Unfair Dismissal

THE EMPLOYMENT (JERSEY) LAW 2003 - Guidance Note 6

This statement is intended to explain to employers and employees the principal requirements of the Law. It is not intended to cover all the requirements of the Law, nor does it represent a statement of the Law. Any reference to male persons in the statement should be read as including, or being, female persons where this is appropriate.

Unfair Dismissal (part 7 Articles 61 to 78)

An employee has the right not to be unfairly dismissed by his employer.

1. A dismissal is defined as when:

a) the employer terminates the contract, with or without notice for a stated reason of dismissal, or

b) an employee has been employed under a fixed term contract (or a series of such contracts) and the fixed term contract expires without being renewed, or

c) the employee terminates the contract, with or without notice, because of the employer’s conduct (commonly called constructive dismissal), or

d) the employer terminates the contract by giving notice and, during that notice period, the employee himself then gives notice that expires on an earlier date.

Effective date of termination (Article 63)

2. The effective date of termination is:

a) the date on which the notice expires, whether given by employer or employee.

b) when termination is without notice, the date termination took place.

c) in relation to a fixed term contract which is not renewed under the same contract, the actual date of expiry.

When giving notice, it must be remembered that the statutory notice period may be longer than that set out in the contract of employment. In such situations, the statutory period of notice is the one that must be applied and the effective date of termination will be the date on which the statutory notice period would end.

The effective date of termination is important for the calculation of specific periods referred to within the Law.

Fair dismissal (Article 64)

3. For a dismissal to be fair the employer must show that the principal reason for the dismissal is either:

a) The capability or qualifications of the employee in relation to the kind of work he was employed to do. (Capability is in relation to skill, aptitude, health or other physical or mental quality. Qualifications relate to any degree, diploma or other academic, technical or professional qualifications that are relevant to the position).

b) The conduct of the employee.

c) That the employee was redundant (see later comments in 6 b) and e) on selection for redundancy).

d) That to continue to employ the person would be contravening a duty or restriction imposed by law (e.g. a person employed as a driver who is banned from driving).

e) Some other substantial reason of a kind that would justify the dismissal of the employee and that in the circumstances the employer acted reasonably in treating it as a sufficient reason for dismissal (e.g. the dismissal of a person specifically employed to cover another’s maternity leave when the other employee returns to work; a reason associated with significant business reorganisation).

Reasonable or justifiable

4. Even if the employer has grounds to dismiss the employee the Tribunal will consider whether or not the employer’s action was reasonable. In so doing, it will consider the size and administrative resources of the employer, any changes in the business before or after the dismissal. The decision taken by the employer must be one that a reasonable employer would have made. What may be fair for one employer may not be fair for another and the reason must have substantial merits.

5. Part 7A of the Employment Law gives employees the right to be represented where their employer requires or requests them to attend a disciplinary or grievance hearing and the employee tells the employer that he or she wishes to be represented at the hearing.

This right only applies to disciplinary hearings where the hearing could result in a formal written warning or some other formal disciplinary action being taken against the employee (or the confirmation of one of the above), including appeal hearings. Informal disciplinary hearings, such as meetings to investigate an issue, do not attract the right to be represented. If it becomes clear during the course of such a meeting that disciplinary action is necessary, a formal hearing should be arranged where the employee has the right to be represented.

The Employment Law provides that an employee may be represented by one of the following people in formal disciplinary or grievance hearings:

A fellow employee who is employed by the same employer,
An employed trade union official (who may or may not be an official of a union that is recognised by the employer, but the union must be registered under the Employment Relations (Jersey) Law, 2007).
A trade union official who is not employed by a union, but whom the union has reasonably certified in writing as having experience of, or having received training in, acting as an employee’s representative at disciplinary or grievance hearings.

Automatically Unfair Dismissal

6. Dismissal in a number of instances will be regarded as automatically unfair. (In

certain instances employees who would not normally be able to claim unfair dismissal, because they have too little service with the employer or are beyond retirement age, can in fact make such a claim of automatically unfair dismissal).

Automatically unfair dismissal arises in the following circumstances:

a) Being or proposing to become a member of a trade union, taking part or proposing to take part in the activities of a trade union within his own time or within working time with the consent of the employer, or refusing or proposing to refuse to be or remain a trade union member, or taking part in official industrial action (irrespective of length of service or having reached retirement age).

b) Selection for redundancy on grounds related to union membership or activity (irrespective of length of service or having reached retirement age).

c) Asserting or bringing proceedings against an employer to enforce a statutory

right e.g. statement of initial terms of employment (irrespective of length of service or having reached retirement age).

d) Asserting or bringing proceedings against an employer to require the payment of a particular rate of minimum wage (irrespective of length of service or having reached retirement age).

e) Being selected for redundancy unfairly in that the circumstances of the redundancy applied equally to other employees who have not been made redundant and it can be shown that the employee was selected after asserting a right under either (or both) the above paragraphs c and/or d

f) Being dismissed for representing (or proposing to represent) another employee, or for asserting the right to be represented in a disciplinary or grievance hearing.

