Employment
(Amendment No. 4) (Jersey) Law 2009
A LAW to amend further the Employment
(Jersey) Law 2003
Adopted by the
States 22nd October 2008
Sanctioned by
Order of Her Majesty in Council 18th March 2009
Registered by the
Royal Court 27th
March 2009
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, subject to paragraphs (3) and (6).
(2) On making a direction for reinstatement, the
Tribunal shall specify –
(a) any rights and privileges (including
seniority and pension rights) which must be restored to the complainant upon
reinstatement; and
(b) the date by which the direction must be
complied with.
(3) A direction shall include any amount payable
by the employer in respect of any benefit the complainant might reasonably be
expected to have had but for the dismissal, excluding arrears of pay, during
the period between the effective date of termination and the date of
reinstatement.
(4) For the purposes of paragraph (3),
‘pay’ excludes –
(a) any contributions payable by the employer in
respect of the complainant to any superannuation scheme or any bona fide
pension scheme or any other scheme for the benefit of employees or for the
benefit of any wife or widow of such employees or of employees’ children
or other dependents;
(b) any bonus the complaint might reasonably be
expected to receive during his or her employment by way of remuneration.
(5) For the purposes of paragraph (4)(b),
‘bonus’ does not include tips, commission or similar payments.
(6) 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
benefit from that improvement as if the improvement were included in the terms
and conditions of employment from the date on which the complainant is
reinstated.
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 the complainant might reasonably be expected to have had
but for the dismissal, excluding arrears of pay, for the period between the
effective date of termination and the date of reinstatement.
(e) any rights and privileges (including
seniority and pension rights) which must be restored to the complainant upon
reinstatement; and
(f) the date by which the direction must
be complied with.
(3) For the purposes of paragraph (2)(d), ‘pay’
excludes –
(a) any contributions payable by the employer in
respect of the complainant to any superannuation scheme or any bona fide
pension scheme or any other scheme for the benefit of employees or for the
benefit of any wife or widow of such employees or of employees’ children
or other dependents; and
(b) any bonus the complaint might reasonably be
expected to receive during his or her employment by way of remuneration.
(4) For the purposes of paragraph (3)(b),
‘bonus’ does not include tips, commission or similar payments.
(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) The amount of the compensation shall be such
as the Tribunal thinks fit of an amount up to 26 weeks’ pay.
(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), (8), (9) and (10).
(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; 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) that contributed directly to the dismissal 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.
(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.
(9) The complainant has refused an offer by the
employer made before commencement of proceedings before the Tribunal for an
amount equal to the maximum award that the Tribunal could award in respect of
the complainant under Article 77(2) or Article 77E(3)(a) (as the case
requires).
(10) Any circumstances that the Tribunal considers
would be just and equitable to take into account.
77G Continuity
of employment
If, following a direction
under Article 77A, a complainant is reinstated or re-engaged by his or her
employer or by a successor or associated employer as defined in
Article 79(7) (as the case requires), the period beginning with the
effective date of termination and ending with the date of reinstatement or
re-engagement –
(a) does not break the continuity of the period
of employment; and
(b) counts in computing the period of
employment.
77H Transitional
provision
(1) In this Article, ‘the specified
date’ means the date the Employment (Amendment No. 4) (Jersey)
Law 2009 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 2009
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 2009.
(2) This
Law shall come into force on such day as the States may by Act appoint.
m.n. de la haye
Greffier of the States