Mourant Ozannes: The little A to Z of employment law book

to

The little

A

Z of employment law

This is a (very) brief overview of employment law in Guernsey and Jersey. It is not intended to be legal advice and should be used as a guide only.

We hope you enjoy this informative little book about employment law in the Channel Islands.

Index A to M A Annual leave 5 B Breach of contract 6 C Compromise agreements 7 D Data protection 8 E Equal opportunities and discrimination 10 F Family friendly rights 12 G Grievances 16 H Hours of work 18 I Interactive and social media 20 J Job advertisements and recruitment 21 K Keeping employees motivated 23 L Long term absence 24 M Maternity/Paternity leave 26

Index N to Z N Notice 29 O Overpayments 31 P Post-employment restraints 32 Q Qualifying and limitation periods 34 R Redundancy 36 S Stress 38 T Terms and conditions 40 U Unfair dismissal 42 V Variations to contract 46 W Wages 47 X X-rated conduct 49 Y Why have a staff handbook or policies and procedures?

50 Z Zero hours contracts 51

Employment issues arise even before an employment relationship commences.

Did you know that it is unlawful to discriminate against a candidate in their recruitment, selection or non-selection on the basis of their sex or marital status, in Guernsey, and on the basis of race, in Jersey.* *with effect from 1st September 2014.

4

mourantozannes.com/employment

Annual leave (Guernsey) There is no statutory entitlement to annual leave in Guernsey. Any entitlement will be set out in an employee’s contract of employment. Similarly, there is no statutory entitlement in respect of recognised bank and public holidays, although it is standard practice that such dates will be allowed as paid leave.

Annual leave (Jersey) The Employment (Jersey) Law 2003 provides a minimum paid annual leave entitlement of two weeks in each holiday year. However, many employers provide for longer periods of entitlement in an employee’s contract of employment. There is also a statutory entitlement to paid time off on recognised bank and public holidays.

5

A

B

mourantozannes.com/employment

Breach of contract (Guernsey/Jersey) Failure to comply with any express or implied contractual term of an employee’s contract of employment could result in a breach of contract claim.

Damages are uncapped, although must fall within recognised heads of damage at common law.

It is therefore advisable that bonus schemes, policies including health and safety policies, disciplinary policies, maternity policies, redundancy policies and sick leave policies are expressly stated as non-contractual.

6

mourantozannes.com/employment

Compromise agreements (Guernsey/Jersey) To validly waive statutory rights arising in Guernsey and/or Jersey, an employee and employer must enter into a compromise agreement which complies with the requirements of the relevant legislation.

A compromise agreement is generally prepared by a legal adviser. To be effective, an employee must obtain advice from an independent legal adviser as to the effect of the agreement on his or her rights. Commonly, in addition to waivers by the employee of their right to bring claims against the employer (whether statutory or not), compromise agreements may also include a number of additional clauses dealing with non-disparagement, confidentiality, references, warranties and sometimes restrictive covenants.

7

C

D

mourantozannes.com/employment

Data protection (Guernsey/Jersey) Personal data of employees must be processed lawfully and fairly. The data protection legislation in both Islands provides rights for employees to request access to any personal data relating to them, including sensitive personal data.

Employers beware: everything that is written about an employee and/or that identifies them may need to be disclosed.

This includes all data held on computers, emails, PDA’s, voicemail and/or in manual filing systems.

8

mourantozannes.com/employment

Guernsey Except in certain cases, a data subject access request must be complied with within 60 days.

Jersey Except in certain cases, a data subject access request must be complied with within 40 days.

9

D

E

mourantozannes.com/employment

Equal opportunities and discrimination (Guernsey) Guernsey employees have statutory protection from discrimination on the grounds of sex and marital status. An equal opportunities policy is the first line of defence to any claim, evidencing that sex discrimination, harassment and victimisation will not be tolerated in a business. Any employee or applicant for employment is entitled to bring a claim in the Employment and Discrimination Tribunal for sex discrimination, harassment or victimisation. A successful applicant or employee will be awarded three months’ ‘pay’ as compensation. There is ongoing consultation in Guernsey in respect of the possible introduction of disability discrimination legislation.

