A LAW to amend and consolidate enactments relating to employers’ obligations to specify terms of employment, the payment of wages, and the notice required to terminate contracts of employment; to provide for compulsory minimum periods of leave and rest time for employees; to provide employees with rights not to be unfairly dismissed and to be paid a minimum wage; and to repeal and replace enactments for the establishment and jurisdiction of Tribunals to hear and determine employment disputes; and for incidental and connected purposes.

Adopted by the States 8th July 2003

Sanctioned by Order of Her Majesty in Council 13th November 2003

Registered by the Royal Court 5th December 2003

THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have adopted the following Law –

PART 1

GENERAL

1 Interpretation and application

(1) In this Law, unless the context otherwise requires –

“civil proceedings” means proceedings before the Tribunal or civil proceedings before any court;

“collective agreement” means an agreement which has been settled by machinery of negotiation or arbitration to which the parties are organisations of employers and of employees representative of substantial proportions of the employers and employees engaged in the trade or industry concerned;

“Committee” means the Employment and Social Security Committee;

“employ” means to enter into and perform –

(a) a contract of service or apprenticeship, whether express or implied, and, if express, whether oral or in writing; or

(b) subject to Article 36, any other contract, whether express or implied and, if express, whether oral or in writing, whereby the other party to the contract undertakes to do, or perform personally, work or services for the first party to the contract, and the status of the first party to the contract is not, by virtue of the contract, that of a client or customer of any profession or trade or business undertaking carried on by the other party to the contract,

and other parts of speech, grammatical forms, words and expressions derived from the word “employ” shall have corresponding meanings;

“employment dispute” means a dispute between an employer or employers and an employee or employees in the employment of that employer or employers which is connected with the terms of employment or with the conditions of labour of any of those employees or with the rights and duties of an employer or an employee under this Law but does not include a dispute as to the entering into, or failure to enter into, a contract of employment with a person;

“enforcement notice” shall be construed in accordance with Article 27;

“fixed term contract of employment” means a contract of employment which, according to its terms, will expire on –

(a) the expiry of a specified period of time;

(b) a specified date;

(d) the completion of a specified task or project;

“JACS” means the Jersey Advisory and Conciliation Service established by the Jersey Advisory and Conciliation (Jersey) Law 2003;[1]

“job”, in relation to an employee, means the nature of the work which he is employed to do in accordance with his contract of employment and the capacity in and place at which he is so employed;

“lock-out” means –

(a) the closing of a place of employment;

(b) the suspension of work; or

in consequence of a dispute, done with a view to compelling those persons, or to aid another employer in compelling persons employed by him, to accept terms or conditions of or affecting employment;

“minimum wage” shall be construed in accordance with Article 16(3);

“notice” means notice in writing;

“officer acting for the purposes of this Law” means an officer appointed under Article 96;

“pay reference period” shall be construed in accordance with Article 16(4);

“penalty notice” shall be construed in accordance with Article 29;

“person who qualifies for the minimum wage” shall be construed in accordance with Article 16(2) and related expressions shall be construed accordingly;

“prescribed” means prescribed by the Committee by Order;

“relevant agreement”, in relation to an employee, means any provision of a collective agreement which forms part of a contract between him and his employer, or any other agreement in writing which is legally enforceable as between the employee and his employer;

“strike” means the cessation of work by a body of persons employed acting in combination, or a concerted refusal or a refusal under a common understanding of any number of persons employed to continue to work for an employer in consequence of a dispute, done as a means of compelling their employer or any person or body of persons employed, or to aid other employees in compelling their employer or any person or body of persons employed, to accept or not to accept terms or conditions of or affecting employment;

“trade union” means an organisation (whether temporary or permanent) –

(a) which consists wholly or mainly of employees of one or more descriptions and whose principal purposes include the regulation of relations between employees of that description or those descriptions and employers or employers’ associations; or

(b) which consists wholly or mainly of –

(i) constituent or affiliated organisations which fulfil the conditions in paragraph (a) (or themselves consist wholly or mainly of constituent or affiliated organisations which fulfil those conditions), or

(ii) representatives of such constituent or affiliated organisations,

and whose principal purposes include the regulation of relations between employees and employers or between employees and employers’ associations, or the regulation of relations between its constituent or affiliated organisations;

“Tribunal” means the Tribunal established by Article 81; and

“wages” means remuneration or earnings, however designated or calculated, capable of being expressed in terms of money and fixed by a relevant agreement or by or under an enactment, which are payable by virtue of a contract of employment by an employer to an employee for work done or to be done or for services rendered or to be rendered but does not include pensions contributions paid by the employer or any other ancillary non-monetary benefits.

(2) This paragraph shall apply in any case where an individual (“the agency worker”) –

(a) is supplied by a person (“the agent”) to do work for another (“the principal”) under a contract or other arrangements made between the agent and the principal; but

(b) is not, as respects that work, an employee, because of the absence of a contract of employment between the individual and the agent or the principal; and

(c) is not a party to a contract under which he undertakes to do the work for another party to the contract whose status is, by virtue of the contract, that of a client or customer of any profession or business undertaking carried on by the individual.

(3) In a case where paragraph (2) applies, the other provisions of this Law shall have effect as if there were a contract of employment for the doing of the work by the agency worker made between the agency worker and –

(a) whichever of the agent and the principal is directly responsible for paying the agency worker in respect of the work; or

(b) if neither the agent nor the principal is so responsible, whichever of them pays the agency worker in respect of the work.

(4) A reference in this Law to a person being remunerated for a pay reference period is a reference to the person being remunerated by his employer in respect of his work in that pay reference period.

(5) This Law shall not apply to the employment of a person under which his work (of whatever description) relates to the employer’s family household –

(a) where –

(i) the employee resides in the family home of the employer for whom he works,

(ii) the employee is not a member of that family, but is treated as such, in particular as regards to the provision of accommodation and meals and the sharing of tasks and leisure activities,

(iii) the employee is neither liable to any deduction, nor to make any payment to the employer, or to any other person, in respect of the provision of living accommodation or meals, and

(iv) had the work been done by a member of the employer’s family, this Law would not apply because the conditions in sub-paragraph (b) would be satisfied; or

(b) where –

(i) the employee is a member of the employer’s family,

(ii) the employee resides in the family home of the employer, and

(iii) the employee shares in the tasks and activities of the family,

and the employee’s work is done in that context.

(6) This Law shall not apply to the employment of a person under which his work (of whatever description) relates to the employer’s family business where –

(a) the employee is a member of the employer’s family;

(b) the employee resides in the family home of the employer; and

and the work is done in that context.

(7) A reference in this Law to doing work includes a reference to performing services; and “work” and other related expressions shall be construed accordingly.

(8) This Law shall not apply to the employment of a person as an officer of the States of Jersey Police Force.

2 Redundancy

(1) For the purposes of this Law an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to –

(a) the fact that his employer has ceased or intends to cease –

(i) to carry on the business for the purposes of which the employee was employed by him, or

(ii) to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business –

(i) for employees to carry out work of a particular kind, or

(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer,

have ceased or diminished or are expected to cease or diminish.

(2) For the purposes of paragraph (1) the business of the employer together with the business or businesses of his associated employers shall be treated as one (unless either of the conditions specified in paragraphs (a) and (b) of that paragraph would be satisfied without so treating them).

(3) In paragraph (1) “cease” and “diminish” mean cease and diminish either permanently or temporarily and for whatever reason.

PART 2

EMPLOYMENT PARTICULARS

3 Statement of initial terms of employment

(1) Subject to paragraph (6), not later than 4 weeks after an employee begins employment, the employer shall give to the employee a written statement of the terms of his employment.

(2) A statement given under paragraph (1) shall be signed by the employer, or if the employer is a body corporate or a partnership, by an officer or partner authorized to sign such statements, and shall contain the following particulars –

(a) the names of the employer and employee;

(b) the date when the employment began;

(c) the date on which the employee’s period of continuous employment began (taking into account any employment with a previous employer which, in accordance with Articles 57 and 58, counts towards that period);

(d) the scale or rate of remuneration or the method of calculating remuneration;

(e) the day on which, and the intervals at which, remuneration is paid (that is, weekly, monthly or other specified intervals) and the method of payment;

(f) any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours);

(g) any terms and conditions relating to –

(i) entitlement to holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the employee’s entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated),

(ii) incapacity for work due to sickness or injury, including any provision for sick pay,

(iii) pensions and pension schemes,

(iv) maternity leave,

(v) redundancy, and

(vi) disciplinary and grievance procedures;

(h) the length of notice which the employee is obliged to give and entitled to receive to terminate his contract of employment;

(i) where the employment is not intended to be permanent –

(i) the period for which it is expected to continue,

(ii) if it is for a fixed term, the date when it is to end,

(iii) any event, the occurrence or non-occurrence of which will terminate it, or

(iv) any task or project, the completion of which will terminate it;

(j) the title of the job which the employee is employed to do or a brief description of the work for which he is employed;

(k) either the place of work or, where the employee is required or permitted to work at various places, an indication of that and of the address of the employer;

(l) any collective agreements which directly affect the terms and conditions of the employment including, where the employer is not a party, the persons by whom they were made; and

(m) where the employee is required to work outside Jersey for a continuous period of more than four weeks –

(i) the period for which he is to work outside Jersey,

(ii) the currency in which remuneration is to be paid while he is working outside Jersey,

(iii) any additional remuneration payable to him, and any benefits to be provided to or in respect of him, by reason of his being required to work outside Jersey, and

(iv) any terms and conditions relating to his return to Jersey.

(3) A statement under paragraph (1) may refer the employee for particulars of any of the matters specified in paragraph (2)(g) to the provisions of some other document which the employee has reasonable opportunity of reading in the course of his employment or which is made reasonably accessible to him in some other way.

(4) A statement under this Article may refer the employee for particulars of either of the matters specified in paragraph (2)(h) to the law or to the provisions of any collective agreement directly affecting the terms and conditions of the employment which the employee has reasonable opportunity of reading in the course of his employment or which is made reasonably accessible to him in some other way.

(5) Paragraph (2)(g)(iii) shall not apply to an employee of a body or authority if –

(a) the employee’s pension rights depend on the terms of a pension scheme established under any provision contained in or having effect under any enactment; and

(b) any such provision requires the body or authority to give to a new employee information concerning the employee’s pension rights or the determination of questions affecting those rights.

(6) Where after the beginning of an employee’s employment the employee is to begin to work outside Jersey for a period of more than four weeks, the statement under paragraph (1) shall be given to him not later than the time when he leaves Jersey in order to begin so to work.

(7) A statement under paragraph (1) shall be given to a person even if his employment ends before the end of the period within which the statement is required to be given.

4 Changes in terms of employment

(1) If, after the date on which a statement is given under Article 3, there is a change in the matters, particulars of which are required by Article 3 to be included or referred to in a statement under Article 3, the employer shall give to the employee a written statement containing particulars of the change.

(2) A statement under this Article shall be given at the earliest opportunity and, in any event, not later than –

(a) 4 weeks after the change in question; or

(b) where that change results from the employee being required to work outside Jersey for a period of more than four weeks, the time when he leaves Jersey in order to begin so to work, if that is earlier.

(3) A statement under this Article may refer the employee for particulars of any of the matters specified in Article 3(2)(g) to the provisions of some other document which the employee has reasonable opportunity of reading in the course of his employment or which is made reasonably accessible to him in some other way.

(4) A statement under this Article may refer the employee for particulars of either of the matters specified in Article 3(2)(h) to the law or to the provisions of any collective agreement directly affecting the terms and conditions of the employment which the employee has reasonable opportunity of reading in the course of his employment or which is made reasonably accessible to him in some other way.

(5) If, after an employer has given to an employee a written statement under Article 3 –

(a) the name of the employer is changed, without any change in the identity of the employer; or

(b) the identity of the employer is changed in circumstances in which the continuity of the employee’s period of employment is not broken,

and there is no change in the terms of employment (other than the name of the employer) included or referred to in the statement, the employer, immediately after the change of name or identity, shall give to the employee a written statement notifying him of the change.

5 Power to amend requirement of particulars

The States may by Regulations add to, amend or delete any of the particulars required by Article 3(2) to be contained in a statement under Article 3.

6 Exceptions

(1) Nothing in this Part shall apply to an employee whose normal hours of employment are less than 8 hours a week.

(2) If an employee should at any time come within the exception specified in paragraph (1), this Part shall cease to apply to that employee from that time.

(3) If an employee should at any time cease to come within the exception specified in paragraph (1), this Part shall apply to that employee as if the employment began at that time.

7 References to the Tribunal

(1) Where an employer does not give an employee a statement as required by Article 3 or 4 or where the statement the employer gives does not comply with what is required, the employee may require a reference to be made to the Tribunal to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the Article concerned.

(2) Where –

(a) a statement purporting to be a statement under Article 3 or 4 has been given to an employee; and

(b) a question arises as to the particulars which ought to have been included or referred to in the statement so as to comply with the requirements of this Part,

either the employer or the employee may require the question to be referred to and determined by the Tribunal.

(3) The Tribunal shall not consider a reference under this Article in a case where the employment to which the reference 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 it is satisfied that it was not reasonably practicable for the application to be made before the end of that period of 8 weeks.

8 Determination of references

(1) Where, on a reference under Article 7(1), the Tribunal determines particulars as being those which ought to have been included or referred to in a statement given under Article 3 or 4, 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.

(2) On determining a reference under Article 7(2) relating to a statement purporting to be a statement under Article 3 or 4, the Tribunal may –

(a) confirm the particulars as included or referred to in the statement given by the employer;

(b) amend those particulars; or

as the Tribunal may determine to be appropriate; and the statement shall be deemed to have been given by the employer to the employee in accordance with the decision of the Tribunal.

9 Offences under this part

(1) A person who, being an employer –

(a) fails to give to a person employed by him a written statement of the terms of his employment in accordance with Article 3; or

(b) where there is a change in the matters included or referred to in a statement under Article 3, fails to give a person employed by him a written statement containing particulars of the change in accordance with Article 4,

shall be guilty of an offence and liable to a fine not exceeding level 4 on the standard scale.[2]

(2) On the issue of a summons, or on the arrest and charge of a person, in respect of an offence under paragraph (1) the Connétable or Centenier responsible shall notify the Committee and the Tribunal in writing of the fact.

