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Employment
(Amendment No. 11) (Jersey) Law
2020
A LAW to amend further the Employment
(Jersey) Law 2003, and to make consequential amendments to the
Discrimination (Jersey) Law 2013
Adopted
by the States 24th October 2019
Sanctioned
by Order of Her Majesty in Council 12th February 2020
Registered by the Royal Court 21st February 2020
Coming into force in accordance with Article 9
THE STATES, subject to the sanction of Her Most
Excellent Majesty in Council, have adopted the following Law –
1 Interpretation
In this Law, a reference to a
Part or to an Article by number, and without any contrary indication, is to the
Part or Article of the same number in the Employment (Jersey) Law 2003[1].
2 Article 1
(interpretation and application) amended
In Article 1(1) after the definition “affected employee” there
is inserted –
“ “breastfeeding” includes
the act of expressing breast milk;”.
3 New Part 3B
inserted
After Part 3A (flexible working) there is inserted –
“PART 3B
RIGHTS IN RESPECT OF
PREGNANCY AND BREASTFEEDING
15G Entitlement to leave during pregnancy or breastfeeding
(1) This Article applies in respect of an employee who notifies her
employer in writing that she is pregnant, has given birth within the previous 6 months,
or is breastfeeding.
(2) An employee in respect of whom this Article applies is entitled,
subject to paragraph (8), to leave for any period during which it is not
reasonably practicable –
(a) for the employee to continue to fulfil any usual requirement of
her employment, according to an assessment of significant risks undertaken in
accordance with Article 3 of the Health and Safety at Work (Jersey) Law
1989[2]; and
(b) for the employer to allocate the employee to other duties, alter
her duties, or make appropriate changes to the working environment to enable
her to continue working.
(3) Entitlement to leave under this Article is in addition to, and
does not derogate from, any other entitlement of the employee to rest periods
or to leave under this Part or Parts 3 and 3A.
(4) Subject to paragraph (9), an employee is entitled to be
paid for any period of leave to which she is entitled under this Article, at
the rate of a week’s pay determined in accordance with Schedule 1 and
reduced pro rata.
(5) The right to payment of remuneration under paragraph (4)
does not affect a right of the employee to remuneration under her contract of
employment.
(6) Any remuneration paid to an employee under her contract of
employment in respect of a period of leave under this Article goes towards
discharging any liability of the employer, under paragraph (4), to pay
remuneration in respect of that period, and conversely, any payment of
remuneration under paragraph (4) in respect of that period goes towards
discharging any liability of the employer to pay remuneration under the
employee’s contract of employment in respect of that period.
(7) Where during any period an employee is entitled to leave both
under this Article and under a separate provision (including a provision of a
relevant agreement) or another enactment, the employee may not exercise those
rights separately but may, in taking leave during that period, take advantage
of whichever right is, in any particular respect, the more favourable.
(8) An employer is not obliged to grant leave under this Article –
(a) where the employee has notified the employer that she is pregnant and the employee has failed, within a reasonable
time of being requested in writing to do so, to provide a certificate of her
pregnancy, from –
(i) a
registered medical practitioner,
(ii) a
registered midwife, or
(iii) a
registered nurse;
(b) where the employer knows that the employee is not, or is no
longer, a new or expectant mother;
(c) where the employer cannot establish that the employee remains a
new or expectant mother.
(9) An employer is not obliged to make payment for any period of
leave under this Article where –
(a) the employer has offered the employee suitable alternative
employment at the same rate of pay as her existing employment; and
(b) the employee has unreasonably refused that alternative
employment.
(10) Where the employee’s employment terminates –
(a) after the commencement of a period of leave under this Article;
but
(b) before the time when (apart from this paragraph) that
period would end,
the period of leave ends on
the date of the termination.
15H Entitlement to request temporary variation of terms and conditions
of employment for the purposes of breastfeeding
(1) An employee who is breastfeeding is entitled to apply to her
employer for a variation of her terms and conditions of employment, if the
variation relates to –
(a) the hours during which the employee is required to work;
(b) the times when the employee is required to work; or
(c) the place where the employee is required to work,
and is solely for the purpose
of enabling her to breastfeed.
(2) An application under this Article must –
(a) state the purpose for which the variation is sought; and
(b) specify the variation applied for and the period for which it is
proposed to be effective.
(3) Where an employee has any right, arising under her contract of
employment or otherwise, which corresponds to the entitlement conferred by
paragraph (1) to make an application for a variation in her terms and
conditions of employment –
(a) the employee may not exercise both the entitlement conferred by
paragraph (1) and the corresponding right, but may, in requesting a
variation, rely on whichever of the entitlement, or the right, is the more
favourable; and
(b) if she relies, under sub-paragraph (a), on the
corresponding right as more favourable, the provisions of Article 15I
relating to an application under this Article apply, subject to such
modifications as may be necessary, in relation to that right as though the
exercise of it were such an application.
