Employment
(Amendment No. 10) (Jersey) Law 2016
A LAW to amend further the Employment
(Jersey) Law 2003
Adopted by the
States 25th May 2016
Sanctioned by
Order of Her Majesty in Council 12th October 2016
Registered by the Royal
Court 21st
October 2016
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
1 Interpretation
In this Law, “Law” means the Employment
(Jersey) Law 2003[1].
2 Article 7
amended
In Article 7(1) of the Law, for the words from
“determine” to the end there shall be substituted the following –
“determine –
(a) what particulars ought to have been included
or referred to in a statement so as to comply with the requirements of the
Article concerned; and
(b) whether any compensation should be paid by
the employer to the employee (and if so, subject to Article 8(1)(b), the
amount of such compensation) by reason of the employer’s failure to
comply with such requirements.”.
3 Article 8
amended
In Article 8 of the Law –
(a) in paragraph (1)
for the words from “or 4,” to the end there shall be substituted
the following –
“or 4 –
(a) the employer shall be deemed to have given
to the employee a statement in which those particulars were included, or
referred to, as specified in the decision of the Tribunal; and
(b) the Tribunal may order the employer to pay
compensation to the employee of an amount not exceeding 4 weeks’
pay.”; and
(b) after
paragraph (2) there shall be added the following paragraph –
“(3) The payment of a fine by the
employer upon conviction for an offence under Article 9 shall be
additional to, and shall not be taken as discharging, any liability of the
employer to pay compensation under this Article.”.
4 Article 10
amended
In Article 10 of the Law –
(a) in paragraph (2B) –
(i) for
the words “has taken a rest period which has been interrupted,”
there shall be substituted the following sub-paragraphs –
“–
(a) has been prevented by the employer, whether
by the employer’s refusal or otherwise, from taking a rest period to
which the employee is entitled under paragraph (1) or (2); or
(b) has taken a rest period which has not been
an uninterrupted rest period within the meaning given by paragraph (2A),”,
(ii) for
the words “rest day” in each place in which they occur there shall
be substituted the words “rest period”, and
(iii) for
the words “was interrupted” there shall be substituted the words
“was due to be taken or, as the case may be, was interrupted”;
(b) after
paragraph (2B) there shall be inserted the following paragraphs –
“(2C) Where the employer prevents the employee from
exercising the entitlement conferred by paragraph (1) or (2) (whether by
refusal or otherwise, and including by failing to compensate the employee in
accordance with paragraph (2B)) the employee may present a complaint to
the Tribunal that the employer has so acted.
(2D) The Tribunal shall not consider a complaint under paragraph (2C)
in a case where the employment to which the complaint relates has ceased unless
an application requiring the reference to be made was made –
(a) before the end of the period of 8 weeks
beginning with the date on which the employment ceased; 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 made before the end of that
period of 8 weeks.
(2E) Where the Tribunal finds a complaint presented under paragraph (2C)
to be well-founded, the Tribunal may order the employer to pay compensation to
the employee of an amount not exceeding 4 weeks’ pay.”.
5 Article 31
amended
In Article 31(3)(c) of the Law –
(a) for
the words “or 5A” there shall be substituted the words
“, 5A or 5B”;
(b) at
the end of clause (v) the word “or” shall be deleted; and
(c) after
clause (vi) there shall be added –
(vii) service
as a reservist, as defined by Part 5B.”.
6 Article 53
amended
In Article 53(1) of the Law, for the words from
“determine” to the end there shall be substituted the following –
“determine –
(a) what particulars ought to have been included
or referred to in a statement so as to comply with the requirements of the
Article concerned; and
(b) whether any compensation should be paid by
the employer to the employee (and if so, subject to Article 54(1A), the
amount of such compensation) by reason of the employer’s failure to comply
with such requirements.”.
7 Article 54
amended
In Article 54 of the Law –
(a) after
paragraph (1) there shall be substituted the following paragraph –
“(1A) Where the Tribunal makes a declaration that it
finds in accordance with paragraph (1)(a) or (b), the Tribunal may
further order the employer to pay compensation to the employee of an amount not
exceeding 4 weeks’ pay.”; and
(b) after
paragraph (3) there shall be added the following paragraph –
“(4) The payment of a fine by the
employer upon conviction for an offence under Article 55 shall be
additional to, and shall not be taken as discharging, any liability of the
employer to pay compensation under this Article.”.
8 Article 57
amended
In Article 57 of the Law, for paragraph (1) there shall be
substituted the following paragraph –
“(1) Except so far as otherwise
provided by –
(a) the following provisions of this Article; or
(b) any of Articles 55Z, 60B or 77G,
any week which does not count
under paragraphs (2) or (3) shall break the continuity of the period of
employment for the purposes of this Law.”.