(3) Where notification under paragraph (2) has been received the Tribunal shall stay any proceedings which may have been or may be started under Article 7 until the criminal proceedings have been concluded and the time available for an appeal has expired.

PART 3

MINIMUM REST PERIODS AND ANNUAL LEAVE

10 Weekly rest period

(1) Subject to paragraph (2), an employee shall be entitled to an uninterrupted rest period of not less than 24 hours in each 7-day period during which he works for his employer.

(2) If the employer and the employee so agree, an employee shall be entitled to either –

(a) two uninterrupted rest periods each of not less than 24 hours in each 14-day period during which he works for his employer; or

(b) one uninterrupted rest period of not less than 48 hours in each such 14-day period,

in place of the entitlement provided for in paragraph (1).

(3) For the purpose of paragraphs (1) and (2), a 7-day period or a 14-day period shall be taken to begin –

(a) at such times on such days as may be specified for the purposes of this Article in a relevant agreement; or

(b) where there are no provisions of a relevant agreement which apply, at the start of each week or every other week.

(4) In a case where, in accordance with paragraph (3), 14-day periods are to be taken to begin at the start of every other week, the first such period applicable in the case of a particular employee shall be taken to begin –

(a) if the employee’s employment began on or before the date on which this Law comes into force, on the date of its coming into force; or

(b) if the employee’s employment begins after the date on which this Law comes into force, at the start of the week in which that employment begins.

(5) For the purposes of paragraphs (3) and (4), a week starts at midnight between Saturday and Sunday.

(6) The States may by Regulations amend any of the periods of time, whether expressed in hours or days, mentioned in this Article.

11 Entitlement to annual leave

(1) Subject to paragraphs (3) and (6), an employee shall be entitled in each leave year –

(a) to a period of leave of 2 weeks or to such other period as may be specified in a relevant agreement, whichever shall be the longer; and

(b) to leave –

(i) on Christmas Day, Good Friday and all public or bank holidays under the Public Holidays and Bank Holidays (Jersey) Law 1951,[3] or

(ii) in substitution for the leave to which he is entitled under clause (i) on such days as the employee may in his discretion decide or, where provided for in a relevant agreement, on such days as may be so provided, which days shall not be less in total than the total number of the days specified in clause (i) in respect of the leave year in question on which the employee has been required by his employer to work.

(2) An employee’s leave year, for the purposes of this Article, shall begin –

(a) on such date during the calendar year as may be provided for in a relevant agreement; or

(b) where there are no provisions of a relevant agreement which apply, on the date on which that employment begins and each subsequent anniversary of that date.

(3) Where the date on which an employee’s employment begins is later than the date on which (by virtue of a relevant agreement) his first leave year begins, the leave to which he is entitled in that leave year shall be a proportion of the period applicable under paragraph (1)(a) equal to the proportion of that leave year remaining on the date on which his employment begins.

(4) Subject to paragraph (5), where by virtue of paragraph (2)(b) or (3) the period of leave to which an employee is entitled is or includes a proportion of a week, the proportion shall be determined in days and any fraction of a day shall be treated as a whole day.

(5) Paragraph (4) shall apply only where the employee in question has been employed by that employer for a period of 28 days or longer.

(6) The States may by Regulations amend the period specified in paragraph (1)(a).

12 Dates on which leave is taken

(1) The Committee may by Order prescribe the period of notice to be given by and to employers in relation to the taking of annual leave by employees in the event that such matters are not included in a relevant agreement.

(2) Before the Committee may make an Order under paragraph (1) it shall consult the Employment Forum and such other organisations as appear to the Committee to be representative of employers and employees in Jersey.

13 Payment in respect of periods of leave

(1) An employee shall be entitled to be paid in respect of any period of leave to which he is entitled under Article 11, at the rate of a week’s pay in respect of each week of leave, reduced pro rata for shorter periods of leave.

(2) Schedule 1 shall apply for the purpose of determining the amount of a week’s pay for the purposes of this Article.

(3) A right to payment under paragraph (1) shall not affect a right of an employee to remuneration under his contract of employment.

(4) Remuneration paid to an employee under his contract of employment in respect of a period of leave shall go towards discharging any liability of the employer to make payments to the employee under this Article in respect of that period; and, conversely, payment of remuneration to an employee under this Article in respect of a period goes towards discharging any liability of the employer to pay remuneration to the employee under his contract of employment in respect of that period.

14 Compensation related to entitlement to leave

(1) This Article shall apply where –

(a) an employee’s employment is terminated during the course of his leave year; and

(b) on the date on which the termination takes effect (“the termination date”), the proportion he has taken of the leave to which he is entitled in the leave year under Article 11(1) differs from the proportion of the leave year which has expired.

(2) Where the proportion of leave taken by the employee is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3).

(3) The payment due under paragraph (2) shall be –

(a) where there are no provisions of a relevant agreement which apply, a sum equal to the amount that would be due to the employee under Article 13 in respect of a period of leave determined according to the formula –

(A × B) - C

where –

A is the period of leave to which the employee is entitled under Article 11(1),

B is the proportion of the employee’s leave year which expired before the termination date, and

C is the period of leave taken by the employee between the start of the leave year and the termination date; or

(b) such sum as may be specified in a relevant agreement,

whichever is the greater.

(4) Where the proportion of leave taken by the employee exceeds the proportion of the leave year which has expired, he shall compensate his employer by a payment in respect of the excess leave taken in accordance with paragraph (5).

(5) The payment due under paragraph (4) shall be –

(a) where there are no provisions of a relevant agreement which apply, a sum equal to the amount which would be due to the employee under Article 13 in respect of a period of leave determined according to the formula –

X - (Y × Z)

where –

X is the period of leave taken by the employee in the employee’s leave year in question,

Y is the period of leave to which the employee is entitled under Article 11(1), and

Z is the proportion of the employee’s leave year which expired before the termination date; or

(b) such sum as may be specified in a relevant agreement,

whichever is the less.

15 Entitlements under other provisions

Where during any period an employee is entitled to a rest period or annual leave both under a provision of this Part and under a separate provision (including a provision of a relevant agreement) or another enactment, he may not exercise the two rights separately, but may, in taking a rest period or leave during that period, take advantage of whichever right is, in any particular respect, the more favourable.

PART 4

MINIMUM WAGE

Entitlement to the minimum wage

16 Employees to be paid at least the minimum wage

(1) A person who qualifies for the minimum wage shall be remunerated by his employer in respect of his work in any pay reference period at a rate which is not less than the minimum wage.

(2) A person qualifies for the minimum wage if he is an individual who –

(a) is an employee;

(b) is working, or ordinarily works, in Jersey or, subject to paragraph (5), in the territorial waters of Jersey, under his contract; and

(3) The minimum wage shall be such hourly rate as may from time to time be prescribed.

(4) For the purposes of this Law a “pay reference period” is such period as may be prescribed for the purpose.

(5) Paragraphs (1) to (4) are subject to the foregoing and following provisions of this Law.

(6) The States may by Regulations amend the classes of person who qualify under paragraph (2) for the minimum wage.

(7) No provision shall be made under paragraph (6) which treats persons differently in relation to –

(a) different areas of Jersey;

(b) different sectors of employment;

(d) different occupations; or

(e) different racial groups or genders.

(8) In paragraph (7) “racial groups” means a group of persons defined by reference to colour, race, nationality, or ethnic or national origins.

Regulations relating to the minimum wage

17 Determination of hourly rate of remuneration

(1) The States may by Regulations make provision for determining what is the hourly rate at which a person is to be regarded for the purposes of this Law as remunerated by his employer in respect of his work in any pay reference period.

(2) The Regulations may make provision for determining the hourly rate in cases where –

(a) the remuneration, to the extent that it is at a periodic rate, is at a single rate;

(b) the remuneration is, in whole or in part, at different rates applicable at different times or in different circumstances;

(d) the remuneration consists, in whole or in part, of benefits in kind; or

(e) the employee is a trainee.

(3) The Regulations may make provision with respect to –

(a) circumstances in which, times at which, or the time for which, a person is to be treated as, or as not, working, and the extent to which a person is to be so treated;

(b) the treatment of periods of paid or unpaid absence from, or lack of, work and of remuneration in respect of such periods; and

(4) The provision that may be made by virtue of paragraph (3)(a) includes provision for or in connection with –

(a) treating a person as, or as not, working for a maximum or minimum time, or for a proportion of the time, in any period; and

(b) determining any matter to which that paragraph relates by reference to the terms of an agreement.

(5) The Regulations may make provision with respect to –

(a) what is to be treated as, or as not, forming part of a person’s remuneration, and the extent to which it is to be so treated;

(b) the valuation of benefits in kind;

(d) the treatment of any charges or expenses which a person is required to bear.

(6) The Regulations may make provision with respect to –

(a) the attribution to a period, or the apportionment between two or more periods, of the whole or any part of any remuneration or work, whether or not the remuneration is received or the work is done within the period or periods in question;

(b) the aggregation of the whole or any part of the remuneration for different periods; and

(7) Paragraphs (2) to (6) are without prejudice to the generality of paragraph (1).

(8) No provision shall be made under this Article which treats the same circumstances differently in relation to –

(a) different areas of Jersey;

(b) different sectors of employment;

(d) persons of different occupations; or

(e) persons of different racial groups or gender.

(9) In paragraph (8) “racial groups” means a group of persons defined by reference to colour, race, nationality, or ethnic or national origins.

The Employment Forum

18 The first Regulations and Orders: referral to the Employment Forum

(1) Before the Committee makes an Order under Article 16(3) or (4) or the States make Regulations under Article 16(6), or Article 17, the Committee shall refer the matters specified in paragraph (2) to the Employment Forum for their consideration.

(2) The matters referred to in paragraph (1) are –

(a) what single hourly rate should be prescribed under Article 16(3) as the minimum wage;

(b) what period or periods should be prescribed under Article 16(4);

(c) what method or methods should be used for determining under Article 17 the hourly rate at which a person is to be regarded as remunerated for the purposes of this Law; and

(d) whether any, and if so what, amendments should be made to the classes of person who qualify under Article 16(2) for the minimum wage.

(3) Where matters are referred to the Employment Forum under paragraph (1), the Forum shall, after considering those matters, make a report to the Committee which shall contain the Forum’s recommendations about each of those matters.

(4) If, following the report of the Employment Forum under paragraph (3), the Committee decides –

(a) not to make an Order, or not to recommend the States to make any Regulations, implementing the Forum’s recommendations;

(b) to make an Order, or to recommend the States to make Regulations, implementing only some of the Forum’s recommendations;

(c) to make an Order under Article 16(3) prescribing a single hourly rate which is different from the rate recommended by the Forum;

(d) to make an Order, or to recommend the States to make Regulations, which in some other respect differ from the recommendations of the Forum; or

(e) to make an Order, or to recommend the States to make Regulations, which do not relate to a recommendation of the Forum,

the Committee shall lay a report before the States containing a statement of the reasons for the decision.

(5) If the Employment Forum fail to make their report under paragraph (3) within the time allowed for doing so under Article 20, any power of the Committee to make an Order or of the States to make Regulations under this Law shall be exercisable as if paragraph (1) had not been enacted.

19 Referral of matters to the Employment Forum at any time

(1) The Committee may at any time refer to the Employment Forum such matters relating to this Law as the Committee thinks fit.

(2) Where matters are referred to the Employment Forum under paragraph (1), the Forum shall, after considering those matters, make a report to the Committee which shall contain the Forum’s recommendations about each of those matters.

(3) If on a referral under this Article –

(a) the Committee seeks the opinion of the Employment Forum on a matter falling within Article 18(2);

(b) the Forum’s report under paragraph (2) contains recommendations in relation to that matter; and

(c) implementation of any of those recommendations involves the exercise of any power to make Regulations under Articles 16 to 19,

Article 18(4) shall apply in relation to the report, so far as relating to the recommendations falling within sub-paragraph (c), as it applies in relation to a report under Article 18(3).

(4) If on a referral under this Article –

(a) the Committee seeks the opinion of the Employment Forum on any matter falling within Article 18(2); but

(b) the Forum fail to make their report under paragraph (2) within the time allowed under Article 20,

the States may make Regulations and the Committee may make Orders under Articles 16 to 19 as if the opinion of the Forum had not been sought in relation to that matter.

20 Referrals to, and reports of, the Employment Forum: supplementary

(1) This Article applies where matters are referred to the Employment Forum under Article 18 or 19.

(2) The Committee may by notice require the Employment Forum to make their report within such time as may be specified in the notice.

(3) The time allowed to the Employment Forum for making their report may be extended by further notice given to them by the Committee.

(4) Before arriving at the recommendations to be included in their report, the Employment Forum shall consult –

(a) such organisations representative of employers as they think fit;

(b) such organisations representative of employees as they think fit; and

(5) In considering what recommendations to include in their report, the Employment Forum –

(a) shall have regard to the effect of this Law on the economy of Jersey as a whole and on competitiveness; and

(b) shall take into account any additional factors which the Committee specifies in referring the matters to them.

(6) The report of the Employment Forum shall –

(a) identify the members of the Forum making the report;

(b) explain the procedures adopted in respect of consultation, the taking of evidence and the receiving of representations;

(d) if the Committee has specified any additional factor to be taken into account under paragraph (5)(b), state that they have taken that factor into account in making their recommendations.

(7) The Committee shall –

(a) lay a copy of any report of the Employment Forum before the States; and

(b) arrange for the report to be published.

(8) In this Article –

“recommendations” means the recommendations required to be contained in a report under Article 18(3) or 19(2); and

“report” means the report which the Employment Forum are required to make under Article 18(3) or 19(2) on the matters referred to them as mentioned in paragraph (1).

21 The Employment Forum

(1) Subject to the following provisions of this Article, the body which is to be regarded for the purposes of this Law as being the Employment Forum is the non-statutory Employment Forum.

(2) In this Law “the non-statutory Employment Forum” means the unincorporated body of persons known as “the Employment Forum” which was established by the Committee before the passing of this Law for the purpose of making recommendations relating to the establishment, application and operation of a minimum wage.

(3) The referral by the Committee to the non-statutory Employment Forum at any time before the coming into force of this Law of matters (however described) corresponding to those specified in Article 18(2) shall be treated as the referral required by Article 18(1) unless the Committee otherwise determines.