(4) Entitlement to request a variation of terms and conditions of
employment under this Article is in addition to, and does not derogate from, an
employee’s right to request a change in those terms and conditions under
Article 15A.
15I Employer’s duties in relation to variation under Article 15H
(1) Subject to paragraph (2), an employer to whom an
application under Article 15H is made –
(a) must hold a meeting, at a time convenient to the employer and
employee, to discuss the application within the period of 7 days beginning
with the day on which the application is made;
(b) may agree to the variation as requested by the application, or
vary the employee’s terms and conditions in such other reasonable manner as may
be agreed between the employer and the employee; and
(c) must give the employee notice of his or her decision on the
application, within the period of 14 days beginning with the day on which
the application is made.
(2) Paragraph (1) does not apply where the employer –
(a) agrees to the variation as requested by the application; and
(b) gives notice of his or her decision to the employee, within the
period of 7 days beginning with the day on which the application is made.
(3) Where the employer’s decision is to agree to a variation in the
terms and conditions of the employee’s employment, the notice under paragraph (1)(c)
or (2)(b), as the case may be, must specify the agreed variation and the
period for which it is to be effective.
(4) Where the employer’s decision is to refuse the application, a
notice under paragraph (1)(c) must –
(a) specify the grounds for the refusal; and
(b) set out the appeal procedure for which provision is made by
Article 15J.
(5) If the period of the variation falls within the period of 52 weeks
beginning with the birth of the child, paragraphs (1), (2), (4) and (5)
of Article 55C (right to remuneration during time off to receive
ante-natal care) apply in relation to an employee taking time off for
breastfeeding in the same way as they would apply if the employee were taking
time off for the purpose permitted by that Article.
15J Appeal against refusal of variation
(1) An employee is entitled to appeal to her employer against –
(a) her employer’s decision to refuse an application under Article 15H;
or
(b) a failure by her employer to reach agreement as to a variation
requested by such an application.
(2) An appeal under this Article is made by giving notice of appeal
to the employer –
(a) within the period of 7 days beginning with the day on which
notice of the decision is given, or the failure occurs; and
(b) setting out the grounds of appeal.
(3) Subject to paragraph (4), within the period of 7 days
beginning with the date on which notice of appeal is given, the employer must
hold a meeting with the employee, at a time convenient to the employer and
employee and any person representing the employee, to discuss the appeal.
(4) Paragraph (3) does not apply where, within the period of
7 days beginning with the date on which notice of appeal is given, the
employer –
(a) having considered the appeal, grants the application (whether
unconditionally or by way of an agreed variation of the employee’s terms and
conditions); and
(b) notifies the employee of the decision on the appeal, specifying
any agreed variation and the period for which it is to be effective.
(5) Where a meeting is held under paragraph (3), the employer
must give the employee notice of his or her decision within the period of
7 days beginning with the date of the meeting.
(6) The rights conferred by Article 78A and 78B (rights to be
represented, and to complain to the Tribunal) apply in respect of any meeting
under paragraph (3) as they do in respect of disciplinary and grievance
hearings.
15K Employer’s duty to provide facilities for breastfeeding
(1) Paragraph (2) applies to an employer of an employee who –
(a) continues to breastfeed, following her return to work; and
(b) gives notice to her employer that she requires facilities to be
provided in the workplace for that purpose.
(2) The employer must take all reasonable steps to provide
facilities for breastfeeding in the employee’s workplace, and in determining
what steps are reasonable in the circumstances, the matters to be considered
include (but are not limited to) –
(a) the extent to which any steps are, or would be if taken,
effective to provide suitable facilities;
(b) the extent to which any steps are, or would be if taken,
practical;
(c) the cost of any steps which could be taken;
(d) the extent of the financial, administrative and other resources
available to the employer, including any provided by a third party, for the
purpose of taking such steps;
(e) the characteristics of the employer such as the nature and size
of the employer’s business.
15L Applications, notices and appeals under Part 3B
(1) Unless the contrary is proved, an application under Article 15H
or an appeal under Article 15J is taken as having been made on the day the
application, or (as the case may be) the notice of appeal, is received by the
employer.
(2) An employer and an employee may agree to an extension of any of
the periods referred to in this Part.
(3) A notice or agreement under this Part must be in writing.
