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2017 Removal of 8 Hour Threshold

THE EMPLOYMENT (JERSEY) LAW 2003 - Removal of 8 Hour Threshold.                             

These guidance notes are intended to assist in helping to understand the employment status of someone working less than 8 hours a week.  These notes do not represent a statement of the Law.

The introduction of the Sex Discrimination Regulations in September 2015, also brings about a change in the Employment legislation in respect of employees working less than 8 hours a week.

NB: Changes to the legislation were introduced from 1st September 2015 in respect of removing the 8 hour threshold for the purposes of calculating length of service and the right to claim for unfair dismissal. These changes may mean that people working under zero hour contracts are employees and therefore will receive the same rights as all other employees. However this can will need be determined by the Tribunal.

Prior to the Sex Discrimination Regulations individuals working less than 8 hours a week were generally not entitled to the following:

  •  Written terms of employment
  •  Accrual of continuous service for the purpose of Notice Periods
  •  To claim for unfair dismissal

 

The requirement to work 8 hours or more each week to be entitled to these employment rights will be removed from 1 September 2015. This means that a person's rights under the Employment Law will depend only on whether they are an employee or not for the purposes of the Employment Law.

The Law defines employer and employee as follows:

An "employer" means a person who employs another person, and

An "employee" means:

(a)    a person who 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, or

(b)    .., a person is also employed by another person if the first person enters into any other contract with the second person under which the first person undertakes to do, or to perform personally, work or services for the second person and the status of the second person is not that of a client or customer of any profession or trade or business undertaking carried on by the first person.

It is immaterial whether the contract referred to in (a) or (b) above is express or implied or whether it is oral or in writing.

The definition in (a) is that which applies to the majority of people employed as permanent or fixed term contract staff.

Do these definitions then apply to everyone working less than 8 hours?

NB: Changes to the legislation were introduced from 1st September 2015 in respect of removing the 8 hour threshold for the purposes of calculating length of service and the right to claim for unfair dismissal. These changes may mean that people working under zero hour contracts are employees and therefore will receive the same rights as all other employees. However this is likely to only be determined by the Tribunal.

 

Some individuals will fall into the definition of 'employee', those for instance who work on a formal basis for an 'employer' for example working Saturdays in a shop or a couple of evenings a week in a restaurant.   In such situations it is obvious that person who owns shop or business is an employer therefore work being undertaken by an individual for the business is an employee.

However in some cases the definitions will not apply, some businesses engage contractors who might be self-employed - see JACS Guidance Note 9 for more information on self-employment and contractors.  Other companies enter into arrangements where a contractor delivers a service to them, for example a contract cleaning company (a third party) who employs the cleaner(s) directly, and then provides their services to their clients.

Other individuals undertake work on a more informal basis for example an individual who offers babysitting duty for a couple of hours or someone - who is not supplied by a third party - cleans a private house for say 3 hours a week.  In the majority of cases it is unlikely that an employment relationship is in place. The individual is responsible for paying their own Income Tax and any Social Security contributions, taking into account the aggregate of the clients they are undertaking work for as they may well be working in other households as well.  The relationship is unlikely to be set down as a formal arrangement with the individual undertaking their duties around their other responsibilities/commitments, which is a more ad hoc arrangement.

The boundaries can get blurred the longer an ad hoc arrangement continues, for instance where control is exercised in respect of the hours of work, having to book/agree holidays or the amount of supervision the customer is extending, this can begin to look like an employer employee relationship.  There is also mutuality of obligation - is there an expectation that the customer requires/obliges the individual to turn up or is this discussed and agreed upon? If the individual does not do work for a number of different customers - working exclusively for one customer, it is more likely they could be consider to be an employee.

The fact that Income Tax is not being deducted from any payment made to an individual is not in itself a definitive factor  and the Tribunal or Court will need to consider several different factors when considering whether an individual is an employee or not,

If at the outset there is no intention for there to be an employer and employee relationship, care must be taken to ensure that familiarity over a period of time does not create one.

I have just taken on a personal care assistant to look after my mother. She insists that she is self-employed. Is this right?

Employees work under an employment contract which is sometimes known as a contract of service. Usually you would have something written down, but you can still be an employee without a written contract. Some signs that someone might be an employee are:

You have to do the work yourself - you cannot send someone else to do your work or sub-contract it

  • The person who provides you with work can tell you when and how to do your job
  • You do not do work for a number of different customers - you work exclusively for one person/business
  • You are not responsible for your own Tax or Social Security contributions; these are deducted straight from your wages
  • You work at your employer's premises and use their tools or equipment
  • You are covered by a disciplinary policy.

Self-employed people are usually identified by the fact that they are in business for themselves. Some signs of self-employed status are:

  • You provide a service to more than one person
  • You can send another person to do your work. This person reports to you and you are responsible for paying them
  • You can decide when or how to do the work
  • You have a financial risk or reward from your business. For example you may agree to do a job for a set price and are responsible for any additional costs that arise and benefit if it can be done more cheaply
  • You send invoices for the work that you do.

I have a cleaner for 7 hours a week (over 2 mornings) and she is insisting I am her employer - is this correct?

The same principles set out above would apply again here.  The relationship between you and the cleaner is less likely to be that of an employer and employee if:

  • She is working for other people on the same/similar basis
  •  She is able to be flexible on her arrival and finish time
  •  She tells you when she is going on holidays
  •  She suggests a family member/friend to do the work if she is not able to attend

  

April 2017

 

 

 

 

 

 

 

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