Accompanying report - Employment (Amendment No. 6) (Jersey) Law 201-
This draft Law would amend the Employment (Jersey) Law, as amended by the Employment (Amendment No. 5) (Jersey) Law 2010 (subject to States approval of the Appointed Day Act).
The amending law address three specific issues relating to redundancy.
1. Qualifying period of employment
The law as drafted provides that an employee's period of employment would be computed in accordance with article 57 of the Employment Law which states that only weeks in which an employee works for more than 8 hours will count. An employee who works for less than 8 hours per week would therefore not qualify for a redundancy payment.
Article 60B is amended so that employees working less than 8 hours per week would qualify for a redundancy payment, in accordance with the Minister’s original intention; that the right to a redundancy payment should apply to employees who have at least 2 years' continuous service, irrespective of the number of hours worked per week. The intention was to avoid issues of indirect sex discrimination that might arise if employees who are contracted to work for less than 8 hours per week are excluded from protection.
2. Offer of alternative work - Article 60E
In the process of making some improvements to the draft legislation, two paragraphs were inadvertently removed from the draft law. The effect is that an employee who is made a reasonable offer of the same or similar, suitable employment to start within four weeks of termination is free to refuse and take a redundancy payment. This was not the Minister’s intention.
Article 60E is amended so that an employee who is made a reasonable offer of the same, or similar, suitable employment to start within four weeks is not entitled to a redundancy payment, in accordance with the Minister’s original intention.
3. Collective Consultation – Article 60F
The draft Employment (Amendment No. 5) (Jersey) Law 2010, as proposed to the States, provided that employers would be required to consult collectively with trade union representatives and elected staff representatives when proposing 21 or more redundancies in a 90 day period. The States however approved an amendment to provide that employers will be required to consult collectively when proposing to make 6 or more non-unionised employees, or 2 or more unionised employees, in a 90 day period.
The Minister directed the Employment Forum to consult on the collective redundancy process in view of the impact of the reduced thresholds and, on the basis of strong consultation responses, the Forum recommended that the threshold should revert to 21 or more proposed redundancies in a capture period of 90 days.
The Minister is convinced that the low number of proposed redundancies, as currently drafted, does not represent a collective redundancy situation. Employers are already required to consult employees individually about redundancies to avoid claims of unfair dismissal and associated penalties. Collective consultation is intended to provide an appropriate method of consultation about issues that will affect a large group of employees, rather than individual issues that would be discussed individually with employees.
The Minister proposes the following amendment;
i. The collective consultation threshold should be set at 12, so that an employer proposing to dismiss as redundant 12 (both unionised and non-unionised) employees within a capture period of 30 days is required to consult with union representatives and/or elected staff representatives. The Minister balanced the Forum’s recommendation against the wishes of the States Assembly and proposes the Forum’s suggested alternative as a pragmatic solution in view of some support from consultation respondents.
The Minister proposes the following amendments, in accordance with the Forum’s recommendations;
ii. The maximum protective award shall not exceed 9 weeks’ pay.
iii. On the basis that the process relates to collective rather than individual issues, a claim for a protective award may only be taken to the Tribunal by union representatives and elected staff representatives, rather than individuals, other than where representatives have not been appointed, but should have been.
Financial and manpower implications
There are no additional financial or manpower implications arising from this proposition. The existing budget for employment relations, which includes the cost of providing the Employment Tribunal and the Jersey Advisory and Conciliation Service, is sufficient for the implementation of this legislation.