(4) The referral by the Committee to the non-statutory Employment Forum at any time before or after the coming into force of this Law, but before the appointment of the body mentioned in paragraph (9), of matters other than those mentioned in paragraph (3) shall be treated as a referral under Article 19(1) unless the Committee otherwise determines.

(5) The report of the non-statutory Employment Forum (whether made before or after the coming into force of this Law) to the Committee containing the Forum’s recommendations about –

(a) the matters which are to be treated by virtue of paragraph (3) as referred under Article 18(1); or

(b) the matters which are to be treated by virtue of paragraph (4) as referred under Article 19(1),

shall be treated as the report of the Employment Forum under Article 18(3) or 19(2) on the referral in question unless the Committee, whether before or after the making of the report, makes a determination under paragraph (3) or (4) in relation to the referral.

(6) If, in the case of the matters described in paragraph (5)(a) or any particular matters such as are described in paragraph (5)(b), the Committee has, before the coming into force of this Law –

(a) requested the non-statutory Employment Forum to make their report within a specified time; or

(b) having made such a request, extended the time for making the report,

the request shall be treated as a requirement imposed under Article 20(2) and any such extension shall be treated as an extension under Article 20(3).

(7) Accordingly, if –

(a) the Committee has not made a determination under paragraph (3); and

(b) the non-statutory Employment Forum fail to make the report required by Article 18(3) within the time allowed under this Law,

Article 18(5) shall apply.

(8) The non-statutory Employment Forum shall not be regarded as the body which is the Employment Forum for the purposes of this Law in the case of any referral under Article 18(1) or 19(1) which is made after –

(a) the non-statutory Employment Forum have made their report under Article 18(3);

(b) the time allowed under this Law to the non-statutory Employment Forum for making that report has expired without the report having been made; or

(9) The Committee may at any time appoint a body, to be known as “the Employment Forum”, to discharge the functions conferred or imposed on the Employment Forum under this Law.

(10) Schedule 2 shall have effect with respect to the constitution and proceedings of the body appointed under paragraph (9).

(11) Where the Committee exercises the power conferred by paragraph (9), the body which is to be regarded for the purposes of this Law as being the Employment Forum as respects the referral of any matter to the Employment Forum by the Committee after the exercise of the power is the body appointed under that paragraph.

(12) If the Committee makes the determination under paragraph (3), the power conferred by paragraph (9) shall be exercised and the referral required by Article 18(1) shall be made to the body appointed under paragraph (9).

(13) If the Committee makes a determination under paragraph (3) or (4) –

(a) notice of the determination shall be given to the non-statutory Employment Forum; and

(b) a copy of the notice shall be laid before the States.

(14) No determination shall be made under paragraph (3) or (4) more than 12 months after the passing of this Law.

(15) A member of the body appointed under paragraph (9) shall not be liable in damages for anything done or omitted in the discharge or purported discharge of any functions under this Law unless it is shown that the act or omission was in bad faith.

Records

22 Duty of employers to keep records

For the purposes of this Law, the Committee may by Order prescribe –

(a) the records which shall be kept by employers;

(b) the form and manner in which records prescribed under sub-paragraph (a) shall be kept; and

23 Employee’s right of access to records

(1) An employee may, in accordance with the following provisions of this Article –

(a) require his employer to produce any relevant records; and

(b) inspect and examine those records and copy any part of them.

(2) The rights conferred by paragraph (1) shall be exercisable only if the employee believes on reasonable grounds that he is or may be being, or has or may have been, remunerated for any pay reference period by his employer at a rate which is less than the minimum wage.

(3) The rights conferred by paragraph (1) shall be exercisable only for the purpose of establishing whether or not the employee is being, or has been, remunerated for any pay reference period by his employer at a rate which is less than the minimum wage.

(4) The rights conferred by paragraph (1) shall be exercisable –

(a) by the employee alone; or

(b) by the employee accompanied by such other person as the employee may think fit.

(5) The rights conferred by paragraph (1) shall be exercisable only if the employee gives notice (a “production notice”) to his employer requesting the production of any relevant records relating to such period as may be described in the notice.

(6) If the employee intends to exercise the right conferred by paragraph (4)(b), the production notice shall contain a statement of that intention.

(7) Where a production notice is given, the employer shall give the employee reasonable notice of the place and time at which the relevant records will be produced.

(8) The place at which the relevant records are produced shall be –

(a) the employee’s place of work;

(b) any other place at which it is reasonable, in all the circumstances, for the employee to attend to inspect the relevant records; or

(9) The relevant records shall be produced –

(a) before the end of the period of 14 days following the date of receipt of the production notice; or

(b) at such later time as may be agreed during that period between the employee and the employer.

(10) In this Article –

“records” means records which the employee’s employer is required to keep and, at the time of receipt of the production notice, preserve in accordance with Article 22; and

“relevant records” means such parts of, or such extracts from, any records as are relevant to establishing whether or not the employee has, for any pay reference period to which the records relate, been remunerated by the employer at a rate which is at least equal to the minimum wage.

24 Failure of employer to allow access to records

(1) A complaint may be lodged with the Tribunal by a employee on the ground that the employer –

(a) failed to produce some or all of the relevant records in accordance with Article 23(8) and (9); or

(b) failed to allow the employee to exercise some or all of the rights conferred by Article 23(1)(b) or (4)(b).

(2) Where the Tribunal finds a complaint under this Article well-founded, the Tribunal –

(a) shall make a declaration to that effect; and

(b) may make an award that the employer pay to the employee a sum not exceeding 80 times the hourly amount of the minimum wage (as in force when the award is made).

(3) The Tribunal shall not consider a complaint under this Article unless it is lodged with the Tribunal before the expiry of the period of 13 weeks following –

(a) the end of the period of 14 days mentioned in Article 23(9)(a); or

(b) in a case where a later day was agreed under Article 23(9)(b), that later day.

(4) Where the Tribunal is satisfied that it was not reasonably practicable for a complaint under this Article to be lodged before the expiry of the period of 13 weeks mentioned in paragraph (3), the Tribunal may consider the complaint if it is lodged within such further period as the Tribunal considers reasonable.

(5) Expressions used in this Article and in Article 23 have the same meaning in this Article as they have in that Article.

25 Employer to provide employee with minimum wage statement

(1) The States may by Regulations make provision for the purpose of conferring on an employee the right to be given by his employer, at or before the time at which any payment of remuneration is made to the employee, a written statement.

(2) Regulations made under paragraph (1) may make provision with respect to the contents of any such statement and may, in particular, require it to contain –

(a) specified information relating to this Part or any Regulations made under it; or

(b) specified information for the purpose of assisting the employee to determine whether he has been remunerated at a rate at least equal to the minimum wage during the period to which the payment of remuneration relates.

(3) Any statement required to be given under this Article to an employee by his employer may be included in the written itemised pay statement required to be given to him by his employer under Article 51.

Enforcement

26 Non-compliance: employee entitled to additional remuneration

(1) If an employee who qualifies for the minimum wage is remunerated for any pay reference period by his employer at a rate which is less than the minimum wage, the employee shall be taken to be entitled under his contract to be paid, as additional remuneration in respect of that period, the amount described in paragraph (2).

(2) The amount referred to in paragraph (1) is the difference between –

(a) the relevant remuneration received by the employee for the pay reference period; and

(b) the relevant remuneration which the employee would have received for that period had he been remunerated by the employer at a rate equal to the minimum wage.

(3) In paragraph (2) “relevant remuneration” means remuneration which falls to be brought into account for the purposes of Regulations under Article 17.

27 Power of officer to issue enforcement notice

(1) If an officer acting for the purposes of this Law is of the opinion that an employee who qualifies for the minimum wage has not been remunerated for any pay reference period by his employer at a rate at least equal to the minimum wage, the officer may serve a notice (an “enforcement notice”) on the employer requiring the employer to remunerate the employee for any such pay reference periods ending on or after the date of the notice at a rate equal to the minimum wage.

(2) An enforcement notice may also require the employer to pay to the employee within such time as may be specified in the notice the sum due to the employee under Article 26 in respect of the employer’s previous failure to remunerate the employee at a rate at least equal to the minimum wage.

(3) The same enforcement notice may relate to more than one employee (and, where it does so, may be so framed as to relate to employees specified in the notice or to employees of a description so specified).

(4) A person on whom an enforcement notice is served may appeal against the notice before the end of the period of 4 weeks following the date of service of the notice.

(5) An appeal under paragraph (4) shall lie to the Tribunal.

(6) On an appeal under paragraph (4), the Tribunal shall dismiss the appeal unless it is established –

(a) that, in the case of the employee or employees to whom the enforcement notice relates, the facts are such that an officer who was aware of them would have had no reason to serve any enforcement notice on the appellant;

(b) where the enforcement notice relates to 2 or more employees, that the facts are such that an officer who was aware of them would have had no reason to include some of the employees in any enforcement notice served on the appellant; or

(i) that no sum was due to the employee under Article 26, or

(ii) that the amount specified in the notice as the sum due to the employee under Article 26 is incorrect,

and in this paragraph any reference to an employee includes a reference to a person whom the enforcement notice purports to treat as an employee.

(7) Where an appeal is allowed by virtue of paragraph (6)(a), the Tribunal shall rescind the enforcement notice.

(8) If, in a case where paragraph (7) does not apply, an appeal is allowed by virtue of paragraph (6)(b) or (c) –

(a) the Tribunal shall rectify the enforcement notice; and

(b) the enforcement notice shall have effect as if it had originally been served as so rectified.

(9) The powers of the Tribunal in allowing an appeal in a case where paragraph (8) applies shall include power to rectify, as the Tribunal may consider appropriate in consequence of its decision on the appeal, any penalty notice which has been served under Article 29 in respect of the enforcement notice.

(10) Where a penalty notice is rectified under paragraph (9), it shall have effect as if it had originally been served as so rectified.

28 Non-compliance: power of officer to sue on behalf of employee

(1) If an enforcement notice is not complied with in whole or in part, an officer acting for the purposes of this Law may, on behalf of any employee to whom the notice relates, and on receipt of a written request to do so, commence other civil proceedings for the recovery, on a claim in contract, of any sums due to the employee by virtue of Article 26.

(2) The powers conferred by paragraph (1) for the recovery of sums due from an employer to a employee shall not be in derogation of any right which the employee may have to recover such sums by civil proceedings, but in the event of the employee taking such proceedings the officer shall immediately discontinue any proceedings taken by him on behalf of the employee under paragraph (1).

29 Financial penalty for non-compliance

(1) If an officer acting for the purposes of this Law is satisfied that a person on whom an enforcement notice has been served has failed, in whole or in part, to comply with the notice, the officer may serve on that person a notice (a “penalty notice”) requiring the person to pay a financial penalty to the Committee.

(2) A penalty notice shall state –

(a) the amount of the financial penalty;

(b) the time within which the financial penalty is to be paid (which shall not be less than 4 weeks from the date of service of the notice);

(d) the matters which appear to the officer to constitute the non-compliance with the enforcement notice; and

(e) the calculation of the amount of the financial penalty.

(3) The amount of the financial penalty shall be calculated at a rate equal to twice the minimum wage in force at the date of the penalty notice, in respect of each employee to whom the failure to comply relates, for each day during which the failure to comply has continued in respect of the employee.

(4) The States may by Regulations from time to time amend the multiplier for the time being specified in paragraph (3) in relation to the minimum wage.

(5) A financial penalty under this Article shall be recoverable by action before the court by an officer acting for the purposes of this Law.

(6) Where a person has appealed under Article 27(4) against an enforcement notice and the appeal has not been withdrawn or finally determined, then, notwithstanding the appeal –

(a) the enforcement notice shall have effect; and

(b) an officer may serve a penalty notice in respect of the enforcement notice.

(7) If, in a case falling within paragraph (6), an officer serves a penalty notice in respect of the enforcement notice, the penalty notice –

(a) shall not be enforceable until the appeal has been withdrawn or finally determined; and

(b) shall be of no effect if the enforcement notice is rescinded as a result of the appeal; but

(c) subject to sub-paragraph (b) and Article 30(4) and (6)(a), as from the withdrawal or final determination of the appeal shall be enforceable as if sub-paragraph (a) had not had effect.

(8) Any sums received by the Committee by virtue of this Article shall be paid into the annual income of the States.

(9) In this Article “court” means either the Royal Court or the Petty Debts Court.

30 Appeals against penalty notices

(1) A person on whom a penalty notice is served may appeal against the notice before the end of the period of 4 weeks following the date of service of the notice.

(2) An appeal under paragraph (1) shall lie to the Tribunal.

(3) On an appeal under paragraph (1), the Tribunal shall dismiss the appeal unless it is shown –

(a) that, in the case of each of the allegations of failure to comply with the enforcement notice, the facts are such that an officer who was aware of them would have had no reason to serve any penalty notice on the appellant;

(b) that the penalty notice is incorrect in some of the particulars which affect the amount of the financial penalty; or

and for the purposes of any appeal relating to a penalty notice, the enforcement notice in question shall (subject to rescission or rectification on any appeal brought under Article 27) be taken to be correct.

(4) Where an appeal is allowed by virtue of paragraph (3)(a), the Tribunal shall rescind the penalty notice.

(5) If, in a case where paragraph (4) does not apply, an appeal is allowed by virtue of paragraph (3)(b) or (c) –

(a) the Tribunal shall rectify the penalty notice; and

(b) the penalty notice shall have effect as if it had originally been served as so rectified.

(6) Where a person has appealed under paragraph (1) against a penalty notice and the appeal has not been withdrawn or finally determined, the penalty notice –

(a) shall not be enforceable until the appeal has been withdrawn or finally determined; but

(b) subject to paragraph (4) and Article 29(7)(a) and (b), as from the withdrawal or final determination of the appeal shall be enforceable as if sub-paragraph (a) had not had effect.