10

mourantozannes.com/employment

Equal opportunities and discrimination (Jersey) The Discrimination (Jersey) Law 2013 was adopted in 2013 and will come into force on 1 September 2014. The law will initially prohibit discrimination only on the grounds of race. However, the law has been drafted in such a way that other protected characteristics (such as sex, age and disability) may be added in due course. When implemented, the law will prohibit direct and indirect discrimination and will also deal with harassment and victimisation. There is ongoing consultation in Jersey on the implementation of sex discrimination laws which are likely to come into force in 2015.

11

E

F

mourantozannes.com/employment

Family friendly rights (Guernsey) There is currently no right to flexible working in Guernsey, although it is best practice for employers to have an appropriate policy in place. A failure to consider a reasonable request for flexible working may give rise to a constructive dismissal and/or a discrimination claim if the refusal meant that the employee was being treated less favourably because of their sex.

The States of Guernsey has also approved the introduction of family friendly rights but, as of yet, there is no firm date for the passing of legislation. The rights approved were for mothers who have worked for the same Guernsey employer for 15 months prior to their due date to take up to 6 months’ maternity leave.

12

mourantozannes.com/employment

Those with less service would be entitled to up to 12 weeks’ leave and all new mothers would be required to take 2 weeks’ compulsory leave after the birth. Women would have the right to return to their specific job without the loss of former employment or seniority. Similar rights were approved for those adopting children.

Partners who have worked for the same Guernsey employer for 15 months would be entitled to 2 weeks’ leave. There would be no statutory obligation on employers to pay for the periods of leave but there would be enhanced statutory allowances.

13

F

F

mourantozannes.com/employment

Family friendly rights (Jersey) There is currently no right to flexible working in Jersey. Legislation relating to maternity, paternity and family friendly rights is likely to be introduced in Jersey in 2015. Whilst we do not as yet know the detail, this is likely to include a maximum of 18 weeks maternity leave (two of which would be paid) subject to a qualifying service, a right to 2 weeks’ unpaid paternity leave (which will apply equally to adoptive parents) and a right to request flexible working. In addition, protection from unfair dismissal (irrespective of length of employment) is proposed for any dismissal related to pregnancy/adoption, or the taking of statutory maternity, paternity or adoption leave.

14

mourantozannes.com/employment

A failure to consider a reasonable request for flexible working may give rise to a constructive dismissal and/or a discrimination claim...

15

F

G

mourantozannes.com/employment

Grievances (Guernsey/Jersey) There is no statutory regulation on grievance procedures, although established case law requires that any grievance must be conducted fairly. It is therefore recommended that employers have a clear non-contractual policy setting out the process for lodging and determining a grievance. A flawed investigation or a failure to allow an employee the right of an appeal may result in an unfair process and lead to a constructive unfair dismissal complaint.

Jersey only: The new Code of Practice for Grievance and Disciplinary procedures came into force on 1 April 2014.

16

mourantozannes.com/employment

Its aim is to help employers and employees in businesses of all sizes to deal effectively with issues relating to discipline and grievance in a fair and appropriate way. It is hoped that the Code will help employers deal effectively with issues that arise in the workplace and help employees to raise their concerns in a constructive and proportionate manner. Whilst a breach of the Code cannot give rise to a standalone claim, it will be taken into account by the Tribunal in determining the fairness of any disciplinary or grievance procedure.

Employees have a statutory right to bring a representative (as described in the law) to any formal grievance meeting.

Failure to offer the opportunity to bring a representative may result in a four week compensation payment.

17

G

H

mourantozannes.com/employment

Hours of work (Guernsey) There are no statutory requirements regarding minimum or maximum hours of work in Guernsey, although shop workers cannot be forced to work on a Sunday under Part IIA of the Employment Protection (Guernsey) Law 1998.

Employers also owe a general duty of care to their employees and have statutory obligations under health and safety legislation, such as the duty to provide a working environment for employees that is safe, without risks to health and adequate for their welfare at work.

