Employment (Amendment No. 4) (Jersey) Law 200-.

Information about the publication of Ministerial Decisions

A formal published “Ministerial Decision” is required as a record of the decision of a Minister (or an Assistant Minister where they have delegated authority) as they exercise their responsibilities and powers.

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demonstrating that good governance, and clear lines of accountability and authority, are in place around decisions-making – including the reasons and basis on which a decision is made, and the action required to implement a decision
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The Freedom of Information Law (Jersey) Law 2011 is used as a guide when determining what information is be published. While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.

A decision made (19/11/2007) regarding: Employment (Amendment No. 4) (Jersey) Law 200-.

Decision Reference: MD-S-2007-0077
Decision Summary Title :	L:\General Information\Workgroups\Policy\Employment\Ministerial decisions\DS 2008 Tribunal Powers amendments 23Oct07		Date of Decision Summary:	23/10/2007
Decision Summary Author:	Kate Morel, Policy Principal		Decision Summary: Public or Exempt?	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	N/A
Written Report Title :	L:\General Information\Workgroups\Policy\Employment\ \Ministerial decisions\ SD Accomp reports Tribunal powers 6Nov07		Date of Written Report:	25/10/2007
Written Report Author:	Kate Morel		Written Report : Public or Exempt?	Public
Subject: Employment (Amendment No.4) (Jersey) Law 200-
Decision(s): The Minister approved for lodging a draft amendment to the Employment (Jersey) Law 2003, which would extend the power of the Employment Tribunal in unfair dismissal awards.
Reason(s) for Decision: The purpose of the amendment is to extend the Employment Tribunal’s jurisdiction in relation to unfair dismissal claims so that it has the power to reduce an unfair dismissal award where an employee is found to have contributed to their own dismissal (in specified circumstances); and the discretion to consider whether it would be appropriate for an unfairly dismissed employee to be re-employed by their employer (whether reinstatement or re-engagement), and the power to award additional compensation if the employer does not comply with that direction for re-employment.
Resource Implications: There are no financial or manpower implications.
Action required: Submit accompanying report and Human Rights compatibility statement to the Greffe to lodge the Proposition for States debate on 29 January 2007
Signature:		Position:
Date Signed:		Date of Decision (If different from Date Signed):

Employment (Amendment No. 4) (Jersey) Law 200-.

Accompanying Report to the

Employment (Amendment No.4) (Jersey) Law 200-

INTRODUCTION

The purpose of this Proposition is to amend the Employment (Jersey) Law 2003 to extend the Jersey Employment Tribunal’s (“the Tribunal”) jurisdiction in relation to unfair dismissal claims in two ways. It provides the Tribunal with:

The power to reduce an unfair dismissal award where an employee is found to have contributed to their own dismissal (in specified circumstances); and

The discretion to consider whether it would be appropriate for an unfairly dismissed employee to be re-employed by their employer (whether reinstatement or re-engagement), and the power to award additional compensation if the employer does not comply with a direction for re-employment.

BACKGROUND

The Social Security Minister has received representations from a number of interested parties on the above two issues relating to the powers of the Employment Tribunal in unfair dismissal awards and asked the independent Employment Forum to consider the issues in more detail and make a recommendation. The Forum recommended that the legislation should include the two additional powers; the Minister approved the recommendation in April 2007 and instructed that an amendment should be drafted accordingly.

REDUCTION IN UNFAIR DISMISSAL COMPENSATION

An equivalent provision in a similar small jurisdiction is Article 23 of the Employment Protection (Guernsey) (Amendment) Law, 2005, which provides that the Employment and Discrimination Tribunal may reduce an unfair dismissal award in certain circumstances.

The Guernsey Tribunal may take into account whether an offer of reinstatement has been unreasonably refused, and any other circumstances in which the Tribunal considers that it would be just and equitable to reduce the award of compensation, to whatever extent it sees fit.

In the interests of natural justice, statutory provision has been made for the circumstances in which an award may be reduced in Jersey, which are similar to those in Great Britain, including for example; the employee’s conduct, any other amounts paid to the employee by way of settlement, and the refusal of an offer of reinstatement.

RIGHT TO RE-EMPLOYMENT

Having carefully considered the issue of re-employment in its 2001 recommendation on unfair dismissal, the Forum was then of the opinion that there is nothing to be gained by having such a provision present in Jersey legislation. This was considered to be a sensible approach at that time; it was not intended to restrict the powers of the Tribunal and was recommended in the interests of avoiding unnecessary complexity.

However, following further consideration, the Forum’s recommendation noted that Jersey is a more restricted employment market than the UK, making the option of an award for re-employment more relevant and necessary.

The amendment makes provision for the Tribunal to consider two different options for re-employment as an alternative to financial compensation for dismissal; reinstatement, and the more flexible option of re-engagement;

Where reinstatement is awarded, the employee is to be treated in all respects as though the dismissal had not occurred, with no loss financially, or of seniority.

Where re-engagement is awarded, the employee is to be re-employed but not necessarily in the same job or on the same terms and conditions of employment; however, as far as possible, the terms must be as favourable as if the employee had been reinstated.

In deciding whether or not to make an order for reinstatement or re-engagement, the Tribunal will take into account the employee's wishes; the practicability of the employee returning to work for the employer (or a successor company); and in cases where the employee was partly to blame for the dismissal, whether or not it would be just to make such an order, and if so, on what terms.

Orders for reinstatement or re-engagement may include an award of compensation for any loss of earnings suffered during the period in which the employee was dismissed, and also compensation for any losses if the employer refuses to comply fully with the terms of an order for re-employment.

If there has been a total failure to comply with an order for re-employment, the Tribunal will be able to make an additional award of compensation up to a maximum of 26 weeks’ pay, unless the employer can satisfy the Tribunal that it was not reasonably practicable to comply with the order.

There are no financial or manpower implications arising from this proposition.