Law 2018[171];
(b) any other offence that is a relevant offence within the meaning of
the Sex Offenders (Jersey) Law 2010[172];
(c) an offence of attempting to commit an offence in
sub-paragraph (a) or (b);
(d) an offence of conspiracy or incitement to commit an offence in
sub-paragraph (a) or (b); or
(e) an
offence of aiding, abetting, counselling or procuring an offence in
sub-paragraph (a), (b) or (c).[173]
91 Conduct of
hearings
(1) Where
a complainant or respondent attend a hearing before the Tribunal, they may –
(a) represent
themselves; or
(b) be
represented or accompanied by any person of their choice.[174]
(2) Part
2 of the Arbitration (Jersey) Law 1998[175] shall not apply to any
proceedings before the Tribunal.
(3) The
Minister may by Order make such provision as appears to the Minister to be
necessary or expedient with respect to proceedings before the Tribunal.
(4) Orders
made under paragraph (3) may, in particular, include
provision –
(a) for
the reference of employment disputes to the Tribunal;
(b) for
the reference of complaints brought under the Discrimination Law;
(c) for
the manner in which and time within which proceedings may be brought before the
Tribunal;
(d) for
the filing and service of documents in relation to proceedings brought before
the Tribunal;
(e) for
the completion, filing, and service by the complainant and respondent of forms
containing such information as may be prescribed in the Order, for the purposes
of adducing the facts of the dispute or complaint;
(f) for
the hearing, investigation and determination of –
(i) employment
disputes, and
(ii) complaints
brought under the Discrimination Law;
(g) for
the procedures to be adopted where it appears to the Tribunal that proceedings
brought before it to which Article 86 applies relate to any act which is
prohibited by the Discrimination Law, where a complaint in respect of the act
would be referable to the Tribunal under that Law;
(h) for
the procedures to be adopted where it appears to the Tribunal that a hearing
before it under the Discrimination Law concerns an employment dispute to which
Article 86 applies;
(i) for
directing the Tribunal as to the circumstances in which a hearing is to be
heard in private;
(j) for
the manner in which proceedings in respect of a claim before the Tribunal may
be disposed of;
(k) for
the award of costs or expenses; and
(l) for
the registration and proof of decisions, orders and awards of the Tribunal.[176]
(5) The
reference of employment disputes or complaints mentioned in paragraph 4(a)
and (b) includes the procedures to be followed by the Secretary of the Tribunal
in administering the referral and recording of those disputes and complaints.[177]
(6) In
this Article, “documents” includes statements of evidence and
information held in electronic form.[178]
92 Expenses
All expenses incurred in the administration of this Part shall,
subject to the provisions of any Regulations made under Article 87, be
defrayed out of the annual income of the States.
93 Enforcement[179]
(1) Where
the Tribunal has ordered a person to pay to a complainant –
(a) compensation; or
(b) a sum of money, and
that compensation or sum
of money is not paid, the complainant may apply to the Court to recover the
compensation or sum as a civil debt.
(2) In
paragraph (1), “Court” means –
(a) the Petty Debts Court
if the amount of compensation or other sum of money does not exceed the amount
in respect of which the Petty Debts Court has jurisdiction; or
(b) the Royal Court, in any
other case.
(3) An
order of the Tribunal to take any action or to refrain from taking any action,
may (subject to Article 88(5)) be enforced on application by the complainant
to the Royal Court.
94 Appeals[180]
(1) A
person aggrieved by a decision or order of the Tribunal may, on a question of
law only, appeal to the Royal Court by applying to the Tribunal for leave to
appeal.
(2) An
application to the Tribunal for leave to appeal must be made before the end of
the period of 28 days beginning with the date of the Tribunal’s
decision or order.
(3) However,
the Tribunal may make an order varying the 28 day period –
(a) of
its own motion; or
(b) on
application by the person aggrieved, which application may be made either
within the 28 day period or after its expiry.
(4) A
person aggrieved by the Tribunal’s –
(a) decision
to refuse an application under paragraph (3)(b); or
(b) order
under paragraph (3),
may appeal to the Royal Court on the ground that the decision or
order was unreasonable, and the Court may make such order as it thinks fit,
including granting or refusing leave to appeal.