15M Complaints to Tribunal for breach of requirement under Part 3B
(1) An employee may present a complaint to the Tribunal that her
employer has contravened a requirement under this Part.
(2) No complaint under this Article may be made –
(a) in respect of an application which has been disposed of by
agreement or withdrawn; or
(b) unless or until the employer –
(i) notifies
the employee of a decision under Article 15J(4)(b) to reject the application
on appeal, or
(ii) contravenes
any of the requirements of Articles 15G, 15I, 15J, 15K or 15L.
(3) The Tribunal must not consider a complaint under this Article unless
the complaint is presented –
(a) before the end of the period of 8 weeks beginning with the
relevant date; or
(b) within such further period as the Tribunal considers reasonable
in a case where the Tribunal is satisfied that it was not reasonably
practicable for the complaint to be presented before the end of that period.
(4) In paragraph (3)(a), reference to the “relevant date” is –
(a) in the case of a failure to pay remuneration in respect of leave
in accordance with Article 15G(4), or in respect
of time off for breastfeeding in accordance with Article 15I(5), the date
which is 28 days after the date on which the employee would normally
expect to receive remuneration for the period of leave in question;
(b) in the case of a refusal to grant leave, or to make appropriate
changes to the employee’s work or working environment, under and in accordance
with Article 15G, the date of the refusal;
(c) in the case of a failure to give notice of a decision, under or
in accordance with Article 15I(1)(c) or 15J(5), the date by which
such notice should have been given;
(d) in the case of a failure to provide facilities for breastfeeding
in accordance with Article 15K, the date on which notice was given under
paragraph (1)(b) of that Article;
(e) in any other case, the date of the contravention complained of.
15N Remedies for breach of Part 3B
Where the Tribunal finds a
complaint presented under Article 15M well-founded, it must make a
declaration to that effect and may –
(a) make an order requiring the employer to reconsider an
application under Article 15H, or a notice under Article 15K;
(b) order the employer to pay remuneration due to the employee under
Article 15G(4) or 15I(5); and
(c) order the employer to pay compensation to the employee of an
amount not exceeding 4 weeks’ pay at the appropriate weekly rate,
calculated in accordance with Schedule 1.”.
4 Part 5A amended
(1) In the heading to Part 5A, “MATERNITY,
ADOPTION AND” is deleted.
(2) The sub-headings “CHAPTER 1” and
“INTERPRETATION” are deleted.
(3) In Article 55A (interpretation), in
paragraph (1) –
(a) in the definition
“adopter” for “or, in a case where 2 people have been matched jointly,
whichever of them has elected to be the child’s adopter for the purposes of
this Part” there is substituted “and in a case where 2 people have been
matched jointly, includes each of those people”;
(b) after the definition
“adopter” there is inserted –
“ “adoption date” means the
date on which a child is placed with an adopter or, in the case of overseas
adoption, the date on which a child who is to be adopted by a person in Jersey
enters Jersey;”;
(c) for the definition
“childbirth” there is substituted –
“ “childbirth” includes,
except where the context otherwise requires –
(a) the birth of a living child at the full term of pregnancy; and
(b) the birth of a child, whether living or dead, at any time after
24 weeks of pregnancy,
and for the purposes of this
Part it is irrelevant whether the child is or is to be placed with a surrogate
parent or not;”;
(d) the definition
“compulsory maternity leave period” is deleted, and after the definition
“childbirth” there is inserted –
“ “entitlement period” has
the meaning given by Article 55D(6);
“expected week of adoption”
means the week, beginning with midnight between Saturday and Sunday, during
which it is expected that the adoption date will occur;”;
(e) the definitions “ordinary
maternity leave” and “ordinary maternity leave period” are deleted;
(f) after the definition
“overseas adoption” there is inserted –
“ “paid parental leave
period” has the meaning given by Article 55E;
“parental leave” means the
leave to which a person is entitled under Article 55D;”;
(g) after the definition
“registered nurse” there is inserted –
(h) the definition “week of
childbirth” is deleted.
(4) After Article 55A the sub-headings
“CHAPTER 2” and “ANTE-NATAL CARE” are deleted.
