Jersey Employment Law for Business

Under Jersey Law if you employ a member of staff you are required to issue your employee with itemised pay statements. This includes if you employ students and part time staff.

A recent case has highlighted this issue: Lili Huckson and The Vault. Lili Huckson is a student and working for the Vault was her first job. She worked on average 10 hours a week and had agreed to be paid £9 an hour. She mainly worked shifts at the weekend often from 9am until 5pm. After two months of work she had received no pay. Understandably she raised this delay in payment with her employer and, when she eventually received her pay it did not reflect the hours she worked or the agreed rate of pay. This was again raised and a further payment was made to her. Again, and even with this second payment being added to the first, the amount paid to Lili in no way reflected what she had earned through her efforts and that was owed to her. Lili requested her pay statements in order to be able to understand the basis on which her pay had been calculated. Neither these nor an explanation as to how the payments were calculated were ever provided to her. She therefore issued proceedings in the Jersey Employment Tribunal.

Tribunal Decision

The Tribunal understandably found in Lili’s favour. They therefore considered what the appropriate order would be in the circumstances. Article 54(1A) of the Jersey employment law gives the tribunal the power to order a Respondent to pay up to four weeks’ pay to a Claimant for a failure to provide payslips. Up to this point there was no guidance in The Employment (Jersey) Law 2003 as to how to go about assessing where on the scale of up to four weeks’ pay any award should fall.

The Tribunal considered that an employee, if their wages are paid, may well suffer no financial loss by way of not receiving such a payslip and so the power to order a Respondent to pay a Claimant a sum of money would, in many if not most cases, be robbed of any effect if the award were to only reflect compensation for the losses actually incurred by the employee for not receiving the payslip. There must therefore be another reason for the power to order employers provide such statements and to pay compensation if they fail to do so. The Tribunal stated that it considered that the power under Art 54(1A) to be punitive in nature and is contained within the Law to provide a sanction on employers to provide their employees with payslips, and to comply with what is a minimal obligation.

Accordingly Jersey employers should be alive to the legal obligation to provide pay statements, which as the tribunal stated is a minimal obligation. This is not just an obligation as to full time employees but also to part time and student staff.

An employee is entitled to an uninterrupted rest period of not less than 24 hours in each seven day period. The employer and employee may agree how this should work.

Under Jersey employment law, an employee is entitled to a minimum period of 2 weeks paid annual leave.

The statutory minimum notice periods from an employer to an employee are:

• 1 week’s notice if continuous employment is less than 2 years
• 2 week’s notice if continuous employment is 2 or more years but less than 3 years
• 1 additional week of notice for each year on continuous service up to a maximum of 12 weeks

Possibly. For the restrictive covenant clause to be ‘legal’, the following, among other things, must be considered:

• whether there are any legitimate business interests to protect
• the length of the restrictions
• the geographical extent of the restrictions.

Wrongful dismissal is a claim for a breach of the employment contract. The most common breach is where you, as the employer, dismiss the employee without notice or with less than the minimum notice period stated in the contract.

Unfair dismissal is where you, as an employer, terminate your employee’s contract of employment once they accrue rights under Jersey employment law without fair reason and or without following a reasonable process. Employees need to accrue a year of service before they can claim unfair dismissal rights.

Redundancy is a form of dismissal, and can happen when an employee’s job no longer exists. This may be due to you needing to reduce your workforce, close the business, or certain work is no longer needed. If somebody is dismissed and another person fills his or her post, that is not redundancy.

Under Jersey law, constructive dismissal is where you fundamentally breach the contract of employment in some way. This includes imposing a disciplinary or performance process that is grossly unfair and disproportionate; forcing a cut in salary or other benefits etc.

If the reasons are valid, you can fairly dismiss an employee who is pregnant or on maternity leave. However, if the redundancy or dismissal is actually about the employee being pregnant or on maternity leave, then the dismissal will be automatically unfair.

Gross misconduct can be any conduct where your employee has behaved in a way that represents a serious breach of the employment contract, making any continuing relationship with your employee impossible. For example, where they have committed theft, refusing to obey legitimate instructions etc. However, be careful as you cannot just sack someone on the spot; you must still follow a disciplinary process.

There is no legal obligation for you to provide a reference. However, you need to check the employment contract as you may be contractually obligated if your employee is a good leaver (i.e. not sacked for gross misconduct).

This will depend upon whether the offer was made on a conditional or non-conditional basis.

Unconditional offer

If an employer makes an unconditional offer to a potential employee and this is accepted a legally binding contract will be formed between the two parties. The employer cannot unilaterally withdraw the offer. In other words be careful making unconditional offers because once made and accepted the contract is formed. The employer can of course withdraw an offer at any time until it is accepted, as long as this has been communicated to the potential employee.