(5) The
Tribunal may order a stay of any decision or order to which the application for
leave to appeal relates –
(a) pending
the Tribunal’s determination of that application; or
(b) pending
further order of the Royal Court where –
(i) the
Tribunal grants or refuses leave to appeal, or
(ii) paragraph (3)
applies.
(6) Where
the Tribunal refuses leave to appeal, the person aggrieved may apply to the
Royal Court for leave to appeal.
95 Offences
(1) A
person who without reasonable excuse –
(a) in proceedings before
the Tribunal –
(i) makes
a statement which the person knows or believes to be false, misleading or
deceptive in a material particular,
(ii) recklessly makes
a statement which is false, misleading or deceptive in a material particular,
or
(iii) produces or furnishes
or causes or permits to be produced or furnished any information or document
which the person knows or believes to be false, misleading or deceptive in a
material particular;
(b) on being duly summoned
as a witness before the Tribunal, fails without reasonable excuse to attend;
(c) on attending before the
Tribunal as a witness, fails, when legally required to do so –
(i) to
take the oath or affirmation,
(ii) to produce any
document in his or her possession, custody or power, or
(iii) subject to
paragraph (2), to answer any question put to him or her; or
(d) does any other thing
before the Tribunal which, if done before the Royal Court, would constitute a
contempt of court,
shall be guilty of an offence, and shall be liable to imprisonment
for a term of 2 years and to a fine.
(2) A
person giving evidence to the Tribunal shall not be compellable to answer any
question tending to incriminate himself or herself.
(3) In
this Article “document” includes information held in electronic
form.
PART 10
MISCELLANEOUS
96 Appointment of
officers
(1) The
Minister –
(a) may appoint officers to
act for the purposes of this Law all of whom shall be States’ employees
within the meaning of Article 2 of the Employment of States of Jersey Employees
(Jersey) Law 2005[181]; and
(b) may,
instead of or in addition to appointing any officer under sub-paragraph (a),
arrange with any other Minister or with any body
performing functions on behalf of the States, that officers in an
administration of the States for which that Minister is assigned
responsibility, or officers of that body, shall act for those purposes.[182]
(2) When
acting for the purposes of this Law, an officer shall, if so required, produce
some duly authenticated document showing his or her authority so to act.
(3) If
it appears to an officer that any person with whom the officer is dealing while
acting for the purposes of this Law does not know that he or she is an officer
so acting, the officer shall identify himself or herself as such to that
person.
97 Powers of
officers
(1) An
officer acting for the purposes of this Law shall have power for the performance
of his or her duties –
(a) to require the
production by a relevant person of any records required to be kept and
preserved in accordance with this Law or Regulations made under this Law and to
inspect and examine those records and to copy any material part of them;
(b) to require a relevant
person to furnish to the officer (either alone or in the presence of any other
person, as the officer thinks fit) an explanation of any such records;
(c) to require a relevant
person to furnish to the officer (either alone or in the presence of any other
person, as the officer thinks fit) any additional information known to the
relevant person which might reasonably be needed in order to establish whether
this Law, or any notice under this Law, is being or has been complied with; and
(d) to visit any relevant
premises in order to exercise any power conferred on the officer by
sub-paragraphs (a) to (c).
(2) Without
prejudice to paragraph (1) or to any power conferred by this Law, if the
Bailiff is satisfied by information on oath by an officer acting for the
purposes of this Law that there are reasonable grounds for suspecting
that–
(a) there
are records such as are referred to in paragraph (1)(a) kept in any
premises; or
(b) there
is, on any premises, any information, article or record, held in any form, that
may be relevant to or associated with information such as is referred to in
sub-paragraph (a),
the Bailiff may grant a warrant authorizing that officer, or any
other person named in the warrant, to enter and search any premises within one
month of the date on which the warrant was granted.[183]
(3) Where
a warrant has been granted under paragraph (2), the officer or person
named in the warrant shall have power to enter those premises at any time by
day, or by night if accompanied by a police officer, and to search for, seize
and detain or remove any such information, article or record or any documents
relating to any such thing, article or record and, so far as is reasonably
necessary for the purpose of such entry, search, seizure, detention or removal,
to break open any door, window or container and force and remove any other
impediment or obstruction.
