Draft Employment (Amendment No. 4) (Jersey) Law 200-
European Convention on Human Rights
In accordance with the provisions of Article 16 of the
Human Rights (Jersey) Law 2000 the Minister for Social Security has made the
following statement –
In the view of the Minister for Social Security the
provisions of the Draft Employment (Amendment No. 4) (Jersey) Law 200- are
compatible with the Convention Rights.
(Signed) Senator P.F. Routier
REPORT
The purpose of this Proposition is to amend the Employment (Jersey) Law 2003 to extend the Jersey Employment Tribunal’s (“the Tribunal”) jurisdiction in relation to unfair dismissal claims in two ways. It provides the Tribunal with –
1. The power to reduce an unfair dismissal award where an employee is found to have contributed to their own dismissal (in specified circumstances); and
2. The discretion to consider whether it would be appropriate for an unfairly dismissed employee to be re-employed by their employer (whether reinstatement or re-engagement), and the power to award additional compensation if the employer does not comply with a direction for re-employment.
Background
The Minister for Social Security has received representations from a number of interested parties on the above 2 issues relating to the powers of the Employment Tribunal in unfair dismissal awards and asked the independent Employment Forum to consider the issues in more detail and make a recommendation. The Forum recommended that the legislation should include the 2 additional powers; the Minister approved the recommendation in April 2007 and instructed that an amendment should be drafted accordingly.
Reduction in
unfair dismissal compensation
An equivalent
provision in a similar small jurisdiction is Article 23 of the Employment
Protection (Guernsey) (Amendment) Law, 2005, which provides that the Employment
and Discrimination Tribunal may reduce an unfair dismissal award in certain
circumstances.
The Guernsey Tribunal may take into account whether an offer of reinstatement has been unreasonably refused, and any other circumstances in which the Tribunal considers that it would be just and equitable to reduce the award of compensation, to whatever extent it sees fit.
In the interests of natural justice, statutory provision has been made for the circumstances in which an award may be reduced in Jersey, which are similar to those in Great Britain, including for example; the employee’s conduct, any other amounts paid to the employee by way of settlement, and the refusal of an offer of reinstatement.
Right to
re-employment
Having carefully considered the issue of re-employment in its 2001 recommendation on unfair dismissal, the Forum was then of the opinion that there is nothing to be gained by having such a provision present in Jersey legislation. This was considered to be a sensible approach at that time; it was not intended to restrict the powers of the Tribunal and was recommended in the interests of avoiding unnecessary complexity.
However, following further consideration, the Forum’s recommendation noted that Jersey is a more restricted employment market than the U.K., making the option of an award for re-employment more relevant and necessary.
The amendment makes provision for the Tribunal to consider 2 different options for re-employment as an alternative to financial compensation for dismissal; reinstatement, and the more flexible option of re-engagement.
Where reinstatement is awarded, the employee is to be treated in all respects as though the dismissal had not occurred, with no loss financially, or of seniority.
Where re-engagement is awarded, the employee is to 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 had been reinstated.
In deciding whether or not to make an order for reinstatement or re-engagement, the Tribunal will take into account the employee’s wishes; the practicability of the employee returning to work for the employer (or a successor company); and in cases where the employee was partly to blame for the dismissal, whether or not it would be just to make such an order, and if so, on what terms.
Orders for reinstatement or re-engagement may include an award of compensation for any loss of earnings suffered during the period in which the employee was dismissed, and also compensation for any losses if the employer refuses to comply fully with the terms of an order for re-employment.
If there has been a total failure to comply with an order for re-employment, the Tribunal will be able to make an additional award of 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.
Financial/manpower implications
There are no financial or manpower implications for the States arising from the adoption of this Draft Law.
European Convention on Human Rights
Article 16 of the Human
Rights (Jersey) Law 2000 requires the Minister in charge of a Projet de Loi to
make a statement about the compatibility of the provisions of the Projet with
the Convention rights (as defined by Article 1 of the Law). On 19th
November 2007 the Minister for Social Security made the following statement
before Second Reading of this Projet in the States Assembly –
In the view of the Minister for Social Security the
provisions of the Draft Employment (Amendment No. 4) (Jersey) Law 200- are
compatible with the Convention Rights.
Explanatory Note
Part 1 – Interpretation
Article 1 defines the Employment (Jersey) Law 2003 as the principal Law.
Part 2 – Remedies for unfair
dismissal
Article 2 amends Part 7 of the Employment (Jersey) Law 2003 in relation to remedies for unfair dismissal. It amends Article 77 of the principal Law so as to give the Jersey Employment Tribunal an additional power to direct the re-employment of a dismissed employee as an alternative to compensation. If the Tribunal finds an unfair dismissal complaint is well-founded, it must, if the complainant wishes, consider whether to make a direction for continued employment. If no such direction is made it must award compensation. Article 2 also inserts Articles 77A to 77G into the principal Law.
Article 77A – Direction
for continued employment
This Article provides that a direction for continued employment is either a direction for reinstatement of the dismissed employee or a direction for his or her re-engagement in another job.
Article 77B – Direction
for reinstatement
This Article sets out what a direction for reinstatement means. Under such a direction the dismissed employee is re-employed in all respects as if the dismissal had not taken place.
Article 77C – Direction
for re-engagement
This Article sets out what a direction for re-engagement means. Under such a direction the dismissed employee is employed by his or her former employer, a successor employer or an associated employer on terms which are comparable to those of his or her former employment.
Article 77D – Choice of direction
This Article sets out the considerations that the Tribunal must take into account when deciding whether to make a direction for continued employment, and, if so, which type. In considering which direction to make, the Tribunal must consider whether it is practicable for the employer to comply with such a direction.
Article 77E –
Enforcement of direction
This Article provides that if the employer does not comply with a direction for continued employment, the Tribunal shall make an award of compensation to the dismissed employee.
Article 77F –
Compensation awards
This Article provides that if the Tribunal awards compensation instead of making a direction for continued employment, or awards compensation under Article 77E, it must do so in accordance with an Order made under this Article. The Tribunal may reduce the amount of compensation if it thinks it just and equitable to do so taking into account specified factors including the dismissed employee’s conduct and any payments made to him or her.
Article 77G –
Transitional provision
Under this Article, complaints for unfair dismissal presented to the Tribunal immediately before the date this Law comes into force will continue to be dealt with under the principal Law as if this Law had not come into force.
Part 3 – Miscellaneous and closing
Article 3 repeals Article 36 of the principal Law. This is because Article 36 cross refers to the definition of “employ” in the principal Law. That definition is repealed by the Employment Relations (Jersey) Law 2007.
Article 4 cites the short title of the Law and provides that it will come into force on such day as the States may by Act appoint.