(5) In Article 55B –
(a) for the heading there is
substituted –
“Right to time off for ante-natal or pre-adoption
appointments”;
(b) for paragraph (1)
there is substituted –
“(1) An employee in relation to whom this Article applies as
provided by paragraph (1A)(a), (1B)(a) or (1C)(a) is entitled to be
permitted by his or her employer to take time off during the employee’s normal
working hours, for the purpose stated in whichever of paragraphs (1A)(b),
(1B)(b) or (1C)(b) is applicable in the employee’s case.”;
(c) in each of paragraphs (1A)
and (1B) for “This Article applies –” there is substituted “This Article applies,
subject to paragraph (2) –”;
(d) after paragraph (1B)
there is inserted –
“(1C) This Article applies, subject to paragraphs (2) and (2A) –
(a) in relation to an employee who has been notified by an approved
adoption society that –
(i) a
child is to be, or is expected to be, placed for adoption with the employee,
and
(ii) the
society has arranged an appointment in Jersey to enable the employee to have
contact with the child or for another purpose connected with the adoption;
(b) for the purpose of enabling the employee to keep that
appointment.”;
(e) in paragraph (2)(a)
for “(1A)” there is substituted “(1A)(a)”;
(f) in paragraph (2)(b)
for “(1B)” there is substituted “(1B)(a)”;
(g) at the end of paragraph (2)(b)
for the full stop there is substituted a semi-colon and there is inserted –
“(c) in the case of an employee to whom this Article applies by virtue
of paragraph (1C)(a), a document showing –
(i) the
date and time of the appointment, and
(ii) that
the appointment has been arranged by or at the request of the same adoption
society which gave the notification described in paragraph (1C)(a).”;
(h) after paragraph (2)
there is inserted –
“(2A) An employee to whom this Article applies by virtue of paragraph (1C)
is not entitled to take time off on or after the date of the child’s placement
for adoption with the employee.”;
(i) in paragraph (4)(c) –
(i) at the end of clause (i) the word
“or” is deleted, and
(ii) at the end of clause (ii)
for the full stop there is substituted a semi-colon and there is inserted –
“(iii) a
potential applicant for a parental order, under section 54 or 54A of the
Human Fertilisation and Embryology Act 2008 of the United Kingdom, in respect
of the expected child.”;
(j) after paragraph (4)
there is inserted –
“(5) In a case where this Article applies by virtue of paragraph (1C)(a)
and more than one child is to be, or is expected to be, placed for adoption
with an employee as part of the same arrangement, this Article has effect
as if –
(a) the purpose specified in paragraph (1C)(b) were the purpose
of having contact with any one or more of the children and any other purpose
connected with any adoption which is part of the same arrangement; and
(b) the reference in paragraph (2A) to the date of the child’s
placement for adoption were a reference to the date of placement of the first
child to be so placed as part of the arrangement.
(6) In a case where 2 people have been matched jointly with a
child for adoption, this Article may apply by virtue of paragraph (1C)(a)
to each of those people.”.
(6) In Article 55C (right to
remuneration during time off) –
(a) in paragraph (1) for
“(1A)” there is substituted “(1A)(a)”;
(b) in paragraph (1A)
for “(1B)” there is substituted “(1B)(a) or (1C)(a)”;
(c) in paragraph (2)
for “Schedule 1,” there is substituted “Schedule 1 as applied by
paragraph 9 of that Schedule, and”;
(d) paragraph (3) is
deleted.
(7) After Article 55C the sub-headings
“CHAPTER 3” and “MATERNITY LEAVE” are deleted, and for Chapters 3 to 5
there is substituted –
“55D Entitlement to parental leave
(a) is the mother of a
child and, subject to paragraph (4), fulfils the requirements in
Article 55F;
(b) is a person who –
(i) has a qualifying relationship with the
mother or adopter of a child,
(ii) fulfils the requirements in Article 55F,
and
(iii) has, or expects to have, responsibility for
the upbringing of the child, or the main responsibility (apart from any
responsibility of the mother) for the upbringing of the child; or
(c) is the adopter of a
child, and fulfils the requirements in Article 55G.
(3) The total amount of
parental leave –
(a) includes; and
(b) except in the case for
which Article 55E(2) provides, must begin with,
a period of 6 weeks of paid parental leave under Article 55E.
(4) In the case for which
Article 55E(2) provides, and for the purposes only of the entitlement to 6 weeks
of paid parental leave under that provision, no regard is to be had as to
whether or not the employee has fulfilled the requirements of Article 55F.
(5) Any period of unpaid
parental leave –
(a) is additional to the
entitlement to paid parental leave under paragraph (3); and
(b) must be taken in
accordance with this Part at any time during, but not after the end of, the
entitlement period.
(6) The “entitlement
period” means the period which –
(a) begins no earlier than
the beginning of the 11th week before the week in which childbirth, or
placement for adoption, is expected to occur; and
(b) ends on –
(i) the date which is 2 years from the
date of childbirth or placement for adoption, or
(ii) the date on which the employment
terminates,
whichever is the sooner.