(4) No
person shall be required under paragraph (1)(b) or (c) to answer any
question or furnish any information which might incriminate the person
or –
(a) if
married, the person’s spouse; or
(b) if
in a civil partnership, the person’s civil partner.[184]
(5) The
powers conferred by paragraph (1) shall include power, on reasonable
written notice, to require a relevant person –
(a) to produce any such
records as are mentioned in paragraph (1)(a) to an officer at such time
and place as may be specified in the notice; or
(b) to attend before an
officer at such time and place as may be specified in the notice to furnish any
such explanation or additional information as is mentioned in
paragraph (1)(b) or (c).
(6) In
this Article “relevant person” means any person whom an officer
acting for the purposes of this Law has reasonable cause to believe to
be –
(a) the employer or former employer
of an employee;
(b) a person who for the
purposes of Article 36 is the agent or the principal;
(c) a person who supplies
work to an individual who qualifies for the minimum wage;
(d) an employee, servant or
agent of a person falling within paragraph (a), (b) or (c); or
(e) a person who qualifies
for the minimum wage.
(7) In
this Article “relevant premises” means any premises which an
officer acting for the purposes of this Law has reasonable cause to believe to
be –
(a) premises at which an
employer carries on business; or
(b) premises which an
employer uses in connection with his or her business (including any place used,
in connection with that business, for giving out work to home workers, within
the meaning of Article 36).
(8) A
person who –
(a) wilfully delays or
obstructs an officer acting for the purpose of this Law in the exercise of any
power under this Law; or
(b) refuses or
neglects –
(i) to
answer any question or to furnish any information,
(ii) to furnish any
information, or
(iii) to produce any document
(including a document held in electronic form),
when required to do so under this Article,
shall be guilty of an offence and liable to a term of imprisonment
2 years and to a fine.
98 Transfer of
information
(1) Information
obtained by the Comptroller of Taxes or by a person appointed under
Article 8 of the Income Tax (Jersey)
Law 1961[185] in the course of carrying
out a function of the Comptroller of Taxes under that Law shall, with the
approval of the Minister for Treasury and Resources be supplied by the
Comptroller of Taxes to an officer appointed or acting under Article 96,
or to the Attorney General, for the purposes of preventing, detecting, or
bringing a prosecution in respect of an offence under this Law.[186]
(2) Information
obtained by an officer who is authorized under Article 34 of the Social Security (Jersey) Law 1974[187] in the course of carrying
out his or her functions or duties under that Law may be supplied by the
officer to an officer appointed or acting under Article 96, or to the
Attorney General, for the purposes of preventing, detecting, or bringing a
prosecution in respect of an offence under this Law.
99 Information
obtained by officers
(1) This
Article shall apply to any information obtained by an officer acting for the
purposes of this Law, whether by virtue of Article 97(1)(a) or (b).
(2) Information
to which this Article applies vests in the Minister.
(3) Information
to which this Article applies may be used for any purpose relating to this Law
by –
(a) the Minister; or
(b) any relevant authority
whose officer obtained the information.
(4) Information
to which this Article applies –
(a) may be supplied by, or
with the authorization of, the Minister to any relevant authority for any
purpose relating to this Law; and
(b) may be used by the
recipient for any purpose relating to this Law.
(5) Information
supplied under paragraph (4) –
(a) shall not be supplied
by the recipient to any other person or body unless it is supplied for the
purposes of any civil or criminal proceedings relating to this Law; and
(b) shall not be supplied
in those circumstances without the authorization of the Minister.
(6) This
Article shall not limit the circumstances in which information may be supplied
or used apart from this Article.
(7) Paragraph
(2) shall not affect the title or rights of –
(a) any person whose
property the information was immediately before it was obtained as mentioned in
paragraph (1); or
(b) any person claiming
title or rights through or under such a person otherwise than by virtue of any
power conferred by or under this Law.
