Notice when at zero or half pay

Notice at "zero pay"  

Article 59 of the Employment (Jersey) Law 2003 states in (1) that (JACS’ emphasis):  

" The rate of remuneration payable during the period of notice by an employer or recoverable by him 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".  

A number of employers, particularly those offering substantial Company sick pay, have interpreted this clause as meaning that, if an employee has exhausted his sick pay (and is therefore at zero pay) or has moved to half pay and is subsequently dismissed due to ongoing incapacity, then the notice period is at zero pay or at half pay. For a long service employee, this could mean 16 weeks’ notice at zero pay.  

The recent Tribunal Case (Bell v. W. Horn Brothers Limited – case number 1804060/06) has set a precedent in respect of notice.  

Background

The employee commenced employment on 5th February 2002. Each year he took two or three months off work with the agreement of his employer, without pay, during the slack months of January to March and on each prior occasion he returned to his employment, having told his employer in advance of the date of his return.  

He did the same in December 2005 but on his return in March 2006 he was told that there was no work for him. He submitted a claim to the Tribunal that he was due 4 weeks notice as his service was in excess of 4 years. His employer contested the claim and stated that each year he resigned and was in effect offered further employment because work was available for him to do and it suited the employer to offer him employment.  

Outcome

The Tribunal found that:

Note: Despite the fact that the "rate of remuneration" in the weeks leading up March 2006 was zero (the time off work was once again without pay), the award of 4 weeks pay was calculated on the basis of his last known wage rate of £492.40 per week. He was awarded £1,969.60.  

This raises the possibility that the Tribunal would consider that notice of dismissal when an employee is on zero pay (or half pay) should also be paid at the employee’s full contractual rate of pay - although the Tribunal has not yet been required to consider the matter of "zero pay notice" for sick pay.