(7) For the purposes of
this Article, a person has a “qualifying relationship” with a child or its
mother if the person is –
(a) married to, or the
civil partner or partner of –
(i) the child’s mother, or
(ii) where one person only is matched with the
child, the child’s adopter;
(b) the father of the
child; or
(c) a surrogate parent of
the child.
(8) For the purposes of
this Article, an employee is treated –
(a) as having responsibility
or the main responsibility for the upbringing of a child, if the employee would
have had such a responsibility but for the fact that the child was stillborn
after 24 weeks of pregnancy, or has died;
(b) as married to, or the
civil partner or partner of, a child’s mother or adopter, even if the child’s
mother or adopter has died.
(9) An employee’s
entitlement to parental leave under this Article is not affected –
(a) by the birth of more
than one child as a result of the same pregnancy; or
(b) in the case of –
(i) an adoption, by the placement for adoption
of more than one child, or
(ii) an overseas adoption, by more than one
child being adopted,
as part of the same arrangement.
(1) An employer must not require an employee to work during any
period which the employee is entitled to take, and does take, as paid parental
leave (a “paid parental leave period”).
(2) In the case of an employee who is pregnant or has given birth,
the paid parental leave period must begin with the day on which childbirth
occurs.
(3) An employee who would normally have been required, under his or
her contract of employment, to work during a paid parental leave period –
(a) is entitled to be paid remuneration by his or her employer not
exceeding, in total, 6 weeks’ pay at the appropriate weekly rate;
(b) is entitled, during that period, to the benefit of all terms and
conditions of employment which would have applied had he or she been at work
during that period; and
(c) is bound, during that period, by any obligations arising under
those terms and conditions, except as provided by paragraph (1) and (2).
(4) For the purposes of paragraph (3)(a) the appropriate weekly
rate is the amount of one week’s pay, calculated in accordance with Schedule 1.
(5) Any remuneration paid to an employee under a contract of
employment in respect of a paid parental leave period goes towards discharging
any liability of the employer, under paragraph (3), to pay remuneration in
respect of that period, and conversely, any payment of remuneration under
paragraph (3) in respect of such a period goes towards discharging any
liability of the employer to pay remuneration under the employee’s contract of
employment in respect of that period.
(6) Any remuneration to be paid by an employer to an employee under
paragraph (3) is to be reduced by any amount received by the employee by
way of short term incapacity allowance under Article 15 of the Social
Security (Jersey) Law 1974[3], or by way of maternity
allowance under Article 22 of that Law, in respect of the paid parental
leave period.
55F Notification of intention to take parental leave in relation to
childbirth
(1) The requirements mentioned in Article 55D(2)(a) and (b)(ii)
are that –
(a) no later than the end of the 15th week before the expected week
of childbirth, or if it is not reasonably practicable to do so by that time, as
soon afterwards as is reasonably practicable, the employee notifies the
employer in writing of –
(i) the
pregnancy,
(ii) the
expected week of childbirth,
(iii) the
date on which, subject to paragraphs (2) and (4), the employee intends
each parental leave period to start, and
(iv) the
duration of each period of leave which, in accordance with Article 55H,
the employee intends to take;
and
(b) if requested by the employer to do so, the employee provides a
certificate from –
(i) a
registered medical practitioner,
(ii) a
registered midwife, or
(iii) a
registered nurse,
stating the expected week of
childbirth.
(2) An employee who has notified a date (the “original date”) under
paragraph (1)(a)(iii) may vary the original date if the employee notifies
the employer in writing of a new date, by whichever is the earlier of –
(a) 42 days before the original date; or
(b) 42 days before the new date,
or, if neither is reasonably
practicable, as soon as reasonably practicable.
(3) Notification under paragraph (1)(a)(iii) or (2) must not
specify a date earlier than the beginning of the 11th week before the expected
week of childbirth.
(4) Where notification of a new date is given under paragraph (2),
the employer must take all reasonable steps to accommodate an employee’s
intended second and third parental leave periods, and in determining what steps
are reasonable, the matters to be considered include –
(a) the extent of the financial, administrative and other resources
available to the employer, including any resources provided by a third party,
for the purpose of taking such steps;
(b) the characteristics of the employer such as the nature and size
of the employer’s business;
(c) the implications in relation to other employees of the employer;
and
(d) the requirement under Article 55D(5)(b) that the intended
second and third parental leave periods must take place within the entitlement
period.