9 Part
5B inserted
After Part 5A of the Law there shall be inserted the following
Part –
“PART 5B
reservists’ rights
55U Interpretation
(1) For the purposes of this Part, ‘reservist’
means a person who is –
(a) a member of one of the reserve forces; or
(b) a person liable to be recalled for service
under Part VII of the Reserve Forces Act 1996 of the United Kingdom;
and
‘service’ means
permanent service of a reservist pursuant to –
(a) call out under Part IV, V or VI of that
Act; or
(b) recall on the authority of a recall order
under Part VII of that Act.
(2) In paragraph (1)(a), ‘reserve
forces’ means the Royal Fleet Reserve, the Royal Naval Reserve, the Royal
Marines Reserve, the Regular Reserve, the Army Reserve, the Royal Air Force
Reserve or the Royal Auxiliary Air Force.
55V Requirement
to notify intention of returning to work
(1) A reservist who intends to return to work following
service shall give his or her former employer notice of that intention in
accordance with paragraphs (2) and (3).
(2) Notice under paragraph (1) shall –
(a) be in writing;
(b) be given by the reservist or by another
person acting with the reservist’s authority;
(c) subject to paragraph (4), be given during
the period –
(i) beginning
with the end of the service, and
(ii) ending
with the third Monday after the end of the service; and
(d) state the date, having regard to paragraph (3),
on which the reservist will be available for work.
(3) The date stated in the notice shall be no
later than 21 days after the latest date on which notice may be given
under paragraph (2)(c).
(4) A notice given after the end of the period
described in paragraph (2)(c) is not invalid if –
(a) the person giving it was prevented from
doing so within that period by sickness or other reasonable cause; and
(b) it was given as soon as reasonably possible
after the end of that period.
55W Right
to return and continuity of terms and conditions etc.
(1) Subject to paragraphs (3) and (4), where
notice is validly given under Article 55V the former employer shall take
the reservist back into work at the first opportunity, on or after the date
stated in that notice, at which it is reasonable and practicable for the former
employer to do so.
(2) If, owing to sickness or other reasonable
cause, the reservist is not available for work until after the expiry of the 21 days’
period mentioned in Article 55V(3) –
(a) his or her right to return to work shall not
be invalidated by reason only of the expiry of that period; and
(b) a further date, being as soon as reasonable
after the expiry of that period, may be notified by the reservist as the date
on which he or she will be available for work.
(3) For the purposes of paragraph (1), an
opportunity to take the reservist back into work shall not be taken to have
arisen if the former employer makes work available to the reservist but –
(a) the reservist has, or reasonably believes
that he or she has, reasonable cause for not taking it; and
(b) the reservist, or another person acting with
the reservist’s authority, gives notice accordingly to the former employer –
(i) in
writing, and
(ii) stating
the facts on which the reservist relies as constituting the reasonable cause.
(4) Nothing in this Article obliges the former
employer to take a reservist back into work after 6 months have elapsed
from the end of the reservist’s service.
(5) A reservist’s right to return to work
is a right to return to the job in which he or she was employed immediately
before his or her service, or to an equivalent job.
(6) The right conferred by paragraph (1) is
a right to return –
(a) with such seniority, pension rights and all
other rights in relation to his or her job as the reservist would have had if
he or she had not been absent on service; and
(b) on terms and conditions no less favourable
than those which would have applied if he or she had not been so absent.
55X Complaints
to Tribunal
(1) A person may present a complaint to the
Tribunal on any or all of the following grounds, namely that –
(a) the former employer has failed to take the
reservist back into employment either in accordance with Article 55W(1),
or at all;
(b) the former employer has failed to have
regard to Article 55W(2) or (5) (in such a respect as is specified in
the complaint).
(2) No complaint may be made under this Article
in respect of any matter which has been settled by agreement or withdrawn.
(3) The Tribunal shall not consider a complaint
under this Article unless it 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 made before the end of that
period of 8 weeks.
(4) For the purposes of paragraph (3) the
‘relevant date’ is the day immediately after the date stated in the
notice given by the reservist under Article 55V.
(5) The right to present a complaint under this
Article is without prejudice to any other right conferred on an employee under
this Law.
(6) The States may amend this Article by
Regulations.
55Y Remedies
for infringement of right under this Part
(1) Where the Tribunal finds a complaint under Article 55X
well-founded it shall make a declaration to that effect and may either –
(a) make a direction for reinstatement, and in
doing so may specify –
(i) any
rights and privileges (including seniority and pension rights) which must be
restored to the complainant, and
(ii) the
date by which the former employer must comply with the direction;
(b) make a direction for re-engagement, and in
doing so may specify the terms on which the re-engagement is to take place,
including –
(i) the
identity of the former employer, or a successor or associate (as defined by Article 79(7))
of the employer,
(ii) the
nature of the employment,
(iii) the
remuneration for the employment,
(iv) any
rights and privileges (including seniority and pension rights) which must be
restored to the complainant upon reinstatement, and
(v) the
date by which the former employer (including the employer’s successor or
associate) must comply with the direction; or
(c) make an award of compensation to be paid by
the former employer to the complainant, of such an amount as the Tribunal
thinks just and equitable, having regard to all the circumstances, up to
26 weeks’ pay.
