Reduction in Unfair Dismissal Award, Reinstatement or Re-engagement
Guidance note 6A to the EMPLOYMENT (JERSEY) LAW 2003
This statement is intended to explain to employers and employees the principal requirements of Amendment No. 4 to the Law. It is not intended to cover all the requirements of the Law, nor does it represent a statement of the Law..
Unfair Dismissal (part 7 Articles 61 to 78)
Guidance note 6 sets out an employee's right not to be unfairly dismissed and should be referred to for a more comprehensive guide to unfair dismissal.
Remedies for unfair dismissal
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.
Reduction in award
Article 77F(5) The Tribunal may reduce the award if it considers that the conduct of the employee contributed directly to the dismissal.
Article 77F(9) The Tribunal may reduce the award where, in advance of the Tribunal hearing, the employee has rejected an offer from the employer for the maximum amount the Tribunal could award if it found the dismissal to be unfair.
Article 77F(10) The Tribunal may take into account other just and equitable circumstances that merit a reduced award.
Right to re-employment
Article 77 (as amended) The Tribunal is able to consider two different options for re-employment, as an alternative to financial compensation for unfair dismissal, if the complainant wishes: reinstatement, and the more flexible option of re-engagement.
Reinstatement will be considered in the first instance but if the Tribunal decides not to make such a direction, it must then consider whether to make a direction of re-engagement.
If the employer fully or partially fails to comply with an order for re-employment, the Tribunal may award additional compensation up to a maximum of 26 weeks' pay, unless the employer can satisfy the Tribunal that it was not reasonably practicable to comply with the order. The fact that an employer may have employed a replacement for the dismissed employee is not, in itself, considered to be relevant.
The employee must be treated as though the dismissal had not occurred, with no loss financially (excluding arrears of pay) or loss of seniority or loss of continuity of service.
The employee must be re-employed but not necessarily in the same job or on the same terms and conditions of employment. However, as far as possible, the terms must be as favourable as if the employee has been reinstated, unless the employee was partly to blame for the dismissal.
Financial loss between the date of dismissal and the order for re-employment:
If reinstatement or re-engagement is ordered the Tribunal may not award compensation for arrears of pay for the period between the dismissal and the order for re-employment. However, the Tribunal may award that pension schemes and other contributory schemes for the benefit of the employee be reinstated from the date of dismissal, as well as any bonuses an employee might reasonably be expected to receive (excluding tips, commission or similar payments).
If the complainant would have benefitted from an improvement in the terms and conditions of employment had the dismissal not taken place (e.g. a general pay increase or a service-related increase in holiday entitlement) a direction for reinstatement will require the complainant to benefit from that improvement from the date of reinstatement.