(8) In
this Article “relevant authority” means any Minister or other body
which is party to arrangements made with the Minister which are in force under
Article 96(1)(b).
100 Publicity
(1) The
Minister shall arrange for information about this Law and Regulations and
Orders under it to be published by such means as appear to the Minister to be
most appropriate for drawing the provisions of this Law and those Regulations
and Orders to the attention of persons affected by them.
(2) The
information required to be published under paragraph (1) includes, in
particular, information about –
(a) the hourly rate for the
time being prescribed under Article 16;
(b) the method or methods
to be used for determining under Article 17 the hourly rate at which a
person is to be regarded for the purposes of this Law as remunerated by his or
her employer in respect of his or her work in any pay reference period; and
(c) the methods of
enforcing rights under this Law.
101 Application[188]
(1) This
Law applies to an employment which requires the person to work wholly or mainly
in Jersey.
(2) This
Law also applies to an employment on a Jersey ship unless –
(a) the
employment is wholly outside Jersey; or
(b) the
employee is not ordinarily resident in Jersey.
(3) In
this Article –
(a) “Jersey”
includes the territorial waters adjacent to Jersey; and
(b) “Jersey
ship” has the meaning given in Article 2 of the Shipping (Jersey)
Law 2002[189].
102 Law governing employment
For the purposes of this Law it is immaterial
whether the law which (apart from this Law) governs any person’s
employment is the law of Jersey or not.
103 Offences by bodies corporate
(1) Where
an offence under this Law, which has been committed by a limited liability
partnership or a body corporate, is proved to have been committed with the
consent or connivance of, or to be attributable to any neglect on the part
of –
(a) a partner of the
partnership, or a director, manager, secretary or other similar officer of the
body corporate; or
(b) a person who was
purporting to act in any such capacity,
he or she, as well as the partnership or body corporate, shall be
guilty of that offence and be liable to be proceeded against and punished
accordingly.
(2) Where
the affairs of a body corporate are managed by its members, paragraph (1)
shall apply in relation to the acts and defaults of a member in connection with
the member’s functions of management as if the member were a director of
the body corporate.
104 Regulations and Orders
(1) The
Minister may by Order make provision for the purpose of carrying this Law into
effect and, in particular, but without prejudice to the generality of the
foregoing, for or with respect to any matter that may be prescribed or provided
for under this Law by Order of that Minister.
(2) The
Minister may by Order make provision for this Law to apply, with or without
modifications, or to cease to apply to a prescribed class or classes of
individuals either as employers or employees.
(3) The
States may by Regulations make provision for the purpose of carrying this Law
into effect and, in particular, but without prejudice to the generality of the
foregoing, for or with respect to any matter that may be specified or provided
for under this Law by Regulations.
(3A) The States may
by Regulations amend Part 3A.[190]
(3B) The States may
by Regulations amend Articles 6, 57(2) or 73(4).[191]
(4) Except
to the extent that this Law makes provision to the contrary, an Order or
Regulations made under this Law may –
(a) make different
provision in relation to different cases, circumstances or descriptions of
person; and
(b) apply in respect of
particular persons or particular cases or particular classes of persons or
particular classes of cases, and define a class by reference to any
circumstances whatsoever.
(5) Paragraph
4(a) shall not have effect in relation to Orders under Article 16(3).
(6) Regulations
made under this Law may create an offence punishable by a fine up to level 3 on
the standard scale.[192]
(7) Regulations
made under this Law may contain provisions modifying any enactment in
consequence of the enactment of this Law.
(8) The
Subordinate Legislation (Jersey)
Law 1960[193] shall apply to Orders made
under this Law.
(9) The
power to make Regulations or Orders includes power to make any supplementary,
incidental, consequential, transitional, transitory or saving provision which
appear to the States or the Minister, as the case may be, to be necessary or
expedient for the purposes of the Regulations or Order.[194]
105 Transitional provisions and
savings
Schedule 3 shall have effect.
106 Citation
This Law may be cited as the Employment (Jersey) Law 2003.