18

mourantozannes.com/employment

Hours of work (Jersey) In Jersey, there is no statutory rule which dictates the maximum daily or weekly hours of work. However, certain minimum rest periods are prescribed by the Employment (Jersey) Law 2003. Generally, an employee is entitled to one uninterrupted rest period of 24 hours in each seven day period. However, other variations (as permitted by law) may be agreed between the parties in a relevant agreement.

Employers also owe a general duty of care to their employees and have statutory obligations under health and safety legislation, such as the duty to provide a working environment for employees that is safe, without risks to health and adequate for their welfare at work.

19

H

I

mourantozannes.com/employment

Interactive and social media (Guernsey/Jersey) With the increasing popularity of social media and networking sites, employees’ use of such sites both during and outside of working hours could lead to harassment, discrimination, victimisation, bullying, disclosure of confidential information and possible breach of contract claims.

Employers beware – have appropriate policies to protect your business and set clear standards expected from employees.

20

mourantozannes.com/employment

Job advertisements and recruitment (Guernsey) Employment issues arise even before an employment relationship commences. It is unlawful to discriminate against a candidate in their recruitment, selection or nonselection on the basis of their sex or marital status. A successful claim would entitle the candidate to an award of three months’ pay.

Once an offer of employment is made and accepted (without conditions) – there is a legally binding contract. Any subsequent withdrawal of an offer may result in an employer being liable to pay the relevant notice period and, if the reason for withdrawal is because of the individual’s sex, may lead to a sex discrimination claim.

21

J

J

mourantozannes.com/employment

Job advertisements and recruitment (Jersey) Once an offer of employment is made and accepted (without conditions) – there is a legally binding contract and any subsequent withdrawal (for any reason) may result in an employer being liable to pay the relevant notice period. In order to comply with the Discrimination (Jersey) Law 2013 and to guarantee equal opportunities and diversity, employers must ensure that a job advertisement, as well as the selection criteria for employment and/or promotion, is fair.

22

mourantozannes.com/employment

Keeping employees motivated (Guernsey/Jersey) Don’t forget the importance of maintaining the engagement and motivation of your employees. Individuals are all motivated differently and engagement may be secured by remuneration packages, benefits, flexible working practices, open door policies, active communication, promotions, inclusion in decision making or even simple recognition of a job well done.

Remember - a motivated workforce is a productive one.

23

K

L

mourantozannes.com/employment

Long term absence (Guernsey/Jersey) Managing a long term absent employee can be a minefield. Employers should have policies providing guidance on dealing with employees who are absent from work for an extended period of time due to prolonged illness or injury. Stay in regular contact, request independent medical examinations and reports, and/or consider flexible return to work arrangements. The legal risks of dismissing a long term absent employee include unfair dismissal, breach of contract and/or personal injury claims and should always be managed cautiously.

24

mourantozannes.com/employment

Managing a long term absent employee due to prolonged illness or injury can be a minefield.

25

L

M

mourantozannes.com/employment

Maternity and Paternity leave (Guernsey) There is currently no statutory obligation for employers to provide paid (or unpaid) maternity leave in either Island – although legislation is anticipated in both islands in the foreseeable future. In Guernsey, depending on the level of social security contributions, an employee may be entitled to a maternity allowance which is payable for a maximum of 18 weeks based on the standard weekly rate which is £144.90 (as of 6 January 2014), or alternatively to a one off maternity grant which is £362 (as of 6 January 2014).

26

mourantozannes.com/employment

Maternity and Paternity leave (Jersey) As mentioned in the family friendly rights (Jersey) section, legislation relating to maternity and paternity leave is expected in 2015. In the meantime, an employee may qualify for a maternity benefit from the States of Jersey. Depending on the level of social security contributions, an employee may be entitled to a maternity allowance which is payable for a maximum of 18 weeks based on the standard weekly rate, which is £191.38 (as of 2014). Employees may also be entitled to a one off maternity grant which is £574.14 (as of 2014) tax free, again based on the individual’s social security contribution record.

27

M

N

mourantozannes.com/employment

A dismissal can be based on a valid reason and still be unfair if a flawed procedure was applied – watch out!