Note: The Law contains a provision that dismissal by reason of pregnancy, childbirth or maternity (irrespective of length of service or having reached retirement age) will also be automatically unfair. This provision requires Regulations to be introduced (following consultation on maternity leave etc.) prior to it becoming law. Dismissal due to pregnancy, childbirth or maternity may be unfair, but will not be automatically unfair until these Regulations are introduced.

Redundancy

7. Redundancy is defined as the dismissal of an employee wholly or mainly attributable to

(a) the fact that his employer has ceased or intends to cease –

(i) to carry on the business for the purposes of which the employee was employed by him, 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, permanently or temporarily for whatever reason.

The business of the employer together with the business or businesses of his associated employers shall be treated as one (unless either of the conditions specified in paragraphs (a) and (b) above would be satisfied without so treating them).

Qualifying period and hours of employment

8. The right to claim unfair dismissal is not available to employees whose basic contractual hours are less than 8 hours per week.

9. Except in those instances detailed in 5a) to 5e) above, an employee must have been continuously employed for a minimum of 26 weeks ending with the effective date of termination or, in the case of fixed term contract employees (with contracts for 26 weeks or less), have completed at least 2/3rds of the fixed term by the effective date of termination, (amended by the Employment Relations (Jersey) Law 2007 such that the "two-thirds" rule is s ubject to a minimum qualifying period of 13 weeks), in order to progress a claim for unfair dismissal.

10. A complaint must be brought to the Tribunal within certain time limits or, except in exceptional circumstances agreed by the Tribunal, it will be rejected as out of time.

These limits are:

a) within 8 weeks of the effective date of termination.

b) where dismissal is with notice, the complaint may be brought after the notice has been given but before the effective date of termination.

Upper and lower age limits

11. The right to claim unfair dismissal is not available to an employee who, at the effective date of termination, is still of compulsory school age.

12. Except in those instances detailed in 5c), d) and e) above, the right to claim unfair dismissal is not available to an employee who, on or before the effective date of termination, has reached retirement age in accordance with any of the criteria below:

a) where men and women have the same retirement age, the normal retirement age for the position within the undertaking.

b) in an organisation where there are different retirement ages for men and women, when the higher of the two normal retirement ages for the position has been reached.

c) In any event, when pensionable age has been reached as defined under the Social Security (Jersey) Law 1974.

Note: the 65 age barrier to unfair dismissal claims will be removed when Amendment No. 5 to the Employment (Jersey) Law 2003 is enacted, probably in February or March 2010.

Death of employee or employer (Article 78)

13. Where an employer gives notice to an employee and either the employee or the

employer dies before the effective date of termination of employment, then for the purposes of unfair dismissal the contract is taken as having been terminated by notice expiring on the date of the death.

a) Where either an employee or employer gives contractual notice, but statutory notice would result in a later date of termination (see section 2 above) and either party dies before that date then notice is taken to expire on the date of the death.

b) Where an employee has died, the Tribunal may still award compensation (to their estate).

Remedies

14. The Social Security Minister is able, by Order, to specify a scale of compensation that may be awarded by the Tribunal. Currently, it is in accordance with a scale based on the employee’s length of service and salary level. The Tribunal will have the power to reduce the award in certain circumstances where the employee has contributed to his own dismissal and the discretion to consider whether it would be appropriate for an unfairly dismissed employee to be re-employed by their employer (whether reinstatement or re-engagement), and the power to award additional compensation if the employer does not comply with a direction for re-employment.

The Tribunal may also award an additional sum, up to a maximum of £10,000, in compensation for any contractual commitment that the employee was due, but did not receive and may award a sum to compensate for notice that is due, but has not been given.

Scale of compensation for unfair dismissal:

Less than 6 months service (automatic unfair) 4 weeks’ pay

6 – 12 months continuous service 4 weeks’ pay

12 – 24 " 8 week’s pay

24 – 36 " 12 week’s pay

36 – 48 " 16 week’s pay

48 – 60 " 21 week’s pay

60 + months " 26 week’s pay

PLEASE ALSO REFER TO GUIDANCE NOTE 6A FOR AMENDMENTS TO THE PROVISIONS EFFECTIVE FROM 1st OCTOBER 2009 (Reduction in award, reinstatement ot re-engagement).

Further advice or information and copies of this and other guidance notes may be obtained from the Jersey Advisory and Conciliation Service in person or by telephoning (01534) 730503; fax (015434) 733942; email jacs@jacs.org.je ; www.jacs.org.je

DJW/jacs/06 August /2009