Termination of Employment
Guidance note 5 to the EMPLOYMENT (JERSEY) LAW 2003
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.
Termination of Employment (part 6 Articles 56 to 60) (as amended 1 January 2011)
Minimum period of notice
Under the Employment (Jersey) Law 2003 there is no longer a provision that statutory notice must be given on a pay day.
- Except where the employee is on a fixed term contract of employment the minimum period of notice, (see proviso in 2. below) to be given by the employer shall be not less than:
a) 1 week's notice if continuous employment is less than 2 years.
b) 2 weeks' notice if continuous employment is two (2) years or more but less than 3 years.
c) Plus 1 week's notice for each year's continuous service up to a maximum of 12 weeks.
NB: If prior to this amendment the terms of employment specifically listed the previous statutory notice periods these greater periods will still apply unless the Employer and Employee re-negotiate the terms.
2. An employer may state in a relevant agreement that during the first 4 weeks of service a shorter notice period (than 1 week) may apply, but after 4 weeks' service the statutory minimum notice applies.
3. An employee is required to give not less than:
a) 2 weeks' notice if continuous employment is 26 weeks or more but less than five (5) years.
b) 4 weeks' notice if continuous employment is five (5) years or more.
While the law makes no provision for statutory notice from employees with less than 26 weeks' service (employers are required to give a minimum of 1 week), this does not prevent an employer adding a requirement to the statement of written terms e.g. "During the first 26 weeks of employment an employee is required to give 1 week's notice of his intention to terminate his employment".
4. Longer periods of notice than those set out in the Law may be specified in a relevant agreement between the employer and the employee. Shorter periods of notice than those set out in the Law are not permitted. If the written terms of employment or contract of employment state, for example, "1 week's notice must be given by either party", then after 26 weeks' continuous service the notice period must be at least that which is set out in the Law and will increase with length of service.
5. The rate of pay during an employee's notice period, or recoverable by the employer where an employee leaves without giving the required notice, is that rate which applied immediately before the event.
6. Either party can terminate the employment without notice by reason of the conduct of the other party (e.g. gross misconduct by the employee resulting in summary dismissal; e.g. bullying by the employer resulting in the immediate termination of employment by the employee, with a possible claim against the employer for unfair (constructive) dismissal).
Waiving rights to notice
7. Either party may waive his rights to notice but an employee cannot be required to "contract out" of his statutory rights. The party who waives their rights will not receive any compensation for the rights to notice that he has waived). Either party may make or accept payment in lieu of notice.
Fixed Term Contracts (FTC) (see also Guidance note 8 - Fixed Term Contracts)
8. Notice periods described above do not apply to a contract of employment for a specific task which is not expected to last more than 13 weeks unless, due to circumstances, the employment extends to 3 months or more.
9. If a FTC is for a period of 4 weeks or less, but owing to circumstances the employer allows the employee to continue in post for 13 weeks or more, the contract ceases to be a FTC and instead becomes an indefinite ("permanent") contract.
10. Where an employee works on successive FTCs with the same employer and the break between each contract is not more than 26 weeks, please see 11c)
Calculating the period of employment (Article 57)
11. A week shall count in calculating the period of employment in the following cases:
a) any week or any part of a week that is governed by a contract of employment for 8 hours or more.
b) any week in which in whole or in part the employee is unable to work due to sickness or injury; absent from work because work is temporarily unavailable; absent from work in circumstances that by arrangement or custom, he is regarded as continuing in employment for any purpose, irrespective of the 8 hours per week minimum.
c) if an employee has been employed on a fixed term contract that has expired and he then enters into a further fixed term contract with the same employer, provided the gap between the two contracts is not more than 26 weeks the interval between the two contracts will not break the continuity of employment (although the interval itself will not count).
A week shall not count if in that week the employee has taken part in a strike, although the fact that an employee takes part in a strike will not break his continuity of service. Similarly, the continuity of employment will not be broken if the employee is absent from work because of a lock-out by his employer.
Change of Employer
12. In general terms, if a trade or business is transferred from one person to another or if there is a change in the partners or personal representatives who employ any person, then the employee's period of employment at the time of change shall count as a continuous employment with the "new" employer.
In particular, continuity of employment is maintained in the following circumstances:
a) When a trade, business or undertaking is transferred from one person to another.
b) When an employer dies and the employee is taken into the employment of the deceased's personal representatives.
c) When there is a change in the partners or personal representatives who employ any person.
d) When an employee of a company is taken into the employment of another company which, at that time, is an associated company of the original employing company. A company is associated with another company if it is a subsidiary or a holding company, or if both companies are subsidiaries of the same holding company.
Bonus payments and holidays on termination of employment (Article 59 (2))
13. Where bonus payments or gratuities have been agreed at the time employment commences as being part of an employee's pay, to be paid either each week or at other intervals of time, an employee is entitled to receive a pro rata payment at the termination of his employment (please see exceptions below).
a) If at the time of commencing employment the employee has agreed that no bonus or gratuity would become payable until he has completed a specified period of employment, and the employee terminates his employment before completing the specified period, then no bonus or gratuity would be due to be paid.
b) If the employer legitimately terminates the employment without notice due to conduct of the employee, then no bonus or gratuity would be due to be paid.
14.On termination of employment:-
a) an employee shall be entitled to receive payment in lieu for that proportion of the paid holiday not already taken (or any greater sum specified in a relevant agreement).
b) if the employee has taken more holiday than his service in the year allows at the time of termination, then the employer shall be entitled to receive from the employee payment equal to the excess holiday taken (or any sum which is less and is specified in a relevant agreement).
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 email@example.com; www.jacs.org.je
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Djw/jacs/9 August 2013