55G Notification of intention to take parental leave in relation to
adoption
(1) The requirements mentioned in Article 55D(2)(c) are that
the employee –
(a) has notified the approved adoption society of his or her consent
to the placement of a child or, in the case of overseas adoption, has received
official notification of that adoption;
(b) notifies the employer in writing of –
(i) the
intended adoption,
(ii) the
expected week of adoption,
(iii) the
date on which, subject to paragraphs (2) and (5), the employee intends
each parental leave period to start, and
(iv) the
duration of each period of leave which, in accordance with Article 55H,
the employee intends to take;
and
(c) if requested by the employer to do so, provides evidence in
writing of the expected week of adoption notified to the employer under
paragraph (1)(b)(ii).
(2) An employee who has notified a date (the “original date”) under
paragraph (1)(b)(iii) may vary the original date if the employee notifies
the employer in writing of a new date, by whichever is the earlier of –
(a) 42 days before the original date; or
(b) 42 days before the new date,
or, if neither is reasonably
practicable, as soon as reasonably practicable.
(3) Notification under paragraph (1)(b) must be given to the
employer –
(a) no later than 7 days after the date on which the employee
receives official notification of having been matched with the child for the
purposes of adoption or, in the case of overseas adoption, after the employee
receives notice of the date on which the child is expected to enter Jersey; or
(b) in a case where it is not reasonably practicable to comply with
sub-paragraph (a), as soon as is reasonably practicable.
(4) Notification under paragraph (1)(b)(iii) or (2) must not
specify a date earlier than the beginning of the 11th week before the
expected week of adoption.
(5) Where notification of a new date is given under paragraph (2),
the employer must take all reasonable steps to accommodate an employee’s
intended second and third parental leave periods, and in determining what steps
are reasonable, the matters to be considered include –
(a) the extent of the financial, administrative and other resources
available to the employer, including any resources provided by a third party,
for the purpose of taking such steps;
(b) the characteristics of the employer such as the nature and size
of the employer’s business; and
(c) the requirement under Article 55D(5)(b) that the intended
second and third parental leave periods must take place within the entitlement
period.
55H Periods of parental leave
(1) In the absence of any relevant agreement to more favourable
effect between the employer and the employee, an employee may choose to take
the parental leave (including, except in the case for which Article 55E(2)
provides, paid parental leave) to which he or she is entitled under this Part –
(a) in no more than 3 separate periods during the entitlement
period; and
(b) for no less than 2 weeks in the case of each such period.
(2) Subject to paragraph (3), the calculation of a period of
parental leave begins on –
(a) the date notified under Article 55F(1)(a)(iii) or Article 55G(1)(b)(iii),
as the case may be; or
(b) where the employee has notified a new date under Article 55F(2)
or 55G(2), on that new date (or if a new date has been notified more than once,
on the last such date).
(a) an employee has chosen to begin a period of parental leave on
the date on which the child is born or adopted; and
(b) he or she is at work on that date,
the period of parental leave
begins on the day after that date.
(4) Where the employee’s employment terminates –
(a) after the commencement of a period of parental leave; but
(b) before the time when (apart from this paragraph) that period
would end,
the period of parental leave
ends on the date of the termination.
55I Application of terms and conditions during unpaid parental leave
(1) This Article applies in respect of any period of parental leave
other than paid parental leave under Article 55E.
(2) An employer must not require an employee to work during any
period which the employee is entitled to take, and does take, as parental
leave.
(3) An employee who takes parental leave –
(a) is entitled, during the period of that leave, to the benefit of
all terms and conditions of employment, except those as to remuneration, which
would have applied had he or she been at work during that period; and
(b) is bound during that period by any obligations arising under
those terms and conditions except as provided by paragraph (2).
(4) For the purposes of paragraph (3)(a), any wages or salary
payable to, or bonus or commission for work done by, the employee which are
attributable –
(a) to a period during which the employee is on parental leave, are
to be treated as remuneration; and
(b) to a period (other than a parental leave period) before the
beginning of any period of the employee’s parental leave, are not to be treated
as remuneration.
55J Work during period of parental leave
(1) An employee may carry out work for his or her employer without
bringing a period of parental leave, or the entitlement period, to an end.
(2) For the purposes of this Article, and subject to paragraph (3) –
(a) any work carried out on any day constitutes a day’s work; and
(b) work means any work done under the employee’s contract of
employment and may include any training or other activity undertaken for the
purposes of his or her employment.
(3) Reasonable contact from time to time between an employee and his
or her employer, for such purposes as discussing the employee’s return to work –
(a) does not constitute work; and
(b) does not bring a period of parental leave, or the entitlement
period, to an end.
(4) This Article does not confer any right, on an employer, to
require any work to be carried out during an employee’s parental leave.
(5) Any day’s work carried out under this Article does not have the
effect of extending the total duration of a period of parental leave or of the
entitlement period.
