By David Witherington
(Director, Jersey Advisory and Conciliation Service)

1. Amendments to the Employment (Jersey) Law 2003

a) Records to be kept by the employer.

The Minimum Wage Order 2007 introduced new obligations for employers under Article 4 (see (2) below:

(1) If an employee qualifies for the minimum wage, his or her employer must keep employee records that are sufficient to establish, in accordance with Regulation 6 of the Employment (Minimum Wage) (Jersey) Regulations 2004, that the employer is paying the employee at a rate that is at least equal to the minimum wage.

(2) The records must show the actual number of hours worked by the employee during each pay reference period (e.g. each week or month) and not just the contractual hours worked.

(3) The records must be in a form that enables the necessary information about the employee in respect of a pay reference period to be produced in a single document.

(4) The necessary records must be kept by the employer for a period of 10 years beginning with the day on which the pay reference period specified in paragraph (5) ends.

(5) The pay reference period to which this paragraph refers is the one immediately following the pay reference period to which the records relate.

(6) The records may be kept by means of a computer.

b)   Employee’s right to be represented

The States has approved a new Part 7A of the Law – “Disciplinary and Grievance Procedures”. It is expected that Privy Council approval will be given in the next couple of months and that the amendment will come into effect in September 2007. As a result, the Code of Practice on Disciplinary and Grievance Procedures will be amended accordingly.

About the right

An employee is entitled to be represented at a disciplinary or grievance hearing by any one of the following:

1. A fellow employee who is employed by the same employer

2. An employed trade union official (who may or may not be an official of a union that is recognised by the employer, but the union must be registered under the Employment Relations Law),

3. A trade union official who is not employed by a union, but whom the union has reasonably certified in writing as having experience of, or having received training in, acting as an employee’s companion at disciplinary or grievance hearings.

A 'disciplinary hearing' is one which could result in a formal written warning or some other formal disciplinary action being taken against the employee (or the confirmation of such a warning or action).

A 'grievance hearing' is one concerning an employee’s complaint about the performance of a duty owed to them by their employer (i.e. a statutory, contractual or common-law duty).

If the representative cannot attend at the time proposed by the employer, the employee may propose a reasonable alternative time for the hearing within 5 working days of that proposed by the employer. Where the representative is a fellow employee, he is entitled to a reasonable amount of paid time off to prepare and attend the hearing.

A representative must be allowed:

• to put the employee's case;

• to sum up that case;

• to respond on the employee's behalf to any view expressed at the hearing;

• to confer with the employee during the hearing,

Representatives are not allowed:

• to answer questions on behalf of the employee;

• to address the hearing against the employee's wishes;

• to obstruct the employer or any other person from explaining or contributing

 to their case.

Enforcement

The new rights provided in Part 7A are enforced via a new Article 78B, Paragraphs (1) to (3) of the Employment Law and the existing unfair dismissal provisions of the Employment Law.

An employee has the right not to be subjected to any detriment for exercising or seeking to exercise the right to be represented, or to act as representative to another employee.

If the employer fails to allow (or threatens not to allow) an employee or their representative to act in accordance with the right to representation, the employee may make a complaint to the Employment Tribunal within 8 weeks of the failure or threat (which may be extended in certain circumstances at the discretion of the Tribunal). 

Where the claim is successful, the Tribunal may award compensation of up to 4 weeks' pay and quash any action taken by the employer in respect of the disciplinary or grievance matter (other than dismissal).

An employee who is dismissed for representing (or proposing to represent) another employee, and an employee who is dismissed for asserting the right to be represented in a disciplinary or grievance hearing, are automatically protected against unfair dismissal.

c)  Redundancy and Business Transfers

The public consultation phase is now complete and the Minister, Senator Paul Routier, has issued his comments. The recommendation that the eligibility for statutory redundancy pay would be subject to a minimum number of working hours per week (8) will not be taken up, nor will the age cap of 65. In both cases, the reason is the impending Discrimination Law, as the 8 hours per week minimum could result in indirect sex discrimination and the 65 age cap would be age discrimination. As a result, the Employment Law 2003 is to be reviewed with a view to remove potentially discriminatory provisions.

The law draftsmen are now working on both issues with the intention that they will be introduced as amendments to the Employment (Jersey) Law 2003, rather than independent pieces of legislation.

It is expected that draft amendments will be put to the States in late 2007, early 2008. Once approved by the States, there remains the need to obtain Privy Council approval prior to the redundancy and business transfer amendments becoming law, probably in late 2008.

d)  Maternity and Family Friendly legislation

A comprehensive consultation document has been circulated by the Employment Forum. This is an important piece of legislation, dealing with maternity, paternity and adoption rights, together with flexible working and rights for carers. It is hoped that there was a good response to the consultation paper from employers, employees, trade unions and employer representative organisations as the eventual amendments to the Employment Law will be very significant.

It is difficult to estimate a timescale for implementation, as a pre-requisite will be the implementation of sex discrimination legislation. Without that, there is potential for women to be discriminated against at the recruitment stage in order to avoid the family friendly rights that these amendments will provide.

You will recall that the Discrimination Law timescale was: Race, July 2007; Sex, July 2008; Disability, July 2009; Age, July 2010. The Chief Minister’s Department has now taken over responsibility for Discrimination Law and has stated that the first stage is now likely to be in force in mid 208 – implying that the remaining phases will also slip by a similar period. Sex Discrimination legislation now seems unlikely until late 2008, with obvious implications for Family Friendly legislation.

2. Minimum Wage 2008

The Social Security Minister has considered and approved the Employment Forum’s latest recommendation for the minimum wage rate of £5.80, which would be implemented on 1 April 2008.

The Employment Forum carried out a review of the minimum wage in October 2006, which recommended that the minimum wage should be increased by a formula in future to allow businesses six months notice of the new rates.

On this occasion, that formula increased the minimum wage by 7.4 per cent - equivalent to the increase in the overall average weekly earnings, as provided by the June 2007 average earnings statistics.

The purpose of the Forum’s latest recommendation is to seek the Social Security Minister’s approval of the minimum wage, trainee rate and offsets resulting from that formula. 

Social Security Minister, Senator Paul Routier, said “I am pleased to announce that I have accepted the Forum’s recommendation of a £5.80 minimum wage as sensible and appropriate for the local economy. Preparations are now underway to amend the relevant legislation, some of which will require States approval.”

The Forum’s full recommendation is available on the States website http://www.gov.je/ChiefMinister/
PublicConsultations/Past+consultations/

The Forum has recommended the following new rates to apply from 1st April 2008.

3. Employment Relations (Jersey) Law 2005

This law, which regulates trade unions and employer associations, was passed in 2005 but has yet to be enacted. It has now received Privy Council approval and the apparent delay in implementation has been due to the fact that the three supporting Codes of Practice have yet to be approved.

The codes have now been released for public consultation and can be found on the Social Security website, They deal with Trade Union Recognition; Resolving Collective Dispute; Balloting and Conduct in Collective Disputes. Points covered include; the need for secret ballots; how an industrial dispute should be resolved; penalties that can be imposed in the event of “unreasonable” actions; “unreasonable” actions to include unofficial industrial action and secondary picketing.

It is expected that the law will be in force in early 2008.