Rights not to suffer detriment

31 The right not to suffer detriment

(1) An employee shall have the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer, done on the ground that –

(a) any action was taken, or was proposed to be taken, by or on behalf of the employee with a view to enforcing, or otherwise securing the benefit of, a right of the employee’s to which this Article applies;

(b) the employer was prosecuted for an offence under Article 35 as a result of action taken by or on behalf of the employee for the purpose of enforcing, or otherwise securing the benefit of, a right of the employee’s to which this Article applies; or

(2) It shall be immaterial for the purposes of paragraph (1)(a) or (b) –

(a) whether or not the employee has the right; or

(b) whether or not the right has been infringed,

but, for that paragraph to apply, the claim to the right and, if applicable, the claim that it has been infringed shall be made in good faith.

(3) This Article shall apply to –

(a) any right conferred by, or by virtue of, any provision of this Law for which the remedy for its infringement is by way of a complaint to the Tribunal; and

(b) any right conferred by Article 26.

32 Enforcement of the right

(1) An employee may lodge a complaint to the Tribunal that he has been subjected to a detriment in contravention of Article 31.

(2) On such a complaint it is for the employer to show the ground on which any act, or deliberate failure to act, was done.

(3) The Tribunal shall not consider a complaint under this Article unless it is lodged –

(a) before the end of the period of 8 weeks beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them; or

(b) within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be lodged before the end of that period of 8 weeks.

(4) For the purposes of paragraph (3) –

(a) where an act extends over a period, the “date of the act” means the last day of that period; and

(b) a deliberate failure to act shall be treated as done when it was decided on,

and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done.

33 Remedies

(1) Where the Tribunal finds well-founded a complaint under Article 32 of a detriment, the Tribunal –

(a) shall make a declaration to that effect; and

(b) may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates.

(2) The amount of the compensation awarded shall, subject to paragraph (6), be such as the Tribunal considers just and equitable in all the circumstances having regard to –

(a) the infringement to which the complaint relates; and

(b) any loss which is attributable to the act, or failure to act, which infringed the complainant’s right.

(3) The loss referred to in paragraph (2)(b) shall be taken to include –

(a) any expenses reasonably incurred by the complainant in consequence of the act, or failure to act, to which the complaint relates; and

(b) loss of any benefit which the complainant might reasonably be expected to have had but for that act or failure to act.

(4) In ascertaining the loss referred to in paragraph (2)(b) the Tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the customary law.

(5) Where the Tribunal finds that the act, or failure to act, to which the complaint relates was to any extent caused or contributed to by action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding.

(6) An award of compensation under this Article shall not exceed such figure as may be prescribed.

34 Burden of proof

(1) Where, in civil proceedings, any question arises as to whether an individual qualifies or qualified at any time for the minimum wage, it shall be presumed that the individual qualifies or, as the case may be, qualified at that time for the minimum wage unless the contrary is established.

(2) Where, in civil proceedings, a person seeks to recover on a claim in contract the amount described as additional remuneration in Article 26(1), it shall be presumed for the purposes of the proceedings, so far as relating to that amount, that the employee in question was remunerated at a rate less than the minimum wage unless the contrary is established.

Offences

35 Offences

(1) If the employer of an employee who qualifies for the minimum wage refuses or wilfully neglects to remunerate the employee for any pay reference period at a rate which is at least equal to the minimum wage, that employer shall be guilty of an offence.

(2) If a person who is required to keep or preserve any record in accordance with Orders under Article 22 fails to do so, that person shall be guilty of an offence.

(3) If a person makes, or knowingly causes or allows to be made, in a record required to be kept in accordance with Orders under Article 22 any entry which he knows to be false in a material particular, that person shall be guilty of an offence.

(4) If a person, for purposes connected with the provisions of this Part, produces or furnishes, or knowingly causes or allows to be produced or furnished, any record or information which he knows to be false in a material particular, that person shall be guilty of an offence.

(5) Where the commission by any person of an offence under paragraph (1) or (2) is due to the act or default of some other person, that other person shall also be guilty of the offence.

(6) A person who aids, abets, counsels or procures the commission of an offence under this Part shall also be guilty of the offence and liable in the same manner as a principal offender to the penalty provided for that offence.

(7) A person may be charged with and convicted of an offence by virtue of paragraph (5) whether or not proceedings are taken against any other person.

(8) In any proceedings for an offence under paragraph (2) it shall be a defence for the person charged to prove that he exercised all due diligence and took all reasonable precautions to secure that the provisions of this Part, and of any relevant Regulations and Orders made under it, were complied with by himself and by any person under his control.

(9) A person guilty of an offence under paragraph (1) or (2) shall be liable to a fine not exceeding level 4 on the standard scale.[4]

(10) A person guilty of an offence under paragraph (3) or (4) shall be liable to imprisonment for a term not exceeding 12 months, or to a fine, or both.

Special classes of person

36 Home workers who are not otherwise “employees”

(1) In determining for the purposes of this Part whether a home worker is or is not an employee, sub-paragraph (b) in the definition of “employ” in Article 1 shall have effect as if for the word “personally” there were substituted “(whether personally or otherwise)”.

(2) In this Article “home worker” means an individual who contracts with a person, for the purposes of that person’s business, for the execution of work to be done in a place not under the control or management of that person.

37 Mariners

For the purposes of this Part, an individual employed to work on board a merchant ship registered in Jersey shall be treated as an individual who under his contract ordinarily works in Jersey unless –

(a) the employment is wholly outside Jersey; or

(b) the person is not ordinarily resident in Jersey,

and related expressions shall be construed accordingly.

Extensions

38 Power to apply Part 4 to individuals who are not otherwise “employees”

The States may by Regulations make provision for this Part to apply, with or without modifications, as if –

(a) any individual of a specified description who would not otherwise be an employee for the purposes of this Part were an employee for those purposes;

(b) there were in the case of any such individual a contract of employment of a specified description under which the individual works; and

Exclusions

39 Share fishermen

A person –

(a) employed as master, or as a member of the crew, of a fishing vessel; and

(b) remunerated, in respect of that employment, only by a share in the profits or gross earnings of the vessel,

shall not qualify for the minimum wage in respect of that employment.

40 Employees of charities, etc.

(1) An employee employed by a charity, a voluntary organisation, an associated fund-raising body or a statutory body shall only qualify for the minimum wage in respect of that employment if he receives, or under the terms of his employment (apart from this Part) is entitled to –

(a) any monetary payments other than amounts payable in respect of expenses –

(i) actually incurred in the performance of his duties, or

(ii) reasonably estimated as likely to be or to have been so incurred; or

(b) any benefits in kind other than the provision of some or all of his subsistence or of such accommodation as is reasonable in the circumstances of the employment.

(2) A person who would satisfy the conditions in paragraph (1) but for receiving monetary payments made solely for the purpose of providing him with means of subsistence shall be taken to satisfy those conditions if –

(a) he is employed to do the work in question as a result of arrangements made between a charity acting in pursuance of its charitable purposes and the body for which the work is done; and

(b) the work is done for a charity, a voluntary organisation, an associated fund-raising body or a statutory body.

(3) For the purposes of paragraph (1)(b) –

(a) any training (other than that which a person necessarily acquires in the course of doing his work) shall be taken to be a benefit in kind; but

(b) there shall be left out of account any training provided for the sole or main purpose of improving the employee’s ability to perform the work which he has agreed to do.

(4) In this Article –

“associated fund-raising body” means a body of persons the profits of which are applied wholly for the purposes of a charity or voluntary organisation;

“charity” means a body of persons, or the trustees of a trust, established for charitable purposes only;

“receive”, in relation to a monetary payment or a benefit in kind, means receive in respect of, or otherwise in connection with, the employment in question (whether or not under the terms of the employment);

“statutory body” means a body established by or under an enactment;

“subsistence” means such subsistence as is reasonable in the circumstances of the employment in question, and does not include accommodation; and

“voluntary organisation” means a body of persons, or the trustees of a trust, which is established only for charitable purposes (whether or not those purposes are charitable within the meaning of any rule of law), benevolent purposes or philanthropic purposes, but which is not a charity.

41 Prisoners

(1) A prisoner shall not qualify for the minimum wage in respect of any work which he does in pursuance of prison rules except work which is undertaken outside the prison as part of a programme of rehabilitation.

(2) In this Article –

“prisoner” means a person detained in, or on temporary release from, a prison;

“prison” includes any other institution to which prison rules apply; and

“prison rules” means rules made under Article 26 of the Prison (Jersey) Law 1957.[5]

42 Religious and other communities: resident employees

(1) A residential member of a community to which this Article applies shall not qualify for the minimum wage in respect of employment by the community.

(2) Subject to paragraph (3), this Article shall apply to a community if –

(a) it is a charity or is established by a charity;

(b) a purpose of the community is to practise or advance a belief of a religious or similar nature; and

(3) This Article shall not apply to a community which –

(a) is a non-provided school; or

(b) provides a course of higher or vocational education.

(4) In this Article –

(a) “charity” has the same meaning as in Article 40; and

(b) “non-provided school”, “higher education” and “vocational education” have the same meaning as in Article 1 of the Education (Jersey) Law 1999.[6]

Miscellaneous

43 Application of Part 4 to superior employers

Where –

(a) the immediate employer of an employee is himself in the employment of some other person; and

(b) the employee is employed on the premises of that other person,

that other person shall be deemed for the purposes of this Part to be the employer of the employee jointly with the immediate employer.

PART 5

PAYMENT OF WAGES

44 Wages to be paid in legal tender

Subject to Article 45 wages shall be paid to an employee –

(a) in legal tender;

(b) by payment into an account at a bank, being –

(i) an account standing in the name of the person to whom the wages are due, or

(ii) an account standing in the name of that person jointly with one or more other persons, or

(iii) at the express and unsolicited request of the employee, and with written authority, signed by the employee, an account in the name of a third party who shall not be directly or indirectly associated or connected with the employer;

(d) by payment by money order; or

(e) by payment by cheque,

and, subject to the preceding provisions of this Article, shall not be paid in the form of promissory notes, vouchers or coupons or in any other form alleged to represent legal tender.

45 Partial payment of wages in kind

(1) Subject to the provisions of this Article, nothing in this Part shall prohibit the authorization under a relevant agreement or under any enactment, of the partial payment of wages in the form of allowances in kind in any industry or occupation in which payment in the form of such allowances is customary or desirable because of the nature of the industry or occupation concerned.

(2) The partial payment of wages in the form of allowances in kind shall not be lawful unless –

(a) such allowances are appropriate for the personal use and benefit of the employee and his family; and

(b) the value attributed to such allowances is fair and reasonable.

46 Wages to be paid directly to employees

Except under a relevant agreement, or another enactment, an employer shall pay the wages of an employee in his employment directly to the employee.

47 Freedom to dispose of wages

An employer shall not limit in any manner the freedom of an employee in his employment to dispose of his wages.

48 Deductions from wages

Nothing in this Law shall prohibit the deduction from an employee’s wages of amounts authorized by or under another enactment or a relevant agreement.

49 Distraint on wages

Except as may be authorized by or under another enactment, no distraint may be made on wages by virtue of a provisional order issued by the Bailiff or the Judge of the Petty Debts Court, and a distraint on wages may only be made by virtue of a judgment or order of the Royal Court or the Petty Debts Court to the extent to which authority so to do is given by the judgement or order.

50 Wages to be paid at regular intervals

Except where another enactment or a relevant agreement provides otherwise, an employer shall pay the wages of an employee in his employment on normal working days and at regular intervals of not more than one month.

Pay statements

51 Itemised pay statement

(1) An employee shall have the right to be given by his employer, at or before the time at which any payment of wages is made to him, a written itemised pay statement.

(2) The statement shall contain particulars of –

(a) the gross amount of the wages;

(b) the amounts of any variable deductions from that gross amount and the purposes for which they are made;

(d) where different parts of the net amount are paid in different ways, the amount and method of payment of each part-payment.

52 Power to amend provisions about pay statements

The States may by Regulations vary the provisions of Article 51 as to the particulars which are to be included in a pay statement by adding items to, or removing items from, the particulars listed in that Article or by amending any such particulars.

53 References to the Tribunal

(1) Where an employer does not give an employee a statement as required by Article 51 or where the statement the employer gives does not comply with what is required, the employee may refer the matter to the Tribunal to determine what particulars ought to have been included or referred to in a statement so as to comply with the requirements of the Article concerned.

(2) Where –

(a) a statement purporting to be a pay statement purporting to comply with Article 51, has been given to an employee; and

(b) a question arises as to the particulars which ought to have been included or referred to in the statement so as to comply with the requirements of this Law,

either the employer or the employee may require the question to be referred to and determined by the Tribunal.

(3) For the purposes of this Article a question as to the particulars which ought to have been included in a pay statement shall not include a question solely as to the accuracy of an amount stated in any such particulars.

(4) The Tribunal shall not consider a reference under this Article in a case where the employment to which the reference relates has ceased unless the reference was made –

(a) before the end of the period of 8 weeks beginning with the date on which the employment ceased; or

54 Determination of references

(1) Where on a reference under Article 53 the Tribunal finds –

(a) that an employer has failed to give an employee a pay statement in accordance with Article 51; or

(b) that a pay statement does not, in relation to a deduction, contain the particulars required to be included in that statement by Article 51,

the Tribunal shall make a declaration to that effect, and may order that a pay statement shall be issued in a particular form, or may confirm the particulars as included or referred to in the statement given by the employer, amend those particulars, or substitute other particulars for them.

(2) Where on a reference in the case of which paragraph (1) applies the Tribunal further finds that any unnotified deductions have been made from the pay of the employee during the period of 13 weeks immediately preceding the date of the application for the reference (whether or not the deductions were made in breach of the contract of employment), the Tribunal may order the employer to pay to the employee a sum not exceeding the aggregate of the unnotified deductions so made.

(3) For the purposes of paragraph (2) a deduction is an unnotified deduction if it is made without the employer giving the employee, in any pay statement, the particulars of the deduction required by Article 51.

55 Offences

If an employer contravenes any of the provisions of this Part he shall be guilty of an offence and shall be liable, in respect of each offence, to a fine not exceeding level 4 on the standard scale.[7]

PART 6

TERMINATION OF EMPLOYMENT

56 Minimum period of notice

(1) Subject to paragraph (9), the notice required to be given by an employer to terminate the employment of an employee shall be not less than –

(a) one week’s notice if the employee has worked for the employer for 8 or more hours a week in any week of his employment and his period of continuous employment is less than 26 weeks;

(b) 2 weeks’ notice if his period of continuous employment is 26 weeks or more but less than 2 years;

(d) 8 weeks’ notice if his period of continuous employment is 5 years or more but less than 10 years;

(e) 12 weeks’ notice if his period of continuous employment is 10 years or more but less than 15 years; or

(f) 16 weeks’ notice if his period of continuous employment is 15 years or more.