If an employer does withdraw an offer once accepted the employee would be able to sue for breach of contract. The usual claim would be that they have suffered loss due to resigning from their previous business through to claiming damages for failing to provide compensation in line with notice pay. The employer may also face a claim for discrimination if the offer was in fact removed due to the employee suffering a health issue and this being found to be a reason for not honouring the job offer.

Conditional offer

In general terms it is wise to consider making conditional offers to employees, just in case. For example, consider stating that the position is subject to conditions such as satisfactory references, a criminal record check or a qualification check for example. This gives the employer an opportunity to assess the applicant employee further.

A conditional job offer can be withdrawn if the applicant employee does not fulfill all the conditions of the offer.

However if the applicant employee does meet all the conditions and you decide to withdraw the offer, the applicant employee could take legal action against you for breach of contract.

The employer should also be careful to consider Jersey discrimination legislation when making any decision. Withdrawing a job offer because the medical check shows the applicant has a disability is likely to constitute discrimination. The applicant employee could issue proceedings against you.

As long as the employment contract permits such and reasonable notice of any changes is given to the employees, an employer may be entitled to manage its workplace and implement unilateral changes to the employment contract from time to time.

The requirement that an employer provides reasonable notice to an employee of its intention to implement significant changes to the terms of employment has its roots in the employer’s duty to provide reasonable notice of dismissal. The two requirements are very closely related.

To reach the conclusion that an employee has been constructively dismissed, the court must determine whether the changes imposed by the employer substantially altered the essential terms of the employee’s contract of employment.

The types of unilateral changes that amount to constructive dismissal vary from case to case. It will depend on the nature of the change and the employment relationship in question.

Constructive dismissal may arise for example in the following situations, where a move is made unilaterally and without reasonable notice, namely:

• the employee’s salary is reduced
• the employee is demoted
• the employee compensation package is removed

This list is by no means exhaustive of the types of significant unilateral changes that may lead to a constructive dismissal.

Jersey employers must ensure that anti-bullying and harassment policies are in place and monitored. Employers must make staff aware of such and of the options in place to deal with any such incidents. Ignoring or indeed condoning such bullying and or harassment creates an unhappy working environment which can result in poor productivity, low morale, high levels of absenteeism and high staff turnover. Ultimately, it can lead to employment tribunals and compensation payments.

Bullying or harassment is unwanted behaviour which causes intimidation, degradation, humiliation or offence. This can be between two individuals or can involve groups of people and could form a persistent behaviour pattern or be an isolated incident.

Examples of bullying include but are not limited to insulting someone, spreading malicious rumours, exclusion, unfair or unreasonable treatment, deliberately undermining a competent employee through constant criticism. Harassment refers to unwanted behaviour in respect of age, disability, race, religion, sex and sexual orientation.

Key considerations to prevent such behaviour are:

• Develop and implement a formal policy; this does not need to be lengthy or complicated
• Ensure a good example of appropriate behaviour is set and maintained by all senior members of staff
• Monitor the workplace to identify bullying and harassment
• Ensure all or any complaints from employees are dealt with fairly and promptly
• Stating the expected standards of behaviour through the staff handbook

As an employer, you may wish to monitor staff in the workplace for various reasons. Whilst the Data Protection (Jersey) Law 2018 does not prevent employers from monitoring workers, employees are entitled to a degree of privacy and employers must therefore inform employees about policies regarding monitoring.

The following points should be observed:

• Written policies must be in place regarding monitoring which must be justified and cannot be excessive
• Staff must be informed as to what will be recorded and for how long the data will be kept. Any saved data must be kept secure

There are many reasons you may wish to monitor staff activity: this could be a legal or regulatory need, depending on the industry, or could be to ensure employees are not at risk from unsafe working conditions of practices.

The means of monitoring could be by CCTV, email and web usage monitoring, listening in or recording telephone calls or bag searches. It is important that, as an employer, if personal use of phones/email/internet is permitted in the workplace and is to be monitored, that staff are aware of this and the reason why. If this is the case, policy must be in place detailing what is or is not allowed, any websites that may be banned or blocked and what is considered reasonable usage. Any staff member not complying with the published policy could be subject to disciplinary procedure.

Specific Issues

• CCTV monitoring. CCTV can be used in the workplace but again, employees must be informed – usually by signage around the relevant areas of the building – and given the reason for monitoring.
• Bag searches. Should the employer wish to carry out bag searches on employees, a policy must be in place informing staff of this. There must be a legitimate work related reason for carrying out searches.
• Covert monitoring. In rare circumstances an employer may wish to carry out covert monitoring but this must only be if absolutely necessary and there must be a genuine reason such as criminal activity or malpractice. The covert monitoring can only be carried out as part of a specific investigation and must cease once the investigation is complete.

