Recent Changes to Employment Law in Guernsey

Introduction
The 1985 Law
The New Statutory Protections under the 1998 Law
Further Developments

Introduction

On January 4 1999 the Employment Protection (Guernsey) Law, 1998 ('the 1998 Law') was brought into force. Before its introduction, the only significant employment legislation in Guernsey was the Conditions of Employment (Guernsey) Law, 1985, (as amended) ('the 1985 Law'). This newsletter considers the scope of employment legislation in Guernsey in the light of the 1985 and 1998 Laws.

The 1985 Law

The 1985 Law obliges an employer within a specified period after the employment commenced, to give an employee a written statement identifying the parties and the date of commencement of employment, and containing particulars of the terms governing the rate of remuneration, the intervals at which remuneration is paid, and any terms and conditions relating to hours of work, holidays, incapacity and pension. Perhaps, most importantly, in the written statement, the employer must specify the length of notice which the employee is entitled to receive to determine the contract of employment. It is a criminal offence not to provide an employee with a written statement in accordance with the Conditions Law.

An employee with such a written statement has ready proof of the main terms and conditions of his or her employment and will have no difficulty in establishing the terms of his contract in the event of a dispute. The 1985 Law, however, does not go so far as to provide statutory minimum rights, such as a minimum period of notice. The terms and conditions of employment remain entirely a matter of contract between employer and employee. An employee's remedies in the event of the termination of his employment are limited to those available under the general law of contract.

The New Statutory Protections under the 1998 Law

The 1998 Law has introduced minimum periods of notice, the right to be given written particulars of the reason(s) for dismissal and the right not to be dismissed unfairly. Coupled with the 1985 Law, the 1998 Law provides employees in Guernsey with a basic level of protection broadly similar to that existing in the United Kingdom. The new legislation, however, does not go as far as the reforms contained in the English Employment Relations Bill, which is expected to receive Royal Assent later this summer. The most significant measures are as follows.

Statutory Minimum Periods of Notice

Minimum periods of notice are now required to be given by an employer to an employee (and vice versa) to terminate a contract of employment. The maximum statutory period of notice (four weeks) applies only to employees who have been continuously employed by the same employer for a period of five years or more. At the other end of the scale, an employee who has been continuously employed for less than two years is entitled to one week's notice.

There is no equivalent in Guernsey of the UK Transfer of Undertakings (Protection of Employment) Regulations 1981. Accordingly, whenever there is a transfer of employment from one business to another the common law position applies and a contract for personal service may only be assigned with both parties' consent. In practice, this may hamper an employee's ability to build up an entitlement to the maximum statutory notice period.

The requirement of minimum periods of notice is without prejudice to any contractual remedies an employee may have requiring longer notice to be given. Further, the right of either party to treat the contract as terminable without notice in appropriate cases (e.g. gross misconduct) is not affected.

Explanation for Dismissal

An employee who has been employed continuously for more than two years is entitled to receive from his employer, within seven days of requesting it, a written statement giving particulars of the reasons for his dismissal. If an employee makes a complaint against an employer and an adjudicator determines that the employer has unreasonably failed to provide such a written statement or that the reasons given in purported compliance with that obligation are inadequate or untrue, then the employee will be awarded half a month's pay (or two weeks' pay if the employee was paid on a weekly basis). The level of the award is fixed. The adjudicator may not award such lesser sum as he thinks appropriate in all the circumstances.

Unfair Dismissal

An employee who has been in continuous employment for more than two years has the right not to be dismissed unfairly. If the reason for dismissal was pregnancy, involvement in union activity, in relation to a health and safety matter or the assertion of a particular legal right by the employee, the two year qualifying period is disapplied.

A complaint must be made within one month of the termination of the employment to the States of Guernsey Board of Industry. The complaint will be referred to the employer, who is given two weeks to respond. The burden of proof is on the employer to show the reason for the dismissal and that it relates to one of the following:

• the capability or qualifications of the employee in relation to the performance of the work for which they were employed;
  
  
• the conduct of the employee;
  
  
• the employee was redundant;
  
  
• the employee could not continue to work in their position without contravention of a duty or restriction under Guernsey law;
  
  
• some other substantial reason as to justify dismissal.

The question of the fairness of the dismissal will depend on whether in all the circumstances the employer acted reasonably or unreasonably in treating the matter as sufficient reason for dismissal, and is determined in accordance with principles of equity and the substantial merits of the case. UK employment case law may be followed to decide whether a dismissal is unfair, but will not be decisive.

Procedure

The Board of Industry will attempt to settle the complaint by offering free and confidential advice, assistance and a conciliation service, available to both parties. Conciliation is voluntary.
If a period of six weeks has elapsed without the possibility of settlement or conciliation fails or is refused, the claim proceeds to an adjudication hearing. A single adjudicator may make an award or dismiss the complaint.

A mutual exchange of documents, which may be referred to at the hearing, takes place.

At the hearing, witnesses may be called or written statements tendered as evidence. If a witness is not willing to attend, a summons may be issued. Both parties are entitled to make representations and are given reasonable opportunity to respond to representations of the other party.

The adjudicator will not announce a decision at the hearing, but will send a written decision to both parties. If the dismissal is deemed to be unfair, the equivalent of three months' salary (for employees paid on a monthly basis) or one week's pay multiplied by thirteen (for employees paid weekly) will be awarded. The figure will be based on pay rates at the time of dismissal. Again, the amount of the award is fixed.

If the matter proceeds to hearing, each party is responsible for their own costs in preparing and presenting their case. The adjudicator may award costs to either party in certain circumstances. Any award is treated as a civil judgment debt with interest and is recoverable as such.

The adjudicator's decision is final and legally binding. An appeal may only be brought to the Royal Court on a point of law.

Further Developments

The introduction of the 1998 Law marks a substantial increase in the level of protection afforded to Guernsey employees. New anti-discriminatory legislation dealing with sex and racial discrimination is also expected soon. This is likely to offer further protection to employees who are subjected to discrimination in the workplace, as will the introduction of 'Human rights legislation', which is expected within the next few years.

This article is not intended to be a definitive statement regarding recent changes to the employment law in Guernsey, and advice should always be sought in a specific case. For advice, please contact the writer, Andrew Ayres, at Collas Day on e-mail: [email protected], or alternatively write to Andrew at

Collas Day is one of the largest firms of Guernsey advocates. Details of its areas of practice can be found on the firm's website at www.collasday.com


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