(2) The notice required to be given by an employee who has been continuously employed for 26 weeks or more to terminate his employment shall be not less than –

(a) 2 weeks’ notice if his period of continuous employment is less than 5 years; or

(b) 4 weeks’ notice if his period of continuous employment is 5 years or more.

(3) Any provision for shorter notice in a relevant agreement with a person who has been continuously employed for four weeks or more shall have effect subject to paragraphs (1) and (2), but this Article shall not prevent either party from waiving his right to notice on any occasion or from accepting a payment in lieu of notice.

(4) A contract of employment of a person who has been continuously employed for 13 weeks or more which is a contract for a term certain of 4 weeks or less shall have effect as if it were for an indefinite period; and, accordingly, paragraphs (1), (2) and (3) shall apply to the contract.

(5) Paragraphs (1), (2) and (3) shall not apply to a contract of employment made in contemplation of the performance of a specific task which is not expected to last for more than 13 weeks unless the employee has been continuously employed for a period of more than 13 weeks.

(6) This Article shall not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party.

(7) A relevant agreement may specify periods of notice longer than those specified in paragraphs (1) and (2).

(8) The period of continuous employment for the purposes of this Article shall be computed in accordance with Article 57.

(9) Subject to paragraphs (4) and (5), an employer shall be under no obligation to give notice under paragraph (1) to an employee who is employed under a fixed term contract of employment.

57 Computation of period of employment

(1) Except so far as otherwise provided by the following provisions of this Article 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.

(2) Any week during the whole or part of which the employee’s relations with the employer are governed by a contract of employment for 8 hours or more weekly shall count in computing a period of employment.

(3) Any week in which the employee is, for the whole or part of the week –

(a) incapable of work because of sickness or injury;

(b) absent from work because of a temporary cessation of work; or

(c) absent from work in circumstances such that, by arrangement or custom, he is regarded as continuing in the employment of his employer for all or any purposes,

shall count as a period of employment despite its not falling within paragraph (2).

(4) If –

(a) a fixed term contract of employment has expired in accordance with its terms; and

(b) another fixed term contract of employment is entered into by the same parties which takes effect not more than 26 weeks after the expiry of the previous fixed term contract of employment,

the interval between the two periods of employment shall not be taken to break the period of employment when computing its length, but the length of the interval shall not be counted in the computation.

(5) A week shall not count under paragraphs (2) to (4) if in that week, or any part of that week, the employee takes part in a strike.

(6) The continuity of an employee’s period of employment shall not be broken by a week which does not count under this Article if in that week, or in a part of that week, the employee takes part in a strike.

(7) The continuity of the period of employment shall not be broken by a week which does not count under this Article if, in that week, or in a part of that week, the employee is absent from work because of a lock-out by his employer.

58 Change of employer

(1) Subject to the provisions of this Article and of Article 59, the provisions of this Part shall relate only to employment by a single employer.

(2) If a trade or business or an undertaking is transferred from one person to another, the period of continuous employment of an employee in the trade or business or undertaking at the time of the transfer shall count as a period of employment with the transferee, and the transfer shall not break the continuity of the period of employment.

(3) If, on the death of an employer, the employee is taken into the employment of the personal representatives of the deceased, the employee’s period of employment at the time of the death shall count as a period of employment with the employer’s personal representatives and the death shall not break the continuity of the period of employment.

(4) If there is a change in the partners or personal representatives who employ any person, the employee’s period of employment at the time of the change shall count as a period of employment with the partners or personal representatives after the change, and the change shall not break the continuity of the period of employment.

(5) If an employee of a company is taken into the employment of another company which, at the time when he is taken into its employment is an associated company of the first-mentioned company, his period of employment at that time shall count as a period of employment with the associated company and the change of employer shall not break the continuity of the period of employment.

(6) For the purposes of paragraph (5), a company is associated with another company if it is a subsidiary or a holding company of that other company, or if both companies are subsidiaries of the same holding company.

59 Rights of employee

(1) The rate of remuneration payable during the period of notice by an employer or recoverable by him where an employee terminates the employment without the requisite notice provided for by this Law shall be that which applied immediately before the notice to terminate the employment was given by the employer or the employee left without giving the requisite notice.

(2) Where bonus payments or gratuities of any kind have been agreed at the time of commencement of an employment as forming part of an employee’s remuneration, to be paid at intervals or periods of time, the employee shall be entitled to receive a pro rata payment of such bonus payments and gratuities at the termination of his employment unless –

(a) such employment has been legitimately terminated by the employer by reason of the conduct of the employee;

(b) or –

(i) the employee agreed at the time of commencing the employment that no bonus or gratuity nor any part of such bonus or gratuity would become payable to him until after a specified period of employment had been completed, and

(ii) the employee terminates the employment before completing the specified period.

60 Power to amend this Part

The States may by Regulations amend any of the periods of time, whether expressed in hours, weeks or years, mentioned in this Part.

PART 7

UNFAIR DISMISSAL

CHAPTER 1

RIGHT NOT TO BE UNFAIRLY DISMISSED

61 The right

(1) An employee shall have the right not to be unfairly dismissed by his employer.

(2) Paragraph (1) shall have effect subject to the following provisions of this Part.

Dismissal - Loss of unfair dismissal protection

62 Circumstances in which an employee is dismissed

(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2), only if) –

(a) the contract under which he is employed is terminated by the employer (whether with or without notice);

(b) he has been employed under a fixed term contract of employment, or a series of fixed term contracts, for less than such continuous period of time as may be prescribed, and the term of the subsisting fixed term contract expires without being renewed under the same contract; or

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

(2) An employee shall be taken to be dismissed by his employer for the purposes of this Part if –

(a) the employer gives notice to the employee to terminate his contract of employment; and

(b) at a time within the period of that notice the employee gives notice to the employer to terminate the contract of employment on a date earlier than the date on which the employer’s notice is due to expire,

and the reason for the dismissal is to be taken to be the reason for which the employer’s notice is given.

63 Effective date of termination

(1) Subject to the following provisions of this Article, in this Part “the effective date of termination” –

(a) in relation to an employee whose contract of employment is terminated by notice, whether given by his employer or by the employee, means the date on which the notice expires;

(b) in relation to an employee whose contract of employment is terminated without notice, means the date on which the termination takes effect; and

(c) in relation to an employee who is employed under a fixed term contract of employment which expires without being renewed under the same contract, means the date on which the term expires.

(2) Where –

(a) the contract of employment is terminated by the employer; and

(b) the notice required by Article 56 to be given by an employer would, if duly given on the material date, expire on a date later than the effective date of termination,

for the purposes of Article 73 the later date shall be the effective date of termination.

(3) In paragraph (2)(b) “the material date” means –

(a) the date when notice of termination was given by the employer; or

(b) where no notice was given, the date when the contract of employment was terminated by the employer.

(4) Where –

(a) the contract of employment is terminated by the employee;

(b) the material date does not fall during a period of notice given by the employer to terminate that contract; and

(c) had the contract been terminated not by the employee but by notice given on the material date by the employer, that notice would have been required by Article 56 to expire on a date later than the effective date of termination (as defined by paragraph (1)),

for the purposes of Article 73 the later date shall be the effective date of termination.

(5) In paragraph (4) “the material date” means –

(a) the date when notice of termination was given by the employee; or

(b) where no notice was given, the date when the contract of employment was terminated by the employee.

Fairness

64 General

(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it shall be for the employer to show –

(a) the reason (or, if more than one, the principal reason) for the dismissal; and

(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason shall fall within this paragraph if it –

(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do;

(b) relates to the conduct of the employee;

(d) is that the employee could not continue to work in the position which he held without contravention, (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

(3) In paragraph (2)(a) –

(a) “capability”, in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality; and

(b) “qualifications”, in relation to an employee, means any degree, diploma or other academic, technical or professional qualification relevant to the position which he held.

(4) Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) shall –

(a) depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

(b) be determined in accordance with equity and the substantial merits of the case.

(5) Paragraph (4) shall be subject to Articles 63 and 65 to 72.

65 Dismissal on grounds related to union membership or activities

(1) For the purposes of this Part the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee –

(a) was, or proposed to become, a member of a trade union;

(b) had taken part, or proposed to take part, in the activities of a trade union at an appropriate time; or

(c) was not a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, or had refused, or proposed to refuse, to become or remain a member.

(2) In paragraph (1)(b) “an appropriate time” means –

(a) a time outside the employee’s working hours; or

(b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union,

and for this purpose “working hours”, in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work.

(3) Where the reason, or one of the reasons, for the dismissal was –

(a) the employee’s refusal, or proposed refusal, to comply with a requirement (whether or not imposed by his contract of employment or in writing) that, in the event of his not being a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, he must make one or more payments; or

(b) his objection, or proposed objection, (however expressed) to the operation of a provision (whether or not forming part of his contract of employment or in writing) under which, in the event mentioned in paragraph (a), his employer is entitled to deduct one or more sums from the remuneration payable to him in respect of his employment,

the reason shall be treated as falling within paragraph (1)(c).

(4) References in this Article to being, becoming or ceasing to remain a member of a trade union include references to being, becoming or ceasing to remain a member of a particular branch or section of that union or of one of a number of particular branches or sections of that trade union; and references to taking part in the activities of a trade union shall be similarly construed.

66 Selection for redundancy on grounds related to union membership or activities

Where the reason or principal reason for the dismissal of an employee was that he was redundant, but it is shown –

(a) that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by him and who have not been dismissed by the employer; and

(b) that the reason (or, if more than one, the principal reason) why he was selected for dismissal was one of those specified in Article 65,

the dismissal shall be regarded as unfair for the purposes of this Part.

67 Dismissal for family or other reasons

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –

(a) the reason or principal reason for the dismissal is of a specified kind; or

(b) the dismissal takes place in specified circumstances.

(2) A reason or set of circumstances specified under this Article shall relate to pregnancy, childbirth or maternity and it may also relate to redundancy or other factors.

(3) In this Article “specified” means specified by the States in Regulations, and such Regulations may apply any enactment, in such circumstances as may be specified and subject to any conditions specified, in relation to persons regarded as unfairly dismissed by reason of this Article.

68 Assertion of statutory right

(1) Subject to Article 71, an employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee –

(a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right; or

(b) alleged that the employer had infringed a right of his which is a relevant statutory right.

(2) It is immaterial for the purposes of paragraph (1) –

(a) whether or not the employee has the right; or

(b) whether or not the right has been infringed,

but, for that paragraph to apply, the claim to the right and that it has been infringed must be made in good faith.

(3) It is sufficient for paragraph (1) to apply that the employee, without specifying the right, made it reasonably clear to the employer what was the right claimed to have been infringed.

(4) The following are relevant statutory rights for the purposes of this Article –

(a) any right conferred by this Law for which the remedy for its infringement is by way of a complaint or reference to the Tribunal; and

(b) the right conferred by Article 26.

69 The minimum wage

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that –

(a) any action was taken, or was proposed to be taken, by or on behalf of the employee with a view to enforcing, or otherwise securing the benefit of, a right of the employee to which this Article applies; or

(2) It shall be immaterial for the purposes of paragraph (1)(a) or (b) –

(a) whether or not the employee has the right; or

(b) whether or not the right has been infringed,

but, for that paragraph to apply, the claim to the right and, if applicable, the claim that it has been infringed must be made in good faith.

(3) The following are the rights to which this Article applies –

(a) any right conferred by, or by virtue of, any provision of Part 4 for which the remedy for its infringement is by way of a complaint to the Tribunal; and

(b) any right conferred by Article 26.

70 Redundancy

An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –

(a) the reason (or, if more than one, the principal reason) for the dismissal is that the employee was redundant;

(b) it is shown that the circumstances constituting the redundancy applied equally to one or more other employees in the same undertaking who held positions similar to that held by the employee and who have not been dismissed by the employer; and

(c) it is shown that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was any one of those specified in –

(i) Article 68(1) (read with Article 68(2) and (3)), or

(ii) Article 69(1) (read with Article 69(2)).

71 Replacements

(1) Where this Article applies to an employee he shall be regarded for the purposes of Article 64(1)(b) as having been dismissed for a substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) This Article applies to an employee where –

(a) on engaging him the employer informs him in writing that his employment will be terminated on the resumption of work by another employee who is, or will be, absent wholly or partly because of pregnancy or childbirth; and

(b) the employer dismisses him in order to make it possible to give work to the other employee.

(3) This Article also applies to an employee where –

(a) on engaging him the employer informs him in writing that his employment will be terminated on the end of a suspension of another employee from work on medical grounds or maternity grounds; and

(b) the employer dismisses him in order to make it possible to allow the resumption of work by the other employee.

(4) Article 64(4) shall not apply in a case to which this Article applies.

72 Pressure on employer to dismiss unfairly

(1) This Article shall apply where there falls to be determined for the purposes of this Part a question –

(a) as to the reason, or principal reason, for which an employee was dismissed;

(b) whether the reason or principal reason for which an employee was dismissed was a reason fulfilling the requirement of Article 64(1)(b); or

(c) whether an employer acted reasonably in treating the reason or principal reason for which an employee was dismissed as a sufficient reason for dismissing him.

(2) In determining the question no account shall be taken of any pressure which by calling, organising, procuring or financing a strike or other industrial action, or threatening to do so, was exercised on the employer to dismiss the employee; and the question shall be determined as if no such pressure had been exercised.

Exclusion of right

73 Qualifying period and hours of employment

(1) Subject to the provisions of paragraphs (2) to (4), Article 61 shall not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than 26 weeks or such other period as may be prescribed, computed in accordance with Article 57, ending with the effective date of termination.

(2) Paragraph (1) shall not apply if Article 67(1) or (2), 68(1), 69(1), or 70 applies.

(3) If an employee is employed under a contract of employment for a fixed term of 26 weeks, or such other period as may be prescribed, or less, Article 61 shall not apply to the dismissal of that employee unless at least two-thirds of the fixed term have expired on the effective date of dismissal, and for this purpose parts of a day that have expired shall be rounded up to a whole day.

