5 Termination of Employment
THE EMPLOYMENT (JERSEY) LAW 2003 - Guidance note 5
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..
Termination of Employment (part 6 Articles 56 to 60)
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.
1. 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) 1 week' notice if continuous employer is less than 26 weeks;
b) 2 weeks' notice if continuous employment is 26 weeks or more but less than five (5) years;
c) 4 weeks' notice if continuous employment is five (5) years or more.
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.
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.
Fixed Term Contracts (FTC) (see also Guidance note 8 - Fixed Term Contracts)
6. 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.
7. 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.
8. 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).
9. Either party can terminate the employment without notice if the behaviour of the other justifies such termination (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
10. Either party may waive their rights to notice but an employee cannot be required to "contract out" of any statutory rights. The party who waives their rights will not receive any compensation for the rights to notice that have been waived). Either party may make or accept payment in lieu of notice.
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.
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, is regarded as continued employment for any purpose.
c) if an employee has been employed on a fixed term contract that has expired and 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 the 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 the 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 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 they have completed a specified period of employment, and the employee terminates their 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 their service in the year allows at the time of termination, 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; email email@example.com; www.jacs.org.je
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JACS April 2017
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