You may often hear of someone waiting too long to bring a claim of unfair dismissal and then discovering the window of opportunity has passed, causing the claim to be “time-barred”.
However, you rarely hear about not enough time passing before you can bring a claim.
Under Article 73(1) of the Employment (Jersey) Law 2003, the remedy of unfair dismissal is not available1 unless the employee has been continuously employed for 26 weeks “ending with the effective date of termination”.
This means that, subject to being dismissed for specified reasons under the Law or being employed under a fixed term contract for 26 weeks or less, an employee cannot clam unfair dismissal if they have not been continuously employed for 26 weeks at the time of the effective date of termination (which takes into account the statutory minimum notice periods where notice is given).
In a recent case before the Royal Court, the Bailiff was asked to rule on the Employment Tribunal’s decision to strike out a claim for unfair dismissal on the ground that the former employee had not been continuously employed for a period of 26 weeks.
The employee said that the probationary period had expired on 31st August and therefore he was not given notice of dismissal until after the expiry of the probationary period. Accordingly he was entitled to three months’ notice under the contact.
If he had been given three months’ notice, his employment would have terminated on 5th December. He would by then have been employed for just over 26 weeks and would therefore have been entitled to bring a claim for unfair dismissal. He argued that it could not be right to allow an employer to take advantage of his own breach of contract (by failing to give the required contractual notice of termination) so as to remove the right that an employee would otherwise have had to bring a claim for unfair dismissal.
The Court stated that:
- As a matter of fact and law, a person is only an employee of another for as long as a contract of employment between them subsists. Thus, once the contract has been terminated there is no longer a relationship between them;
- The employee may have a claim for wrongful dismissal if the employer fails to give the required notice, the employee may sue for the wages he should have received during the stipulated period of notice, but this is a claim for damages (the non-payment of wages) and does not mean that the employee continues to be employed; and
- It follows that an employee ceases to be employed on the day that any notice of termination actually expires.
For the former employee to succeed he had to try and find a provision in the Law that shows his employment terminated at a later date than the Tribunal determined. A provision does exist (Article 63(2)), but it relates to the failure to give the statutory minimum notice period (in which case the employment is deemed to have terminated at the end of the statutory notice period).
For example, an employer gives one week’s notice of termination to an employee who has been employed for 20 years (so the minimum statutory notice required by Article 56(1) is 12 weeks), the Law will, for the purposes of calculating the continuous period of employment under Article 73(1) deem the employment only to have terminated 12 weeks after the date of the notice, rather than one week.
However, Article 63(2) did not assist the former employee because there was no suggestion that the period of notice given was less than the statutory minimum. The Court accordingly upheld the decision of the Tribunal to strike out the former employee’s claim for unfair dismissal as he had not qualified for the remedy.