(4) Article 61 shall not apply to the dismissal of an employee whose basic contractual hours of employment are less than 8 hours a week.

74 Upper age limit

(1) Article 61 shall not apply to the dismissal of an employee if on or before the effective date of termination he has attained –

(a) in a case where –

(i) in the undertaking in which the employee was employed there was a normal retiring age for an employee holding the position held by the employee, and

(ii) the age was the same whether the employee holding that position was a man or a woman,

that normal retiring age;

(b) in a case where –

(i) in the undertaking in which the employee was employed there was a normal retiring age for an employee holding the position held by the employee, and

(ii) there are different normal retiring ages for men and women,

the higher of the two retiring ages; and

(2) Paragraph (1) shall not apply if Article 67(1) or (2), 68(1), 69(1), or 70 applies.

75 Lower age limit

Article 61 shall not apply to the dismissal of an employee unless on the effective date of termination he is no longer of compulsory school age.

CHAPTER 2

REMEDIES FOR UNFAIR DISMISSAL

76 Complaints to the Tribunal

(1) Subject to Article 80(2), a complaint may be presented to the Tribunal against an employer by any person that he was unfairly dismissed by the employer.

(2) Subject to paragraph (3), the Tribunal shall not consider a complaint under this Article unless it is presented to the Tribunal –

(a) before the end of the period of 8 weeks beginning with the effective date of termination; or

(b) within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of 8 weeks.

(3) Where a dismissal is with notice, the Tribunal shall consider a complaint under this Article if it is presented after the notice is given but before the effective date of termination.

(4) In relation to a complaint which is presented as mentioned in paragraph (3), the provisions of this Law, so far as they relate to unfair dismissal, shall have effect as if –

(a) references to a complaint by a person that he was unfairly dismissed by his employer included references to a complaint by a person that his employer has given him notice in such circumstances that he will be unfairly dismissed when the notice expires;

(b) references to reinstatement included references to the withdrawal of the notice by the employer;

(c) references to the effective date of termination included references to the date which would be the effective date of termination on the expiry of the notice; and

(d) references to an employee ceasing to be employed included references to an employee having been given notice of dismissal.

77 The remedy: compensation

(1) Where, on a complaint under Article 76, the Tribunal finds that the grounds of the complaint are well-founded, the Tribunal shall make an award of compensation in accordance with an Order made under paragraph (2).

(2) The Committee shall by Order specify a scale of compensation which may be awarded by the Tribunal under paragraph (1).

CHAPTER 3

SUPPLEMENTARY

78 Death of employer or employee

(1) Where –

(a) an employer has given notice to an employee to terminate his contract of employment; and

(b) before that termination the employee or the employer dies,

this Part shall apply as if the contract had been duly terminated by the employer by notice expiring on the date of the death.

(2) Where –

(a) an employee’s contract of employment has been terminated;

(b) by virtue of Article 63(2) or (4) a date later than the effective date of termination as defined in paragraph (1) of that Article is to be treated for certain purposes as the effective date of termination; and

Article 63(2) or (4) shall apply as if the notice referred to in that paragraph as required by Article 56 expired on the date of the death.

(3) Where an employee has died, if the Tribunal finds that the grounds of the complaint are well-founded, the case shall be treated as falling within Article 77.

PART 8

CONTRACTING OUT ETC. AND REMEDIES

79 Restrictions on contracting out

(1) A provision in a contract (whether a relevant agreement or not) shall be void in so far as it purports –

(a) to exclude or limit the operation of any provision of this Law; or

(b) to preclude a person from bringing any proceedings under this Law before the Tribunal,

except as permitted by this Law.

(2) Paragraph (1) shall not apply to an agreement to refrain from instituting or continuing proceedings before the Tribunal where a conciliation officer has taken action under Article 4 of the Jersey Advisory and Conciliation (Jersey) Law 2003[9] or if the conditions regulating compromise agreements under this Law are satisfied in relation to the agreement.

(3) For the purposes of paragraph (2) the conditions regulating compromise agreements under this Law are that –

(a) the agreement must be in writing;

(b) the agreement must relate to the particular proceedings;

(c) the employee must have received advice from a relevant independent adviser as to the terms and effect of the proposed agreement and, in particular, its effect on his ability to pursue his rights before the Tribunal;

(d) there must be in force, when the adviser gives the advice, a contract of insurance, or an indemnity provided for members of a profession or professional body, covering the risk of a claim by the employee in respect of loss arising in consequence of the advice;

(e) the agreement must identify the adviser; and

(f) the agreement must state that the conditions regulating compromise agreements under this Law are satisfied.

(4) A person is a relevant independent adviser for the purposes of paragraph (3)(c) –

(a) if he is a qualified lawyer;

(b) if he is an officer, official, employee or member of a trade union who has been certified in writing by the trade union as competent to give advice and as authorized to do so on behalf of the trade union;

(c) if he works at an advice centre (whether as an employee or a volunteer) and has been certified in writing by the centre as competent to give advice and as authorized to do so on behalf of the centre; or

(d) if he is a person of a description specified in an Order made by the Committee.

(5) A person shall not be a relevant independent adviser for the purposes of paragraph (3)(c) in relation to the employee –

(a) if he is, is employed by or is acting in the matter for the employer or an associated employer;

(b) in the case of a person within paragraph (4)(b) or (c), if the trade union or advice centre is the employer or an associated employer;

(c) in the case of a person within paragraph (4)(c), if the employee makes a payment for the advice received from him; or

(d) in the case of a person of a description specified in an Order under paragraph (4)(d), if any condition specified in the Order in relation to the giving of advice by persons of that description is not satisfied.

(6) In paragraph (4)(a) “qualified lawyer” means a solicitor or advocate who is entitled to practise as such under Article 2 of the Advocates and Solicitors (Jersey) Law 1997.[10]

(7) For the purposes of this Article any two employers shall be treated as associated if –

(a) one is a company of which the other (directly or indirectly) has control; or

(b) both are companies of which a third person (directly or indirectly) has control,

and “associated employer” shall be construed accordingly.

80 Remedy for infringement of rights under this Law and under contracts of employment

(1) Subject to Article 76, and notwithstanding Article 86, an employer or an employee may bring proceedings for infringement of any of the rights conferred by this Law by way of complaint or reference to the Tribunal, and Article 86(3) shall apply to any such reference or complaint.

(2) Nothing in this Law shall prevent an employer or an employee from bringing proceedings in the courts for breach of a contract of employment, and on commencement of such proceedings any proceedings before the Tribunal shall be discontinued.

(3) On discontinuance of proceedings before the Tribunal under paragraph (2) the party bringing proceedings in the courts shall indemnify the other party in respect of the other party’s costs in relation to the discontinued proceedings before the Tribunal in such sum as the Court shall award.

PART 9

THE TRIBUNAL

81 Establishment of the Tribunal

(1) There is established a Tribunal to be known as the Jersey Employment Tribunal.

(2) The Tribunal shall exercise the jurisdiction conferred on it by or under this or any other Law.

82 Constitution, membership and administration of the Tribunal

(1) The States may by Regulations provide for the constitution, membership and administration of the Tribunal.

(2) Regulations made under paragraph (1) may provide for –

(a) the appointment of the Chairman of the Tribunal;

(b) the appointment of members of the Tribunal;

(d) the composition of the body of members to hear applications to the Tribunal;

(e) the remuneration and reimbursement of expenses of members of the Tribunal; and

(f) such matters as may be necessary or convenient for the administration of the Tribunal.

83 Limitation of civil liability

A member of the Tribunal shall not be liable in damages for anything done or omitted in the discharge or purported discharge of any functions under this Law unless it is shown that the act or omission was in bad faith.

84 Declaration of interests, etc.

(1) If a member of the Tribunal has a personal or pecuniary interest, direct or indirect, in a matter which is the subject of an application or reference to a Tribunal on which he is sitting, he shall, as soon as practicable after the commencement of the hearing of the application or reference or after the disclosure of the matter in which he has such an interest, disclose the fact and shall not take any further part in the hearing or in the decision reached as the result of the hearing.

(2) A person who fails to comply with the provisions of paragraph (1) shall be guilty of an offence and liable on conviction to a fine not exceeding level 4 on the standard scale.[11]

(3) For the purposes of paragraph (1) a member of the Tribunal shall be treated as having an indirect pecuniary interest if he or any nominee of his is a partner or an adviser of, or is a member, employee or adviser of a company or other body which is, or is associated with, a party to the issue which is the subject of the application or reference.

(4) Paragraph (1) shall not apply to an interest in a matter which a member of the Tribunal has as a member of the public.

(5) Where a member of the Tribunal has an indirect pecuniary interest in a matter by reason only of a beneficial interest in the securities of a company or other body and the nominal value of those securities does not exceed one thousandth of the total nominal value of the issued share capital of the company or the body, paragraph (1) shall not prohibit him from taking part in the hearing and the reaching of the decision as the result of the hearing.

85 Appointment of secretary and staff

(1) The Committee shall appoint or designate a person nominated by the Tribunal to act as Secretary of the Tribunal and shall appoint, designate or contract for the provision of such other staff as it shall determine are necessary for the administration of the Tribunal.

(2) Appointments and designations under paragraph (1) shall be made on such terms as to remuneration and other conditions of service as the Committee shall determine.

(3) If the persons appointed or designated under paragraph (1) are not public officers, the Committee shall make such arrangements as it considers necessary for the payment of pensions and associated benefits to the persons appointed or designated and their dependants.

86 Jurisdiction

(1) Proceedings may be brought before the Tribunal in respect of an employment dispute to which this Article applies by any party to the dispute, whether or not it has been the subject of conciliation by JACS.

(2) Proceedings may be referred to the Tribunal in respect of an employment dispute to which this Article applies by JACS, a conciliation officer designated by JACS as such under Article 5 of the Jersey Advisory and Conciliation (Jersey) Law 2003,[12] or by a person appointed by JACS under Article 4 of that Law[13] to offer assistance to the parties.

(3) This Article shall apply to an individual employment dispute which involves a claim in respect of which a court in Jersey would under the law for the time being in force have jurisdiction, except an employment dispute which –

(a) has been the subject of an award after arbitration in accordance with Article 6 of the Jersey Advisory and Conciliation (Jersey) Law 2003;[14]

(b) includes a claim for damages for personal injuries; or

(i) requiring the employer to provide living accommodation for the employee,

(ii) imposing an obligation on the employer or the employee in connection with living accommodation,

(iii) relating to intellectual property,

(iv) imposing an obligation of confidence, or

(v) which is a covenant in restraint of trade.

(4) This Article shall apply to a collective employment dispute, except a collective employment dispute which has been the subject of an award after arbitration in accordance with Article 6 of the Jersey Advisory and Conciliation (Jersey) Law 2003,[15] where –

(a) in any trade or industry terms and conditions of employment are established which have been settled by machinery of negotiation or arbitration to which the parties are organisations of employers and of employees representative respectively of substantial proportions of the employers and employees engaged in that trade or industry (hereinafter referred to as “recognized terms and conditions”);

(b) the dispute is as to whether an employer should observe the recognized terms and conditions; and

(c) subject to paragraph (5), the parties to the dispute have agreed that the dispute, not having been resolved, should be referred to the Tribunal for resolution.

(5) Despite paragraph (4)(c), either party to a collective dispute may refer the dispute to the Tribunal for resolution if all procedures for dispute resolution, whether established within the trade or industry or by this or any other Law, have been applied and have been unsuccessful in resolving the dispute.

Subject to paragraphs (3) and (4), this Article shall apply to such individual or collective employment disputes as may be provided by this Law or any other enactment.

(6) Subject to Article 87 the Tribunal shall not in any proceedings order the payment to an individual of an amount exceeding such sum as may be prescribed from time to time.

87 Regulations

The States may by Regulations –

(a) provide that proceedings in respect of a claim, other than proceedings which may be brought in accordance with Article 86, may be brought before the Tribunal; and

(b) impose exceptions, conditions and reservations in respect of proceedings which may be brought before the Tribunal under this Law.

88 Awards

(1) Where proceedings in respect of an employment dispute have been brought before, or referred to, the Tribunal and the Tribunal is of opinion that there are recognized terms and conditions applicable to the case and that the employer or the employee concerned is not observing –

(a) those terms and conditions; or

(b) terms and conditions of employment which, in the opinion of the Tribunal, are not less favourable to the employee than those terms and conditions,

it may by its award require the employer or the employee to observe the recognized terms and conditions or such terms and conditions of employment as may be determined by it to be not less favourable to the employee than the recognized terms and conditions.

(2) Where an award has been made by the Tribunal, as from the date of the award or from such other date as the Tribunal may direct, not being earlier than the date on which the employment dispute to which the award relates first arose, it shall be a term of the contract between the employer and the employee or employees to whom the award applies that the terms and conditions of employment to be observed under the contract shall be in accordance with the award until varied by subsequent agreement between the parties or by a subsequent award of the Tribunal, or until different terms and conditions of employment in respect of the employee or employees concerned are settled through the machinery of negotiation or arbitration for the settlement of terms and conditions of employment in the trade or industry or the undertaking in which the employee or those employees are employed.

(3) Where –

(a) proceedings in respect of an individual employment dispute have been brought before, or referred to, the Tribunal;

(b) the dispute is in relation to money which may be due to be paid under the terms of a contract of employment entered into between the parties; and

the Tribunal may by its award require that sum of money to be paid.

(4) Where proceedings in respect of an individual or a collective employment dispute, or proceedings for infringement of any of the rights conferred by this Law, have been brought before, or referred to, the Tribunal, the Tribunal may by its award require any person to take, or refrain from taking, any action specified in the award.

89 Procedure

(1) The Tribunal shall have, as regards the attendance, swearing and examination of witnesses, the production and inspection of documents, and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in the Royal Court and, without limiting the generality of the preceding provisions of this Article, may –

(a) issue a summons to any person (including a party to the proceedings) requiring him to appear at the time and place mentioned therein to testify to all matters within his knowledge relative to the subject or proceedings before the Tribunal, and to bring with him and produce any document, book or papers that he has in his possession or under his control relative to such subject;

(b) administer oaths and examine any person on oath, affirmation or otherwise; and

(i) that answer of the party to that question may help to clarify any issue likely to arise for determination in the proceedings, and

(ii) that it would be likely to assist the progress of the proceedings for that answer to be available to the Tribunal before the hearing,

and may appoint the time within which the answer is to be furnished.

