Who Has the Right?
Generally speaking, an employee who works wholly or mainly in Guernsey and who has been continuously employed for at least one year has the right under Guernsey law not to be unfairly dismissed.
There are exceptions to the one year service requirement where dismissal was for an inadmissible reason. These include dismissal on the grounds of pregnancy, sex or marital status, health and safety, trades union related dismissals, assertion of statutory rights and redundancy for an inadmissible reason.
Complaints of unfair dismissal are heard by the Guernsey Employment and Discrimination Tribunal.
What Constitutes a Dismissal?
There are three ways in which a dismissal may take place:
- Where the contract of employment is terminated by the employer with or without notice
- Where a fixed term contract expires without being renewed
- Where the employee is forced to resign with or without notice by reason of the employer’s conduct
It is for the employee who presents a complaint of unfair dismissal to the Tribunal to prove that they were dismissed.
Statutory Fair Reasons for Dismissal?
Once an employee has established that a dismissal has taken place, it is for the employer to show what the reason for dismissal was and that it was one of the five potentially fair reasons laid down by the law.
The five potentially fair reasons are:
- Capability or qualifications of the employee
- Statutory restriction (e.g. a lorry driver losing their HGV licence)
- Some other substantial reason justifying dismissal (such as a business reorganisation or breakdown in the employment relationship)
A dismissal for a reason which falls outside the five statutory fair reasons will be unfair.
The Question of Fairness
Even if an employer dismisses an employee for a reason which is potentially fair under the law, an employee may still succeed in a claim for unfair dismissal on the basis that the employer failed to act reasonably in treating the reason as a sufficient ground for dismissal. The question of fairness will be determined by the Tribunal. In considering the overall fairness of the decision, the Tribunal must have regard to all the circumstances of the case (including the size and administrative resources of the employer’s undertaking).
Broadly speaking, there are two stages in the process of determining whether or not a dismissal was fair. The first stage involves the Tribunal determining whether the employer went through a proper procedure before taking action against the employee, for example, in a case of alleged misconduct, were adequate warnings given (if appropriate), was there a full investigation, a duly constituted disciplinary hearing, a right of appeal and so forth?
The second stage involves the Tribunal considering (amongst other matters) any mitigating circumstances and whether the employer’s treatment of the employee was consistent with its treatment of other employees.
If a Tribunal finds in favour of the employee, the only remedy available is a cash award. There is no right to reinstatement or re-engagement under Guernsey law.
The award for unfair dismissal is a maximum of six months’ gross pay, where “pay” is defined to include any pecuniary benefits paid to the employee in cash under their employment contract. Further information on unfair dismissal and disciplinary procedures in Guernsey is available on the States of Guernsey Employment Relations Service website: www.gov.gg/employmentrelations