28

mourantozannes.com/employment

Notice (Guernsey) Minimum notice requirements are set out in the Employment Protection (Guernsey) Law 1998. Employees with continuous service of: less than 1 month: - no notice between 1 month and 2 years: - not less than 1 week’s notice between 2 years and 5 years: - not less than 2 weeks’ notice over 5 years: - not less than 4 weeks’ notice

29

N

N

mourantozannes.com/employment

Notice (Jersey) Minimum notice requirements are set out in the Employment (Jersey) Law 2003. In particular, employees with continuous service of: less than 2 years: - 1 week’s notice 2 years and above: - 1 week’s notice for each complete year of continuous employment (subject to a maximum of 12 weeks)

30

mourantozannes.com/employment

Overpayments (Guernsey/Jersey) Unless required by law, it is unlawful to deduct any amount from an employee’s wages without consent – an absence of which could give rise to a breach of contract, unlawful deduction and/or constructive dismissal claim. It is therefore important to obtain an employee’s consent in the employment contract to lawfully deduct any over-payments made or money owing to the employer.

31

O

P

mourantozannes.com/employment

Post-employment restraints (Guernsey/Jersey) Every role is different and therefore every post-employment restraint should be considered in light of the individual concerned.

When drafting post-employment restraints an employer should consider: • Are there legitimate business interests which need to be protected by way of confidentiality, non-competition, non-dealing and/ or non-solicitation restrictions?

• What is the scope of the business interests to be protected – clients, intermediaries, suppliers, employees?

• How long should the restraint be and what is reasonable in the circumstances?

Our advice? Seek legal advice!

32

mourantozannes.com/employment

Having employment policies is good practice.

Employees understand what is expected of them and what to expect in return.

33

P

Q

mourantozannes.com/employment

Qualifying and limitation periods (Guernsey) Qualifying periods required before an employee can initiate a claim for: Unfair dismissal (excl. automatically unfair dismissals): 12 months continuous service.

Automatically unfair dismissal: none.

Sex discrimination: none.

Breach of contract/wrongful dismissal: none.

Limitation periods within which an employee must initiate a claim: Unfair dismissal (incl. automatically unfair dismissals): 3 months from the effective date of termination.

Sex discrimination: 3 months from the date of the alleged discriminatory act.

Breach of contract/wrongful dismissal: 6 years.

34

mourantozannes.com/employment

Qualifying and limitation periods (Jersey) Qualifying periods required before an employee can initiate a claim for: Unfair dismissal (excl. automatically unfair dismissals): 26 weeks1 continuous service.

Automatically unfair dismissal: none.

Race discrimination: none.

Breach of contract/wrongful dismissal: none.

Statutory redundancy payments: 2 years.

Limitation periods within which an employee must normally initiate a claim: Unfair dismissal (incl. automatically unfair dismissals): 8 weeks from the effective date of termination.

Race discrimination: 8 weeks from the date of the alleged discriminatory act.

Breach of contract/wrongful dismissal: 10 years.

Personal injury: 3 years.

1

different periods apply to some fixed term contracts

35

Q

R

mourantozannes.com/employment

Redundancy (Guernsey) There is currently no statutory regulation of redundancy in Guernsey. There is a Code of Practice issued by Commerce and Employment on ‘Handling Redundancies’ and to ensure a fair redundancy process, employers should consult the Code.

Whilst a failure to adopt the Code, or the principles of the Code in a bespoke policy, will not automatically lead to liability on the part of an employer, there must be good reason for departing from its guidance.

A failure to engage in a fair redundancy process (including notification, selection, consultation and termination) and/or have a genuine basis for the termination could lead to an unfair dismissal claim by any affected employee.

36

mourantozannes.com/employment

Redundancy (Jersey) Employees with two years or more continuous service with their employer are entitled to a statutory redundancy payment of one week’s pay for each complete year of service (capped in accordance with law). A failure to engage in a fair redundancy process (including notification, selection, consultation and termination) and/ or have a genuine basis for the termination could lead to an unfair dismissal claim by any affected employee. If an employer proposes to dismiss as redundant 12 or more employees at one establishment within a 30 day period, the employer must inform and consult the appropriate representatives of the affected employees about the redundancies under statutory rules around collective consultation.