(2) Where the Tribunal makes a direction under paragraph (1)
and the former employer does not fully comply with the terms of such direction,
then unless the former employer can satisfy the Tribunal that such compliance
was not practicable, the Tribunal shall make an award of further compensation
to be paid by the former employer to the complainant, of such an amount as the
Tribunal thinks fit, up to 26 weeks’ pay.
(3) For the purposes of paragraphs (1) and
(2) a week’s pay shall be calculated in accordance with Schedule 1.
55Z Continuity
following return to work etc. under this Part
(1) Where a reservist returns to work
following –
(a) the exercise of the right conferred by Article 55W;
or
(b) reinstatement or re-engagement pursuant to a
direction given under Article 55Y,
his or her service shall not
be taken to break the period of employment when computing its length for the
purposes of this Law, but (subject to paragraph (2)) the length of the
service shall not be counted in the computation.
(2) The length of any service by an employee who
has returned to work as described in paragraph (1) shall be counted in the
computation, if and to the extent that a relevant agreement provides that the
service should be so counted.”.
10 Article 60A
amended
In Article 60A of the Law, the existing text shall be numbered
as paragraph (1) and after it there shall be added the following
paragraph –
“(2) Remuneration paid to the
employee under his or her contract of employment in respect of redundancy shall
go towards discharging the employer’s liability under paragraph (1)
to make a redundancy payment; and conversely any redundancy payment under that
paragraph shall go towards discharging any liability of the employer to pay remuneration
to the employee under his or her contract of employment in respect of
redundancy.”.
11 Article 71
amended
In Article 71 of the Law –
(a) in paragraph (2)(a)
for the words “pregnancy or childbirth” there shall be substituted
the words “pregnancy, childbirth or adoption, including but not limited
to absence because of 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”; and
(b) after
paragraph (3) of the Law there shall be inserted the following
paragraph –
“(3A) This Article also applies to an employee
where –
(a) on engaging the employee the employer
informs him or her in writing that his or her employment will be terminated on
the resumption of work by another employee who is, or will be, absent wholly
because of service as a reservist within the meaning given by Part 5B; and
(b) the employer dismisses the employee to make
it possible to allow the resumption of work by the other employee.”.
12 Article 73
amended
In Article 73 of the Law –
(a) after
paragraph (2) there shall be inserted the following paragraph –
“(2A) Paragraph (1) shall not apply if the
reason or principal reason for the dismissal is, or is connected with, the
employee’s membership of a reserve force (as defined in Article 55U).”;
and
(b) paragraph (3)
shall be deleted.
13 Article 85
substituted
For Article 85 of the Law there shall be substituted the
following Article –
“85 Secretary
of the Tribunal
(1) The Judicial Greffier shall act as Secretary
of the Tribunal.
(2) The Judicial Greffier may delegate, wholly
or partly, the function conferred by paragraph (1), to an officer of the
Judicial Greffe.”.
14 Schedule 1
amended
In paragraph 5 of Schedule 1 to the Law, after sub-paragraph (e)
there shall be inserted the following sub-paragraph –
“(ea) in the case of a complaint to the
Tribunal under Article 55X, the calculation date shall be the last day of
work for the former employer before the first day of the reservist’s
service;”.
15 Transitory
saving for Article 73(3)
In relation to an employee employed immediately before the
commencement of this Law under such a contract as described in Article 73(3)
of the Law, that paragraph shall continue in effect for the duration of the
contract, as though it were not repealed by Article 12(b).
16 Repeals
(1) In
the Employment (Amendment No. 5) (Jersey) Law 2010[2], Article 6 is repealed.
(2) In
the Employment (Amendment No. 6) (Jersey) Law 2012[3], Article 2 is repealed.
(3) In
the Employment (Amendment No. 7) (Jersey) Law 2012[4], Article 9 is repealed.
17 Citation
and commencement
This Law may be cited as the Employment (Amendment No. 10)
(Jersey) Law 2016 and shall come into force 7 days after it is registered,
except that –
(a) if
registration takes place before 1st September 2016, Articles 12(b)
and 15 shall not come into force until that date; and
(b) Articles 2,
3, 4, 5, 6, 7, 8, 9, 11(b), 12(a) and 14 shall come into force on 1st April 2017.
dr. m. egan
Greffier of the States