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
Introduction
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.
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.
Draft
Employment (Amendment No. 4)
(Jersey) Law 200-
A LAW
to amend further the Employment (Jersey) Law 2003.
Adopted by the States [date to be
inserted]
Sanctioned by Order of Her
Majesty in Council [date
to be inserted]
Registered
by the Royal Court [date
to be inserted]
THE
STATES, subject to the sanction
of Her Most Excellent Majesty in Council, have adopted the following Law –
Part 1
interpretation
1 Interpretation
In this Law, “principal Law”
means the Employment (Jersey) Law 2003[1].
part 2
remedies for unfair dismissal
2 Amendment of Part 7 of the Employment
(Jersey) Law 2003
For
Article 77 of the principal Law there shall be substituted the following
Articles –
(1) Where, on a complaint under
Article 76, the Tribunal finds that the grounds of complaint are
well-founded it shall, if the complainant wishes, consider whether to make a
direction for continued employment under Article 77A.
(2) If no direction is made under
Article 77A, the Tribunal shall make an award of compensation calculated
in accordance with Article 77F.
77A Direction for continued employment
The
Tribunal may make a direction for continued employment as follows –
(a) a direction that the employer reinstate the
complainant in accordance with Article 77B; or
(b) a direction that the employer re-engage the
complainant in other employment in accordance with Article 77C.
77B Direction for reinstatement
(1) A direction for reinstatement is a
direction that the employer shall treat the complainant in all respects as if
the dismissal had not taken place.
(2) On making a direction for reinstatement,
the Tribunal shall specify –
(a) any amount payable by the employer in
respect of any benefit which the complainant might reasonably be expected to
have had but for the dismissal (including arrears of pay) for the period
between the effective date of termination and the date of reinstatement;
(b) any rights and privileges (including
seniority and pension rights) which must be restored to the complainant; and
(c) the date by which the direction must be
complied with.
(3) If the complainant would have benefited
from an improvement in the terms and conditions of employment had the dismissal
not taken place, a direction for reinstatement shall require the complainant to
be treated as if the complainant had benefited from that improvement from the
date on which the complainant would have done so but for the dismissal.
(4) In calculating for the purposes of
paragraph (2)(a) any amount payable by the employer, the Tribunal shall
take into account, so as to reduce the employer’s liability, any sums received
by the complainant in respect of the period between the effective date of
termination and the date of reinstatement by way of –
(a) wages in lieu of notice or ex gratia
payments paid by the employer; and
(b) remuneration paid in respect of employment
with another employer,
and
such other benefits as the Tribunal thinks appropriate in the circumstances.
77C Direction for re-engagement
(1) A direction for re-engagement is a
direction, on such terms as the Tribunal thinks fit, that the complainant be
engaged by the employer, or by a successor of the employer, or by an associated
employer as defined in Article 79(7), in employment comparable to that
from which the dismissal took place or other suitable employment.
(2) On making a direction for re-engagement,
the Tribunal shall specify the terms on which the re-engagement is to take
place, including –
(a) the identity of the employer;
(b) the nature of the employment;
(c) the remuneration for the employment;
(d) any amount payable by the employer in
respect of any benefit which the complainant might reasonably be expected to
have had but for the dismissal (including arrears of pay) for the period
between the effective date of termination and the date of re-engagement;
(e) any rights and privileges (including
seniority and pension rights) which must be restored to the complainant; and
(f) the date by which the direction must be
complied with.
(3) In calculating for the purposes of
paragraph (2)(d) any amount payable by the employer, the Tribunal shall
take into account, so as to reduce the employer’s liability, any sums received
by the complainant in respect of the period between the effective date of
termination and the date of re-engagement by way of –
(a) wages in lieu of notice or ex gratia
payments paid by the employer; and
(b) remuneration paid in respect of employment
with another employer,
and
such other benefits as the Tribunal thinks appropriate in the circumstances.
(1) If the complainant wishes the Tribunal to
consider whether to make a direction for continued employment under
Article 77A, the Tribunal shall consider first whether to make a direction
for reinstatement.
(2) In exercising its discretion under
Article 77A(a), the Tribunal shall take into account –
(a) whether the complainant wishes to be
reinstated;
(b) whether it is practicable for the employer
to comply with a direction for reinstatement; and
(c) where the complainant caused or contributed
to some extent to the dismissal, whether it would be just to direct the
reinstatement.
(3) If the Tribunal decides not to make a
direction for reinstatement it shall then consider whether to make a direction
for re-engagement.
(4) In exercising its discretion under
Article 77A(b) the Tribunal shall take into account –
(a) any wish expressed by the complainant as to
the nature of the direction to be made;
(b) whether it is practicable for the employer
or a successor of the employer or an associated employer within the meaning of
Article 79(7) (as the case requires) to comply with a direction for
re-engagement; and
(c) where the complainant caused or contributed
to some extent to the dismissal, whether it would be just to direct that
person’s re-engagement and (if so) on what terms.