You should always consider taking legal advice before commencing such activities.

In recent years it was considered by some that the employees right to privacy was a fundamental right and that this included monitoring emails of employees.

The ECHR has however decided in the case of Barbulescu v. Romania (application no. 61496/08) that Employers can monitor employee communications and this includes the monitoring of emails. This is, however, conditional upon measures taken by the employer to monitor employees’ communications being proportionate and that such measures are accompanied by adequate and sufficient safeguards against abuse.

Whilst this was a case involving Romania, it is likely a Jersey Court would have reference to this judgment and apply the criteria handed down. Jersey employers should be careful to ensure that the employee handbook is clear and unambiguous and provides a clear statement about monitoring emails.

Just because your employee has resigned it does not mean that you as an employer cannot continue with disciplinary action should you need to.

The employee is still contractually employed by you until their notice period expires. If the subject matter of the disciplinary is significantly serious, you need to carefully consider how to proceed:

• If the employee gives notice and you are looking to the employee to work their notice there is no issue – you can proceed with the disciplinary process
• If the employee gives notice and you are minded to provide the employee with payment in lieu of notice (PILON) there could be an issue. If a PILON is provided the employment terminates on the date stated in the PILON. Therefore, at that point there is no employment relationship as it has terminated and as such no right to proceed with a disciplinary

If you take disciplinary action against the employee during the notice period and the outcome is summary dismissal and this before the notice period ends, the employment relationship will terminate with dismissal, and not because your employee has resigned.

Conflict at work takes many forms: it may be simple personality clashes between individuals or possibly rivalry between teams, or even lack of trust and respect between groups of employees and management.
It may be self-evident in terms of verbal disagreement in the workplace, however not all forms of conflict present so obviously. Individuals who have conflict issues at work may choose to keep it to themselves rather than try and deal with the problem, likewise a team of employees may cut itself off from the organisation as a whole.

How can conflict be identified?

Conflict can be identified by lack of motivation, lack of input at meetings, reluctance to become involved in new initiatives, behaviour changes, less involvement in staff social events, whether this be an individual or a group as a whole, sickness absence caused by stress, reduced productivity. One of the best ways to identify conflict is through staff surveys.

What causes conflict?

Conflict can be the result of many factors such as poor management, undefined job descriptions, poor working conditions, bullying, lack of opportunity, unfair treatment, poor communication or simply a personality clash.

How do you manage conflict?

Conflict between individuals can be managed by speaking to the parties individually and investigating the problem informally. It may be necessary to use internal procedures, for example, grievance procedures, and it may be helpful to use a mediator to assist in the process

Managing conflict between groups of employees may involve making adjustments to the way improving the way you communicate with employees, changing structures within your organisation in order to tackle such situations going forward, possibly restructuring staff groups within the workplace. It may well be necessary to engage outside expert assistance.

In many disputes the issues can be resolved by simply talking and listening to employees. Giving people the time and space to express their feelings and concerns can often help to clear the air. Mediation is the most common form of dispute resolution which may be sourced from outside your organisation. It involves an independent, impartial person helping two individuals or groups reach a solution that is acceptable to everyone.

The management of a business can often involve dealing with challenging employment situations within the workplace and as a business owner or manager, you may often feel under pressure from staff to resolve such issues instantly. It is important to handle these situations appropriately but be careful not to react on the spur of the moment: getting it wrong may lead to absence, decreased productivity a grievance claim or even a constructive dismissal claim. On the other hand, get it right and everyone is happy. It is important to consider various common scenarios in order to be prepared and able to control whatever situation comes your way.

A challenging conversation in the workplace is one where you have to manage emotions and information in a sensitive way in order to, for example:

• address poor performance or conduct
• deal with personal problems
• investigate complaints
• tackle personality clashes

It is human nature to feel a reluctance to get drawn into these type of emotive and awkward conversations, which are often concerning performance or conduct, even if it is undoubtedly part of your job. However it is important to act objectively and promptly, as not to do so can lead the employee to think you are not interested or do not think there is a problem. In addition, denying the individual(s) concerned the opportunity to rectify the situation without further ado, can ultimately only cause a negative outcome, damaging the productivity of the business and lowering morale among staff who do not feel valued.

You can help make conversations with your employees less difficult by keeping in touch with your staff and having a quiet word at the first sign of any issue. It is far better, if possible, to nip problems in the bud rather than waiting for them to become more entrenched or complicated.

Many of the skills needed to manage difficult conversations involve dealing with an emotional or confrontational employee who may appear to be trying to unsettle or undermine you. You need to consider the way you communicate, ensure that you have the ability to maintain control of the meeting and that you are confident in your ability to handle the situation appropriately. None of this is easy and is learned through experience and training.