(2) In this Article “document” includes information held in electronic form.

90 Publicity

(1) Subject to paragraph (2) the Tribunal shall sit in public.

(2) Despite paragraph (1) the Tribunal may sit in private for the purposes of hearing evidence from any person which in the opinion of the Tribunal is likely to consist of –

(a) information which he could not disclose without contravening a prohibition imposed by or under any enactment;

(b) information which has been communicated to him in confidence or which he has otherwise obtained in consequence of the confidence reposed in him by another person; or

(c) information, the disclosure of which would cause substantial injury to any undertaking of his, or any undertaking in which he works, for reasons other than its effect on negotiations with respect to the terms of employment, or the conditions of labour, of the persons in the employment of the undertaking in question.

(3) In any case which involves allegations of sexual misconduct the Tribunal may at any time before it issues its decision, either on the application of a party or of its own motion make a restricted reporting order prohibiting the publication in Jersey of identifying matter in a written publication available to the public or in a programme broadcast in Jersey by television, radio or any other telecommunications or internet service.

(4) When the Tribunal makes an order under paragraph (3) and that case is being dealt with together with any other proceedings, the Tribunal may direct that the order shall apply also in relation to those other proceedings or such part of them as the Tribunal may direct.

(5) The Tribunal shall not make an order under paragraph (3) unless it has given each party an opportunity to advance either written or oral argument.

(6) The Tribunal may revoke an order under paragraph (3) at any time.

(7) If any identifying matter is published in contravention of an order under paragraph (3) –

(a) in the case of publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;

(b) in the case of publication in any other written form, the person publishing the matter; and

(i) any body corporate engaged in providing the service in which the programme is included, and

(ii) any persons having functions in relation to the programme corresponding to those of an editor of a newspaper,

shall be guilty of an offence and liable to a fine.

(8) Where a person is charged with an offence under paragraph (7) it shall be a defence to prove that at the time of the alleged offence he was not aware and neither suspected nor had reason to suspect, that the publication or programme in question was of, or included, the matter in question.

(9) Where an offence under paragraph (7) committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of –

(a) a director, manager, secretary or other similar officer of the body corporate; or

(b) a person purporting to act in any such capacity,

he, as well the body corporate, shall be guilty of the offence and liable to be proceeded against and prosecuted accordingly.

(10) In relation to a body corporate whose affairs are managed by its members, “director”, in paragraph (9), means a member of the body corporate.

(11) In this Article –

“identifying matter”, in relation to a person, means any matter likely to lead members of the public to identify him as a person affected by, or as a party to, the case in question;

“sexual misconduct” means the commission of a sexual offence, sexual harassment or other adverse conduct, of whatever nature, related to sex, and conduct is related to sex whether the relationship with sex lies in the character of the conduct or in its having reference to the sex or sexual orientation of the person at whom the conduct is directed; and

“sexual offence” means –

(a) rape;

(b) incest;

(d) indecent assault;

(e) procuring an act of gross indecency;

(f) any offence under the Loi (1895) modifiant le droit criminel,[16] other than an offence under Article 9 of that Law;

(g) any offence under Article 45 of the Mental Health (Jersey) Law 1969;[17]

(h) any offence of attempting to commit any of the offences in sub-paragraphs (a) to (g);

(i) any offence of conspiracy or incitement to commit any of the offences in sub-paragraphs (a) to (g); or

(j) any offence of aiding, abetting, counselling or procuring any of the offences in sub-paragraphs (a) to (i).

91 Conduct of hearings

(1) A person may appear before the Tribunal in person or be represented by any person whom he wishes to represent him.

(2) Part II of the Arbitration (Jersey) Law 1998[18] shall not apply to any proceedings before the Tribunal.

(3) The Committee may by Order make such provision as appears to it to be necessary or expedient with respect to proceedings before the Tribunal.

(4) Orders made under paragraph (3) may, in particular, include provision –

(a) for the reference of employment disputes to the Tribunal;

(b) for the manner in which and the time within which proceedings may be brought before the Tribunal;

(d) for the hearing, investigation and determination of employment disputes by the Tribunal;

(e) for the manner in which proceedings in respect of a claim which has been brought before the Tribunal may be disposed of;

(f) for the appointment of an assessor for the purposes of assisting proceedings before the Tribunal;

(g) for the award of costs or expenses; and

(h) for the registration and proof of decisions, orders and awards of the Tribunal.

92 Expenses

All expenses incurred in the administration of this Part shall, subject to the provisions of any Regulations made under Article 87, be defrayed out of the annual income of the States.

93 Enforcement

(1) A sum payable in pursuance of a decision of the Tribunal shall be recoverable by action before the court on application made on behalf of the Tribunal.

(2) An order of the Tribunal to take any action or to refrain from taking any action, may be enforced on application to the court made on behalf of the Tribunal.

94 Appeals

(1) An appeal on a question of law shall lie from a decision or order of the Tribunal to the Royal Court with the leave of the Tribunal or of the Royal Court.

(2) No appeal shall lie from a decision of the Tribunal refusing leave for the institution or continuance of, or for the making of an application in, proceedings by a person who is the subject of an order under Article 1 of the Civil Proceedings (Vexatious Litigants) (Jersey) Law 2001.[19]

95 Offences

(1) A person who without reasonable excuse –

(a) in proceedings before the Tribunal –

(i) makes a statement which he knows or believes to be false, misleading or deceptive in a material particular,

(ii) recklessly makes a statement which is false, misleading or deceptive in a material particular, or

(iii) produces or furnishes or causes or permits to be produced or furnished any information or document which he knows or believes to be false, misleading or deceptive in a material particular;

(b) on being duly summoned as a witness before the Tribunal, fails without reasonable excuse to attend;

(i) to take the oath or affirmation,

(ii) to produce any document in his possession, custody or power, or

(iii) subject to paragraph (2), to answer any question put to him; or

(d) does any other thing before the Tribunal which, if done before the Royal Court, would constitute a contempt of court,

shall be guilty of an offence, and shall be liable to a fine or to imprisonment for a term not exceeding 2 years, or to both.

(2) A person giving evidence to the Tribunal shall not be compellable to answer any question tending to incriminate himself.

(3) In this Article “document” includes information held in electronic form.

PART 10

MISCELLANEOUS

96 Appointment of officers

(1) The Committee –

(a) may appoint officers to act for the purposes of this Law all of whom shall be officers within the meaning of the Civil Service Administration (Jersey) Law 1953;[20] and

(b) may, instead of or in addition to appointing any officers under this Article, arrange with any other Committee or administration of the States, or any body performing functions on behalf of the States, that officers of that Committee, administration or body shall act for those purposes.

(2) When acting for the purposes of this Law, an officer shall, if so required, produce some duly authenticated document showing his authority so to act.

(3) If it appears to an officer that any person with whom he is dealing while acting for the purposes of this Law does not know that he is an officer so acting, the officer shall identify himself as such to that person.

97 Powers of officers

(1) An officer acting for the purposes of this Law shall have power for the performance of his duties –

(a) to require the production by a relevant person of any records required to be kept and preserved in accordance with this Law or Regulations made under this Law and to inspect and examine those records and to copy any material part of them;

(b) to require a relevant person to furnish to him (either alone or in the presence of any other person, as the officer thinks fit) an explanation of any such records;

(c) to require a relevant person to furnish to him (either alone or in the presence of any other person, as the officer thinks fit) any additional information known to the relevant person which might reasonably be needed in order to establish whether this Law, or any notice under this Law, is being or has been complied with; and

(d) to visit any relevant premises in order to exercise any power conferred on the officer by sub-paragraphs (a) to (c).

(2) Without prejudice to paragraph (1) or to any power conferred by this Law, if the Bailiff is satisfied by information on oath by an officer acting for the purposes of this Law that there are reasonable grounds for suspecting that there are –

(a) records such as are referred to in paragraph (1)(a) kept in any premises; or

(b) there is, on any premises, any information, article or record, held in any form, that may be relevant to or associated with information such as is referred to in sub-paragraph (a),

he may grant a warrant authorising that officer, or any other person named in the warrant, to enter and search any premises within one month of the date on which the warrant was granted.

(3) Where a warrant has been granted under paragraph (2), the officer or person named in the warrant shall have power to enter those premises at any time by day, or by night if accompanied by a police officer, and to search for, seize and detain or remove any such information, article or record or any documents relating to any such thing, article or record and, so far as is reasonably necessary for the purpose of such entry, search, seizure, detention or removal, to break open any door, window or container and force and remove any other impediment or obstruction.

(4) No person shall be required under paragraph (1)(b) or (c) to answer any question or furnish any information which might incriminate the person or, if married, the person’s spouse.

(5) The powers conferred by paragraph (1) shall include power, on reasonable written notice, to require a relevant person –

(a) to produce any such records as are mentioned in paragraph (1)(a) to an officer at such time and place as may be specified in the notice; or

(b) to attend before an officer at such time and place as may be specified in the notice to furnish any such explanation or additional information as is mentioned in paragraph (1)(b) or (c).

(6) In this Article “relevant person” means any person whom an officer acting for the purposes of this Law has reasonable cause to believe to be –

(a) the employer or former employer of an employee;

(b) a person who for the purposes of Article 36 is the agent or the principal;

(d) an employee, servant or agent of a person falling within paragraph (a), (b) or (c); or

(e) a person who qualifies for the minimum wage.

(5) In this Article “relevant premises” means any premises which an officer acting for the purposes of this Law has reasonable cause to believe to be –

(a) premises at which an employer carries on business; or

(b) premises which an employer uses in connection with his business (including any place used, in connection with that business, for giving out work to home workers, within the meaning of Article 36).

(6) A person who –

(a) wilfully delays or obstructs an officer acting for the purpose of this Law in the exercise of any power under this Law; or

(b) refuses or neglects –

(i) to answer any question or to furnish any information,

(ii) to furnish any information, or

(iii) to produce any document (including a document held in electronic form),

when required to do so under this Article,

shall be guilty of an offence and liable to a term of imprisonment not exceeding 2 years, or a fine, or both.

98 Transfer of information

(1) Information obtained by the Comptroller of Income Tax or by a person appointed under Article 8 of the Income Tax (Jersey) Law 1961[21] in the course of carrying out a function of the Comptroller of Income Tax under that Law shall, with the approval of the Finance and Economics Committee be supplied by the Comptroller of Income Tax to an officer appointed or acting under Article 96, or to the Attorney-General, for the purposes of preventing, detecting, or bringing a prosecution in respect of an offence under this Law.

(2) Information obtained by an officer of the Employment and Social Security Committee who is authorized under Article 34 of the Social Security (Jersey) Law 1974[22] in the course of carrying out his functions or duties under that Law may be supplied by him to an officer appointed or acting under Article 96, or to the Attorney-General, for the purposes of preventing, detecting, or bringing a prosecution in respect of an offence under this Law.

99 Information obtained by officers

(1) This Article shall apply to any information obtained by an officer acting for the purposes of this Law, whether by virtue of Article 97(1)(a) or (b).

(2) Information to which this Article applies vests in the Committee.

(3) Information to which this Article applies may be used for any purpose relating to this Law by –

(a) the Committee; or

(b) any relevant authority whose officer obtained the information.

(4) Information to which this Article applies –

(a) may be supplied by, or with the authorization of, the Committee to any relevant authority for any purpose relating to this Law; and

(b) may be used by the recipient for any purpose relating to this Law.

(5) Information supplied under paragraph (4) –

(a) shall not be supplied by the recipient to any other person or body unless it is supplied for the purposes of any civil or criminal proceedings relating to this Law; and

(b) shall not be supplied in those circumstances without the authorization of the Committee.

(6) This Article shall not limit the circumstances in which information may be supplied or used apart from this Article.

(7) Paragraph (2) shall not affect the title or rights of –

(a) any person whose property the information was immediately before it was obtained as mentioned in paragraph (1); or

(b) any person claiming title or rights through or under such a person otherwise than by virtue of any power conferred by or under this Law.

(8) In this Article “relevant authority” means any Committee or administration of the States or other body which is party to arrangements made with the Committee which are in force under Article 96(1)(b).

100 Publicity

(1) The Committee shall arrange for information about this Law and Regulations and Orders under it to be published by such means as appear to the Committee to be most appropriate for drawing the provisions of this Law and those Regulations and Orders to the attention of persons affected by them.

(2) The information required to be published under paragraph (1) includes, in particular, information about –

(a) the hourly rate for the time being prescribed under Article 16;

(b) the method or methods to be used for determining under Article 17 the hourly rate at which a person is to be regarded for the purposes of this Law as remunerated by his employer in respect of his work in any pay reference period; and

101 Application

(1) Subject to paragraph (2), this Law shall only apply to employment where the employee works wholly or mainly in Jersey.

(2) Articles 51, 52 and Part 7 shall apply to a person employed to work on board a ship registered in Jersey unless –

(a) the employment is wholly outside Jersey; or

(b) the person is not ordinarily resident in Jersey.

102 Law governing employment

For the purposes of this Law it is immaterial whether the law which (apart from this Law) governs any person’s employment is the law of Jersey or not.

103 Offences by bodies corporate

(1) Where an offence under this Law, which has been committed by a limited liability partnership or a body corporate, is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of –

(a) a partner of the partnership, or a director, manager, secretary or other similar officer of the body corporate; or

(b) a person who was purporting to act in any such capacity,

he, as well as the partnership or body corporate, shall be guilty of that offence and be liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, paragraph (1) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

104 Regulations and Orders

(1) The Committee may by Order make provision for the purpose of carrying this Law into effect and, in particular, but without prejudice to the generality of the foregoing, for or with respect to any matter that may be prescribed or provided for under this Law by Order of that Committee.

(2) The Committee may by Order make provision for this Law to apply, with or without modifications, or to cease to apply to a prescribed class or classes of individuals either as employers or employees.

(3) The States may by Regulations make provision for the purpose of carrying this Law into effect and, in particular, but without prejudice to the generality of the foregoing, for or with respect to any matter that may be specified or provided for under this Law by Regulations.