37

R

S

mourantozannes.com/employment

Stress (Guernsey/Jersey) Stress in the workplace is a very real issue – particularly when it is caused by the employer or one of its employees for whom it is vicariously liable. Possible stress related claims include constructive unfair dismissal, wrongful dismissal, psychiatric and/or physical injury, breach of contract or (less likely) harassment under the Protection from Harassment (Guernsey) Law 2005 or the Crime (Disorderly Conduct and Harassment) (Jersey) Law 2008.

38

mourantozannes.com/employment

High value stress claims can be heard in each Island’s respective Royal Court. Care should be taken by employers to ensure the physical and mental well-being of their employees, including efficient and expedient management of any workplace issues with careful follow up from HR departments and managers, focusing particularly on efficient record keeping.

39

S

T

mourantozannes.com/employment

Stress (Guernsey/Jersey) Stress in the workplace is a very real issue – particularly when it is caused by the employer Terms and conditions or one of its employees for whom it is (Guernsey/Jersey) vicariously liable. Possible stress related claims Health Are your contracts upwrongful to date? include check: constructive unfair dismissal, Have all employees signedinjury, copies dismissal, psychiatricreturned and/or physical for theirofpersonnel agreed breach contract orfile? (lessHave likely)allharassment amendments been appropriately recorded? under the Protection from Harassment What do the contracts say?

Take a look!

(Guernsey) Law 2005 or the Crime (Disorderly Conduct and Harassment) (Jersey) Law 2008.

High value stress claims can be heard in each Island’s respective Royal Court. Care should be taken by employers to ensure the physical and mental well-being of their employees, including efficient and expedient management of any workplace issues with careful follow up from HR departments and managers, focusing particularly on efficient record keeping.

40

mourantozannes.com/employment

What should your employment contracts say? The Conditions of Employment (Guernsey) Law 1985 and The Employment (Jersey) Law 2003 provide that written confirmation of terms of employment must be provided to an employee within four weeks of commencement of employment.

This statement must include (among other things) the parties’ names, commencement date, job title, hours, rate of pay and payment frequency, entitlement to holiday, notice and any entitlement to sick pay, maternity leave and pension.

41

T

U

mourantozannes.com/employment

Unfair dismissal (Guernsey) What is unfair dismissal?

An unfair dismissal is any dismissal that is not on the grounds of either capability, conduct, redundancy, contravention of a legal duty or some other substantial reason or where a fair procedure was not carried out. A dismissal can be based on a valid reason and still be unfair if a flawed procedure was applied – watch out!

Automatic unfair dismissal: Any dismissal on the grounds of trade union membership, pregnancy, sex or marital status or refusal by ‘protected’ or ‘optedout’ shop workers to work on a Sunday is automatically unfair.

Who can bring a claim?

Any employee with not less than one year’s continuous service in Guernsey. Claims of automatic unfair dismissal circumvent the one year qualifying period.

42

mourantozannes.com/employment

When must a claim be brought?

Within three months of the effective date of termination.

Who determines a claim?

The Employment and Discrimination Tribunal. Each panel consists of three lay members who are not legally qualified but are experienced in employment matters.

Compensation?

Six months pay based on an employee’s average pay in the six months immediately preceding termination.

Re-instatement and re-engagement An employee may seek re-instatement or re-engagement with their employer.

If this remedy is sought, the employee receives this remedy instead of a compensatory award.

43

U

U

mourantozannes.com/employment

Unfair dismissal (Jersey) What is unfair dismissal?

Unfair dismissal is any dismissal that is not on the grounds of either capability, conduct, redundancy, contravention of a legal duty or some other substantial reason and/or where a fair procedure was not carried out.

A dismissal can be based on a valid reason and still be unfair if a flawed procedure was applied – watch out!

Automatic unfair dismissal: Dismissal or redundancy on grounds related to trade union membership or activities, assertion of a statutory right or assertion of a right to a minimum wage are automatically unfair.

Who can bring a claim?

Any employee with at least 26 weeks continuous service1. No qualifying period is required for automatic unfair dismissal.

