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A decision made 1 October 2010 regarding: Employment (Jersey) Law 2003 - amendment of, law drafting instructions.

Decision Reference: MD-S-2010-0060
Decision Summary Title :	DS - Redundancy amendments		Date of Decision Summary:	28 September 2010
Decision Summary Author:	Policy Principal		Decision Summary: Public or Exempt?	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	N/A
Written Report Title :	WR - Redundancy amendments		Date of Written Report:	28 September 2010
Written Report Author:	Policy Principal		Written Report : Public or Exempt?	Public
Subject: Law drafting instructions to amend the Employment (Jersey) Law 2003
Decision(s): The Minister decided to instruct the Law Draftsman’s Office to prepare an amendment to the Employment (Jersey) Law 2003, that would be amended by the Employment (Amendment No. 5) (Jersey) Law 2010 (yet to be enacted).
Reason(s) for Decision: The Minister requests that the Law Draftsman prepares amendments to Articles 60B, 60E, 60F and 60H of the new articles that would be inserted into the Employment (Jersey) Law 2003 by the Employment (Amendment No. 5) (Jersey) Law 2010 (yet to be enacted). The first proposal would amend article 60B so that employees working less than 8 hours per week will qualify for a redundancy payment, in accordance with the Minister’s original intention. The second proposal would amend article 60E so that an employee who is made a reasonable offer of the same, or similar, suitable employment to start within four weeks of dismissal is not entitled to a redundancy payment, in accordance with the Minister’s original intention. The third proposal would amend articles 60F and 60H. The Employment Forum has consulted on the collective consultation procedure and the Minister has considered the Forum’s recommendations. The Minister proposes that the collective consultation requirements would be triggered when an employer proposes 12 or more employees for redundancy in a 30 day capture period; the protective award where an employer fails to consult with union representatives and elected staff representatives would be up to 9 weeks pay; and claim for a protective award would only be taken to the Tribunal by union representatives and elected staff representatives, rather than individuals, other than where representatives have not been appointed in accordance with the law.
Resource Implications: There are no financial implications.
Action required: Policy Principal to submit instructions to the Law Draftsman
Signature:		Position: Minister
Date Signed:		Date of Decision (If different from Date Signed):

Employment (Jersey) Law 2003 - amendment of, law drafting instructions

Law drafting instructions – Amendment to the Employment (Jersey) Law 2003, as amended by the Employment (Amendment No. 5) (Jersey) Law 2010

1. Qualifying period of employment - Article 60B

In its consideration of the draft Employment (Amendment No. 5) (Jersey) Law 2010 prior to transmission to the Privy Council, the Ministry of Justice noted that the Minister's report accompanying the draft law stated 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 report states that this approach was adopted to avoid issues of indirect sex discrimination that might arise if people who work less than 8 hours per week are excluded.

However, the law as drafted provides that a person's period of employment will be computed in accordance with article 57 of the Employment Law which provides that only weeks in which a person works for more than 8 hours will count. A person who works for less than 8 hours per week will therefore not qualify for a redundancy payment.

The Minister had decided that employees should not have to work for 8 hours or more per week in order to be entitled to a redundancy payment and that the 8 hour threshold in other parts of the law (written statement of employment particulars, minimum period of notice on termination of employment, and unfair dismissal protection) would be reviewed at a later date, as sex discrimination legislation drew closer.

The Minister accepts that there will be an interim period following enactment whereby employees working less than 8 hours per week will not qualify for a redundancy payment, however requests that an amendment is drafted, to be progressed as soon as possible.

2. Offer of alternative work - Article 60E

In the course of making some improvements to the draft legislation, two paragraphs were inadvertently removed from the draft law.

(2) Where paragraph (3) is satisfied, the employee is not entitled to a redundancy payment if the employee unreasonably refuses the offer.

(3) This paragraph is satisfied where –

(a) the provisions of the contract as renewed, or of the new contract, as to –

(i) the capacity and place in which the employee would be employed, and

(ii) the other terms and conditions of that employment,

would not differ from the corresponding provisions of the previous contract; or

(b) those provisions of the contract as renewed, or of the new contract, would differ from the corresponding provisions of the previous contract but the offer constitutes an offer of suitable employment in relation to the employee.

The effect is that an employee who is made an offer of the same or similar, suitable employment to start within four weeks of dismissal is free to refuse a reasonable offer of employment and take a redundancy payment. This was not the Minister’s intention.

It was not possible to amend the legislation prior to Privy Council sanction and Royal Court registration. Any amendment (as it is primary law) will require both States and Privy Council approval. This means that there will be a period of time when the required amendment is being progressed and the law will be in force, as drafted.

The Minister accepts that although not an ideal situation, the Jersey Advisory and Conciliation Service will provide explicit advice to employers on how to work within the law as drafted. Essentially, employers will be advised not to get to the stage of terminating employment through redundancy unless the employer is sure that there is no possibility of offering employees the same or a suitable alternative job within four weeks.

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 employees 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 redundant in a 90 day period, or 2 or more unionised employees in a 90 day period.

The amendment redefines collective redundancy; however no consideration was given to the impact on the consultation procedure and penalties as a whole. The Minister therefore directed the Employment Forum to consult on the package of provisions relating to the collective consultation process. The Forum has presented its recommendation to the Minister and the Minister proposes the following amendments;

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.

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.