(4) Except to the extent that this Law makes provision to the contrary, an Order or Regulations made under this Law may –

(a) make different provision in relation to different cases, circumstances or descriptions of person; and

(b) apply in respect of particular persons or particular cases or particular classes of persons or particular classes of cases, and define a class by reference to any circumstances whatsoever.

(5) Paragraph 4(a) shall not have effect in relation to Orders under Article 16(3).

(6) Regulations made under this Law may create an offence punishable by a fine not exceeding level 4 on the standard scale.[23]

(7) Regulations made under this Law may contain provisions modifying any enactment in consequence of the enactment of this Law.

(8) The Subordinate Legislation (Jersey) Law 1960[24] shall apply to Orders made under this Law.

105 Consequential provisions

(1) In the Maintenance Orders (Enforcement) (Jersey) Law 1999, in the definition of “wages” in Article 1,[25] for the words “Payment of Wages (Jersey) Law 1962” there shall be substituted “Employment (Jersey) Law 2003”.

(2) References in paragraphs 12 and 44 of the Schedule to the Broadcasting Act 1981 (Channel Islands) Order 1987[26] to the Industrial Disputes Officer appointed under the Industrial Disputes (Jersey) Law 1956[27] as amended from time to time shall be construed as references to JACS.

106 Repeals

The enactments specified in Schedule 3 are repealed.

107 Transitional provisions and savings

Schedule 4 shall have effect.

108 Citation and commencement

This Law may be cited as the Employment (Jersey) Law 2003 and shall come into force on such day as the States may by Act appoint, and different days may be appointed for different purposes or different provisions of this Law.

M.N. DE LA HAYE

Greffier of the States.

SCHEDULE 1

(Article 13)

a week’s pay

1 General

(1) This paragraph and paragraphs 2 and 3 shall apply where there are normal working hours for the employee when employed under the contract of employment in force on the calculation date.

(2) Subject to paragraph 2, if the employee’s remuneration for employment in normal working hours (whether by the hour or week or other period) does not vary with the amount of work done in the period, the amount of a week’s pay shall be the amount which is payable by the employer under the contract of employment in force on the calculation date if the employee works throughout his normal working hours in a week.

(3) Subject to paragraph 2, if the employee’s remuneration for employment in normal working hours (whether by the hour or week or other period) does vary with the amount of work done in the period, the amount of a week’s pay shall be the amount of remuneration for the number of normal working hours in a week calculated at the average hourly rate of remuneration payable by the employer to the employee in respect of the period of 52 weeks ending –

(a) where the calculation date is the last day of a week, with that week; and

(b) otherwise, with the last complete week before the calculation date.

(4) In this paragraph references to remuneration varying with the amount of work done shall not include remuneration which may include any commission or similar payment which varies in amount.

2 Remuneration varying according to time of work

(1) This paragraph shall apply if the employee is required under the contract of employment in force on the calculation date to work during normal working hours on days of the week, or at times of the day, which differ from week to week or over a longer period so that the remuneration payable for, or apportionable to, any week varies according to the incidence of those days or times.

(2) The amount of a week’s pay shall be the amount of remuneration for the average number of weekly normal working hours at the average hourly rate of remuneration.

(3) For the purposes of subparagraph (2) –

(a) the average number of weekly hours shall be calculated by dividing by 52 the total number of the employee’s normal working hours during the relevant period of 52 weeks; and

(b) the average hourly rate of remuneration shall be the average hourly rate of remuneration payable by the employer to the employee in respect of the relevant period of 52 weeks.

(4) In subparagraph (3) “the relevant period of 52 weeks” shall mean the period of 52 weeks ending –

(a) where the calculation date is the last day of a week, with that week; and

(b) otherwise, with the last complete week before the calculation date.

3 Supplementary

(1) For the purposes of paragraphs 1 and 2, in arriving at the average hourly rate of remuneration, only –

(a) the hours when the employee was working; and

(b) the remuneration payable for, or apportionable to, those hours,

shall be brought in.

(2) If for any of the 52 weeks mentioned in paragraphs 1 and 2 no remuneration within subparagraph (1)(b) was payable by the employer to the employee, account shall be taken of remuneration in earlier weeks so as to bring up to 52 the number of weeks of which account is taken.

(3) Where –

(a) in arriving at the average hourly rate of remuneration, account has to be taken of remuneration payable for, or apportionable to, work done in hours other than normal working hours; and

(b) the amount of that remuneration was greater than it would have been if the work had been done in normal working hours (or, in a case within paragraph 4(3), in normal working hours falling within the number of hours without overtime),

account shall be taken of that remuneration as if the work had been done in normal working hours (or, in a case within paragraph 4(3), in normal working hours falling within the number of hours without overtime)and the amount of that remuneration had been reduced accordingly.

4 Employments with no normal working hours

(1) This paragraph shall apply where there are no normal working hours for the employee when employed under the contract of employment in force on the calculation date.

(2) The amount of a week’s pay shall be the amount of the employee’s average weekly remuneration in the period of 52 weeks ending –

(a) where the calculation date is the last day of a week, with that week; and

(b) otherwise, with the last complete week before the calculation date.

(3) In arriving at the average weekly remuneration no account shall be taken of a week in which no remuneration was payable by the employer to the employee and remuneration in earlier weeks shall be brought in so as to bring up to 52 the number of weeks of which account is taken.

5 The calculation date

The calculation date for the purposes of this Schedule shall be the first day of the period of leave in question.

6 New employments and other special cases.

(1) In any case in which the employee has not been employed for a sufficient period to enable a calculation to be made under the preceding provisions of this Schedule, the amount of a week’s pay shall be the amount which fairly represents a week’s pay.

(2) In determining that amount the employer –

(a) shall apply as nearly as may be the preceding provisions of this Schedule; and

(b) shall have regard to the amount of the remuneration received by the employee in respect of the employment in question.

7 Continuous employment

In arriving at average weekly remuneration under this Schedule, account shall be taken of work for a former employer within the period for which the average is to be taken if, by virtue of the provisions of any contract or enactment, a period of employment with a former employer counts as part of the employee’s continuous period of employment.

8 The minimum wage

If the calculation of the pay of an employee in accordance with the foregoing provisions of this Schedule results in a rate which is lower than the minimum wage the amount of a week’s pay for that employee shall be at the rate of the minimum wage.

SCHEDULE 2

(Article 21(10))

THE EMPLOYMENT FORUM

1 Membership

(1) The Employment Forum appointed under Article 21(9) (in this Schedule referred to as “the Forum”) shall consist of a chairman and 8 other members appointed by the Committee.

(2) In appointing members, the Committee shall have regard to the desirability of securing that there is such a balance as the States consider appropriate between –

(a) members with knowledge or experience of, or interest in, trade unions or matters relating to employees generally;

(b) members with knowledge or experience of, or interest in, employers’ associations or matters relating to employers generally; and

(3) Members shall hold and vacate office in accordance with their terms of appointment, subject to the provisions contained in sub-paragraphs (4) to (6).

(4) A member may resign his membership by giving notice to the Committee.

(5) A person who ceases to be a member shall be eligible for re-appointment.

(6) The Committee shall by notice to the member concerned remove from office a member who –

(a) has become bankrupt, has made an arrangement with his creditors, has had his estate sequestrated, has granted a trust deed for his creditors or has made a composition contract with his creditors;

(b) has been absent from two or more consecutive meetings of the Forum otherwise than for a reason approved by them; or

2 Financial provisions

The Committee may pay the members of the Forum such remuneration, and such reimbursement in respect of travel or other expenses properly incurred by them, or in respect of loss of remuneration sustained by them, in the performance of their duties, as the Committee may determine.

3 Staff, facilities and money

The Committee shall provide the Forum with –

(a) such staff;

(b) such accommodation, equipment and other facilities; and

as the Committee may reasonably determine are required by the Forum for carrying out their duties in preparing any report on matters referred to them under this Law.

4 Proceedings

(1) The quorum of the Forum and the arrangements relating to their meetings shall be such as the Forum may determine.

(2) The validity of proceedings of the Forum shall not be affected by –

(a) any vacancy among the members, whether occurring by reason of death, resignation or otherwise;

(b) the appointment of a member at any time to fill such a vacancy; or

SCHEDULE 3

(Article 106)

REPEALS

The Industrial Disputes (Jersey) Law 1956[28]

The Industrial Disputes (Amendment) (Jersey) Law 1959[29]

The Payment of Wages (Jersey) Law 1962[30]

The Payment of Wages (Amendment) (Jersey) Law 1977[31]

The Payment of Wages (Amendment No. 2) (Jersey) Law 1982[32]

The Payment of Wages (Amendment No. 3) (Jersey) Law 1998[33]

The Termination of Employment – Minimum Periods of Notice (Jersey) Law 1974[34]

The Terms of Employment (Jersey) Regulations 2001[35]

SCHEDULE 4

(Article 107)

TRANSITIONAL PROVISIONS AND SAVINGS

1 Disputes reported before commencement

If immediately before this Law comes into force a dispute has been reported to the Industrial Disputes Officer under Article 4 of the Industrial Disputes (Jersey) Law 1956,[36] or an issue has been reported under Article 5 of that Law,[37] and in the event of a dispute the Industrial Disputes Officer has not referred the dispute to the Industrial Disputes Tribunal under Article 10, the Industrial Disputes Officer shall on the coming into force of this Law refer the dispute or issue to JACS who shall deal with it in all respects as though JACS had been requested to offer assistance to the parties to the dispute or issue.

2 Disputes before Industrial Tribunal before commencement

If immediately before this Law comes into force a dispute has been referred under Article 10 of the Industrial Disputes (Jersey) Law 1956[38] to the Industrial Disputes Tribunal, that Tribunal shall remain constituted and empowered, and the dispute shall be dealt with and any award enforced, in all respects as if this Law had not come into force, and all the expenses incurred in the administration of this paragraph shall be defrayed out of the general income of the States.

3 Disputes reported to the Industrial Tribunal for advice before commencement

If immediately before this Law comes into force the Industrial Disputes Officer has referred to the Industrial Disputes Tribunal for advice under Article 14 of the Industrial Disputes (Jersey) Law 1956,[39] that Tribunal shall pass the request for advice to JACS who shall deal with the matter in all respects as though JACS had been requested to offer assistance to the parties to the dispute or issue.

4 Continuity of Law

The substitution of this Law for the provisions repealed or revoked by this Law does not affect the continuity of the law.

5 Action under Subordinate Legislation before commencement

(1) Anything done, or having effect as done, (including the making of subordinate legislation) under or for the purposes of any provision repealed or revoked by this Law shall have effect as if done under or for the purposes of any corresponding provision of this Law.

(2) Sub-paragraph (1) shall not apply to the making of any subordinate legislation to the extent that it is reproduced in this Law.

6 References to be construed as retrospective

Any reference (express or implied) in this Law or any other enactment, or in any instrument or document, to a provision of this Law shall (so far as the context permits) be read as (according to the context) being or including in relation to times, circumstances and purposes before the commencement of this Law a reference to the corresponding provision repealed or revoked by this Law.

7 Continuing validity of references to provisions

Any reference (express or implied) in any enactment, or in any instrument or document, to a provision repealed or revoked by this Law shall (so far as the context permits) be read as (according to the context) being or including in relation to times, circumstances and purposes after the commencement of this Law a reference to the corresponding provision of this Law.

8 Continuity of action taken

(1) Any Order made, or other thing done, by any person under any provision of any enactment that is repealed by this Law that still had force or effect immediately before the repeal of that provision by this Law shall, if there is a provision that gives power to do that thing under this Law, be taken to have been done under the latter provision and by the person who has, under the latter provision, the function of doing that thing.

(2) Sub-paragraph (1) is subject to any express provision, or implication, to the contrary in this Law or in Regulations made under this Law.

9 Transitional provisions, etc., in Regulations

(1) Regulations made under this Law may contain provisions of a saving or transitional nature consequent on the enactment of this Law or on the enactment and registration of any other Law, and (without affecting the generality of the preceding words) on the taking up of functions by the Tribunal.

(2) Regulations made under this Law may contain provisions modifying any enactment in consequence of the enactment of this Law.

(3) Any provision referred to in sub-paragraph (1) or (2) may, if the Regulations so provide, come into force on the day on which this Schedule comes into force or on a later day.

[1] Volume 2003, page 141.

[2] Volume 1992-1993, page 437.

[3] Tome VIII, page 9 and Volume 2001, page 123.

[4] Volume 1992-1993, page 437.

[5] Tome VIII, page 671 and Volume 1994-1995, page 67.

[6] Volume 1999, page 446.

[7] Volume 1992-1993, page 437.

[8] Volume 1973-1974, page 320.

[9] Volume 2003, 144.

[10] Volume 1996-1997, page 571.

[11] Volume 1992-1993, page 437.

[12] Volume 2003, page 145.

[13] Volume 2003, page 144.

[14] Volume 2003, page 145.

[15] Volume 2003, page 145.

[16] Tomes IV-VI, page 132, Volume 1968-1969, page 340 and Volume 1996-1997, page 1053.

[17] Volume 1968-1969, page 394.

[18] Volume 1998, page 447 and Volume 1999, page 521.

[19] Volume 2001, page 9.

[20] Tome VIII, page 319 and R&Os 9198, 9421 and 6/2002.

[21] Volume 1961-1962, page 201.

[22] Volume 1973-1974, page 345 and Volume 2000, page 887.

[23] Volume 1992-1993, page 437.

[24] Tome VIII, page 849, Volume 2001, page 3 and Volume 2003, page 159.

[25] Volume 1999, page 8.

[26] Volume 1988-1989, pages 33 and 93.

[27] Tome VIII, page 643.

[28] Tome VIII, page 643.

[29] This Law is included in the amended reprint of the Industrial Disputes (Jersey) Law 1956.

[30] Volume 1961-1962, page 485.

[31] Volume 1975-1978, page 259.

[32] Volume 1982-1983, page 7.

[33] Volume 1998, page 303.

[34] Volume 1973-1974, page 213.

[35] R&O 32/2001.

[36] Tome VIII, page 645.

[37] Tome VIII, page 646.

[38] Tome VIII, page 647.

[39] Tome VIII, page 649.

Page Last Updated: 04 Jun 2015

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Employment (Jersey) Law 2003