55K Notification of intention to return to work
(1) An employee who intends to return to work earlier than the end
of a particular period of parental leave must give his or her employer not less
than 42 days’ notice in writing of the intended date of such return.
(2) The employer must take all reasonable steps to accommodate an
employee’s intended early return to work, and in determining what steps are
reasonable, the matters to be considered include –
(a) the extent of the financial, administrative and other resources
available to the employer, including any resources provided by a third party,
for the purpose of taking such steps;
(b) the characteristics of the employer such as the nature and size
of the employer’s business; and
(c) the requirement under Article 55D(5)(b) that the intended
second and third parental leave periods must take place within the entitlement
period.
(3) If an employee attempts to return to work earlier than the end
of that period without complying with paragraph (1), the employer may,
subject to paragraph (4), postpone the employee’s return to such a date as
will secure that the employer has 42 days’ notice of the employee’s return
to work and, if the employer does so, the employer must notify the employee in
writing of that date.
(4) An employer may not, under paragraph (3), postpone an
employee’s return to work to a date occurring after the end of the particular
period of parental leave in question.
(5) Where an employee is notified of a postponed date for return to
work under paragraph (3), the employer is under no obligation to pay
remuneration to the employee until that postponed date (even if the employee
returns to work before that date).
55L Right to return to work after parental leave
(1) An employee returning to work immediately after a period of
parental leave is entitled to return to the job in which he or she was employed
immediately before that period.
(2) The right conferred by paragraph (1) is a right to return –
(a) with such seniority, pension rights and all other rights in
relation to the employee’s job as he or she would have had if he or she had not
been absent on such leave; and
(b) on terms and conditions no less favourable than those which
would have applied if he or she had not been so absent.
55M Offence of making false statements etc.
(1) If, for purposes connected with the provisions of this Part, a person –
(a) makes, or knowingly causes or allows to be made, a statement; or
(b) produces or furnishes, or knowingly causes or allows to be
produced or furnished, a document, record or information,
which the person knows to be
false in a material particular, the person is guilty of an offence.
(2) A person guilty of an offence under this Article is liable to
imprisonment for a term of 12 months and to a fine.”.
(8) Before Article 55R the sub-headings
“CHAPTER 6” and “CONTRACTUAL RIGHTS AND ACCESS TO TRIBUNAL” are deleted.
(9) In Article 55R –
(a) for the heading there is
substituted –
“Contractual rights to time off for ante-natal and pre-adoption
appointments and for parental leave”;
(b) for paragraph (1)(a)
there is substituted –
“(a) is entitled to time off under this Part –
(i) for
the purpose of attending an ante-natal or pre-adoption appointment, or
(ii) by
way of parental leave; and”.
(10) In Article 55S (complaints to
Tribunal), for paragraph (4)(a) to (g) there is substituted –
“(a) in the case of an alleged contravention of Article 55B(1),
the date of the ante-natal appointment referred to in either Article 55B(1A)
or 55B(1B), or of the appointment referred to in Article 55B(1C),
whichever is the provision by virtue of which Article 55B(1) applies in
the particular case;
(b) in the case of an alleged contravention of Article 55C(1)
or (1A) or Article 55E(3)(a), the date which is 28 days after
the date on which the employee concerned would expect normally to receive
remuneration for the period of time off under Article 55C or parental
leave under Article 55E;
(c) in the case of an alleged contravention of rights connected with
parental leave conferred by any of Articles 55D, 55E, 55F(2), or 55H to
55L, the date of the day immediately following the day on which the particular
period of parental leave in question ends;
(d) in any other case, the date of the contravention complained
of.”.
(11) In Article 55T (remedies for breach of
Part 5A), in paragraph (1)(a) for “55D(2) or (3)” there is substituted
“Article 55E(3)(a)”.
5 Schedule 1 amended
(1) In this Article,
references to a paragraph by number are to the paragraph of the same number in
Schedule 1 to the Employment (Jersey) Law 2003[4].
(2) In the sub-heading to Schedule 1 for
“Articles 13, 55C, 55D,” there is substituted “Articles 13, 15N, 55C,
55E,”.
(3) In paragraph 5 –
(a) for sub-paragraph (b)
there is substituted –
“(b) in the case of an employee making an application –
(i) under
Article 15A, for flexible working arrangements, or
(ii) under
Article 15H, to vary terms and conditions of employment for the purpose of
breastfeeding,
the calculation date shall be
the day on which the application was made;
“(ba) in
the case of an employee taking time off under Article 15G, the calculation
date shall be –
(i) where
the day before the day on which the time off begins falls within a parental
leave period, the day before the beginning of that period, or
(ii) otherwise,
the day before the day on which the time off begins;
(bb) in the case of an employee requiring facilities to be provided
for the purpose of breastfeeding under Article 15K, the calculation date
shall be the day before the day on which the employee gave notice of the
requirement to the employer;”;
(d) for sub-paragraph (d)
there is substituted –
“(d) in the case for which Article 55E(2) provides, the
calculation date shall be the day before the commencement of the employee’s
paid parental leave period;”.