(5) Except in a case where the Tribunal takes
into account contributory fault under paragraph (4)(c) it shall, if it
directs re-engagement, do so on terms which are, so far as is reasonably
practicable, as favourable as a direction for reinstatement.
(6) Where in any case an employer has engaged a
permanent replacement for the complainant, the Tribunal shall not take that
fact into account in determining, for the purposes of paragraph (2)(b) or
(4)(b), whether it is practicable for the employer to comply with a direction
for reinstatement or re-engagement.
(7) Paragraph (6) does not apply where the
employer shows –
(a) that it was not practicable for the
employer to arrange for the complainant’s work to be done without engaging a
permanent replacement; or
(b) that –
(i) the employer engaged the permanent
replacement after the lapse of a reasonable period without having heard from
the complainant whether the complainant wished to be reinstated or re-engaged,
and
(ii) when the employer engaged the permanent
replacement it was no longer reasonable for the employer to arrange for the
complainant’s work to be done except by a permanent replacement.
77E Enforcement of direction
(1) The Tribunal shall make an award of
compensation, to be paid by the employer to the complainant, if –
(a) a direction under Article 77A is made
and the complainant is reinstated or re-engaged, but
(b) the terms of the direction are not fully
complied with.
(2) Subject to the maximum amount prescribed
for the purposes of Article 86(6), the amount of the compensation shall be
such as the Tribunal thinks fit having regard to the loss sustained by the
complainant in consequence of the failure to comply fully with the terms of the
direction.
(3) If a direction under Article 77A is
made but the complainant is not reinstated or re-engaged, the Tribunal shall
make –
(a) an award of compensation for unfair
dismissal calculated in accordance with Article 77F; and
(b) an additional award of compensation of an
amount up to 26 weeks’ pay,
to be
paid by the employer to the complainant.
(4) Paragraph (3)(b) does not apply where
the employer satisfies the Tribunal that it was not practicable to comply with
the direction.
(5) Where in any case an employer has engaged a
permanent replacement for a dismissed employee, the Tribunal shall not take
that fact into account in determining for the purposes of paragraph (4)
whether it was practicable to comply with the direction for reinstatement or
re-engagement unless the employer shows that it was not practicable to arrange
for the dismissed employee’s work to be done without engaging a permanent
replacement.
(6) Where in any case the Tribunal finds that
the complainant has unreasonably prevented a direction under Article 77A
from being complied with, in making an award of compensation for unfair
dismissal the Tribunal shall take that conduct into account as a failure on the
part of the complainant to mitigate loss.
(1) Subject to paragraph (3), an award
under Article 77(2) or Article 77E(3)(a) shall be calculated in
accordance with an Order made under paragraph (2).
(2) The Minister shall by Order specify a scale
of compensation which may be awarded by the Tribunal under Article 77(2)
or Article 77E(3)(a).
(3) An award under Article 77(2) or Article 77E(3)(a)
may be reduced by such amount as the Tribunal considers just and equitable
having regard to any of the circumstances described in paragraphs (4),
(5), (7) and (8).
(4) The Tribunal finds the complainant has
either –
(a) unreasonably refused an offer by the
employer which, if accepted, would have had the effect of reinstating the
complainant in the complainant’s former employment in all respects as if the
dismissal had not taken place; or
(b) accepted such offer as is described in
sub-paragraph (a) in circumstances where the Tribunal may reasonably conclude
that at the time the offer was accepted the complainant intended to terminate
the employment as soon as reasonably practicable.
(5) The Tribunal considers that any conduct of
the complainant before dismissal (or, where the dismissal was with notice,
before the notice was given) was such that reduction of the award is just and
equitable.
(6) For the purposes of paragraph (5), the
Tribunal may take into account conduct committed whilst in employment which
came to light after notice was given or the act of dismissal occurred where
such conduct is related to the circumstances giving rise to the notice being
given or the act of dismissal taking place.
(7) The complainant has agreed to receive a
payment by way of settlement of the complaint (whether or not the dismissal is
related to redundancy).
(8) The complainant has been awarded a
redundancy payment under any enactment or is entitled to a redundancy payment
under his or her contract of employment.
77G Transitional provision
(1) In this Article, “the specified date” means
the date the Employment (Amendment No. 4) (Jersey) Law 200- comes
into force.
(2) If, before the specified date, a complaint
has been presented to the Tribunal under Article 76 and has not been
finally determined, the Tribunal shall deal with that complaint on or after the
specified date as if the Employment (Amendment No. 4) (Jersey) Law 200-had
not come into force.”.
part 3
miscellaneous and closing
3 Repeal of Article 36
Article 36
of the principal Law shall be repealed.
4 Citation and commencement
(1) This Law may be cited as the Employment
(Amendment No. 4) (Jersey) Law 200-.
(2) This Law shall come into force on such day
as the States may by Act appoint.