1

There are special rules around those on fixed term contracts.

44

mourantozannes.com/employment

When must a claim be brought?

Within eight weeks of the effective date of termination but this can be extended.

Who determines a claim?

The Jersey Employment and Discrimination Tribunal. Each panel consists of two lay members who are not legally qualified, but are experienced in employment matters and one legally qualified chairperson.

Compensation?

Sliding scale depending on the employee’s length of continuous services (subject to a maximum of 26 weeks’ pay). An award is subject to reduction.

Re-instatement and re-engagement An employee may seek re-instatement or re-engagement with their employer.

If this remedy is sought, the employee receives this remedy instead of a compensatory award.

45

U

V

mourantozannes.com/employment

Variations to contract (Guernsey/Jersey) The Conditions of Employment (Guernsey) Law 1985 and The Employment (Jersey) Law 2003 provide that any amendments to certain provisions of an employee’s contract must be notified to the employee within four weeks of the change coming into effect.

Fundamental amendments, however, require employee consent or consultation before effecting any change.

A failure to obtain that consent or to consult appropriately could lead to constructive dismissal and/or breach of contract claims.

46

mourantozannes.com/employment

Wages (Guernsey) The current minimum wage rates (as at 1 October 2013) are £6.50 per hour (workers aged over 18 years) and £5.25 per hour (workers aged 16-17).

The maximum off-set for accomodation and food is £90.00 per week.

The maximum off-set for accomodation only is £63.00 per week.

47

W

W

mourantozannes.com/employment

Wages (Jersey) The current minimum wage rates (as at 1 April 2014) are as follows: • £6.63 per hour • £4.97 per hour (for year 1 trainees) • £5.80 per hour (for year 2 trainees) The maximum off-set for accommodation and food is £96.72 per week.

The maximum off-set for accommodation only is £72.54.

Any amendments to minimum wage usually occur in April each year.

48

mourantozannes.com/employment

X-rated conduct (Guernsey/Jersey) Employers should have comprehensive policies in place dealing with unacceptable conduct. What would be considered offensive and inappropriate to one person is not always the same as another, so it is important to set the boundaries.

This includes what is considered to be inappropriate conduct (in respect of, for example, personal space, touching, verbal implications and inter-office relationships) as well as inappropriate content (particularly in sent/received by email, internet sites and what is displayed in the office environment).

49

X

Y

mourantozannes.com/employment

Why have a staff handbook or policies and procedures?

(Guernsey/Jersey) Having employment policies is good practice so that employees understand what is expected of them and what to expect in return. It also gives employers a solid basis on which to defend a claim (presuming that the policy has been applied of course). Whilst it is not necessary to have a policy on every aspect of the employment relationship, there are some aspects where policies are valuable such as policies regulating leave (annual, sick, maternity, paternity, unpaid etc), redundancy (although smaller organisations may wish to avoid this), disciplinary and grievance, bullying, harassment and discrimination, health and safety, data protection, IT and security, and smoking, drugs and alcohol.

50

mourantozannes.com/employment

Zero hours contracts (Guernsey/Jersey) The Jersey Employment Tribunal has decided that a genuine zero hours contract is not a contract of employment at all, as there is no ‘mutuality of obligation’ to provide or do work between the parties.

So they may be perceived as a method of avoiding the usual employment obligations.

In Guernsey, at the time of writing, there is no such guiding case law. Therefore, how a Guernsey Employment Tribunal would determine this matter is uncertain.

What is likely, is that in either jurisdiction, irrespective of the contract, the tribunal is likely to look beyond the contract to examine the reality of the contractual arrangement. So employers should not rely on a contractual document as a means of telling the whole story!

51

Z

Contact For more information and advice on employment law please contact: Guernsey Jessica Roland on T +44 1481 731 455 jessica.roland@mourantozannes.com Jersey Helen Ruelle on T +44 1534 676 165 helen.ruelle@mourantozannes.com

Jessica Roland

Helen Ruelle

Information correct as at June 2014

52

mourantozannes.com

The little A to Z of employment law

to

The little A

Z of employment law