(4) In paragraph 9 –
(a) in the heading for “or
compulsory maternity leave” there is substituted
“or paid parental leave”;
(b) for sub-paragraph (1)(b)
there is substituted –
“(b) entitled to take paid parental leave under Article 55E.”.
6 Minor and consequential
amendments to Employment Law
(1) In Article 31 (the right not to suffer
detriment), in paragraph (3)(c) –
(a) for “Part 3A, 5A or
5B” there is substituted “Part 3A, 3B, 5A or 5B”;
(b) in clause (iii)
after “Part 3A” there is inserted “or 3B”;
(c) in clause (iv)
“Chapter 2, 3, 4 or 5 of” is deleted;
(d) in clause (v) for “during
her maternity leave period or during his or her adoption leave period” there is
substituted “during his or her parental leave period”;
(e) in clause (vi)
“maternity leave, adoption leave or” is deleted.
(2) In Article 58 (change of employer) at
the end there is inserted –
“(7) Nothing in this Article derogates from Regulation 14 of
the Companies (Demerger) (Jersey) Regulations 2018[5] (which has effect to provide
that, among other matters, a period of employment with a demerging company is
to be treated as a period of employment with the demerged company, and the
demerger is not to be treated as interrupting the continuity of that period).”.
(3) In Article 67 (dismissal for family or
other reasons), in paragraph (1) –
(a) in sub-paragraph (c)
after “Part 3A” there is inserted “or 3B”;
(b) in sub-paragraph (d)
“Chapter 2, 3, 4 or 5 of” is deleted;
(c) in sub-paragraph (e)
for “during her maternity leave period or during his or her adoption leave
period” there is substituted “during his or her parental leave period”;
(d) in sub-paragraph (f)
“maternity leave, adoption leave or” is deleted.
(4) In Article 71 (replacements), in
paragraph (2) for “maternity leave (whether compulsory or ordinary, as
defined in Article 55A(1)), adoption leave under Chapter 4 of Part 5A,
or parental leave under Chapter 5 of that Part” there is substituted
“parental leave under Part 5A”.
(5) In Article 104 (Regulations and
Orders) paragraph (3B) is deleted.
7 Consequential
amendments to Discrimination Law
In the Discrimination (Jersey) Law 2013[6] –
(a) in Article 6 (what
constitutes direct discrimination) –
(i) for sub-paragraphs (6)(b)
and (c) there is substituted –
“(b) her exercising or seeking to exercise the right to parental
leave.”;
(ii) for sub-paragraph (7)(a)
there is substituted –
“(a) if she has the right to parental leave –
(i) at
the end of her entitlement period, or
(ii) if
earlier, when she returns to work after the pregnancy or (as the case may be)
the end of her final period of parental leave;”;
(iii) in sub-paragraph (7)(b)
for “2 weeks” there is substituted “18 weeks”;
(iv) in sub-paragraph (8)
for “protected characteristics of pregnancy and maternity,” there is
substituted “protected characteristics of pregnancy, maternity and sex,”;
(v) in sub-paragraph (9),
“who has given birth within the previous 26 weeks” is deleted;
(vi) for paragraph (10)
there is substituted –
“(10) In this Article “entitlement period” and “parental leave” have the
same meanings as are given to those expressions by Part 5A of the Employment
(Jersey) Law 2003[7].”;
(b) in Schedule 2 –
(i) paragraph 22 is
deleted;
(ii) in paragraph 23,
in sub-paragraph (b) for “maternity leave” there is substituted “parental
leave”; and
(iii) in the heading to
paragraph 24 for “maternity pay” there is substituted “paid parental
leave”.
8 Transitional provision
The amendments made to the Employment (Jersey) Law 2003[8] by Articles 4, 5 and 6,
in so far as these relate to parental leave, have effect only in relation to
employees whose expected week of childbirth or, as the case
may be, of adoption begins on or after the first Sunday following the date
on which this Law comes into force.
9 Citation and
commencement
This Law may be cited as the Employment (Amendment No. 11) (Jersey)
Law 2020 and comes into force on such day or days as the States may by Act
appoint.
L.-M. HART
Deputy Greffier of the States