Guernsey: Employment Law Updater - July 2015

GUERNSEY

NEW STATUTORY MATERNITY RIGHTS

The States of Guernsey have approved the introduction of statutory maternity and adoption leave. Legislation will now be prepared to give effect to this decision.

Background

Guernsey's States first approved a proposal to introduce statutory maternity and adoption leave in February 2012 and, at the same time, made recommendations about the Social Security Department benefits which should be available to parents to support such leave.

In summary, the States agreed that there should be 2 weeks of compulsory maternity leave. Thereafter, the leave available would depend on how long an employee had worked for her employee, so that employees with less than 15 months' service would get an additional 12 weeks of basic leave and those with more than 15 months' service would have up to 26 weeks of enhanced leave.

This new entitlement to leave would be combined with additional parental benefits over and above the existing maternity allowance which is available to mothers for a flexible 18 week period. However, no decision was made about what would be offered by way of benefits nor how these would be funded. In order to take this point forward, the States directed the Social Security Department to report back with proposals, as part of its wider review of funding for benefits.

Progress since 2012

According to the report which went to the States this week, it will be relatively straightforward to bring in the necessary legislation to introduce the leave entitlement. In contrast, it will not be possible to resolve how benefits will be funded until January 2017 at the earliest. Current projections indicate that the enhanced parental benefits will cost something in the order of an additional £1.9 million per annum (based on 2012 levels) and require an increase in social insurance contributions of up to 0.2%. Against this backdrop, the Social Security Department has indicated it needs a relatively long lead-in period for the implementation of the new parental benefits, partly because of the need to amend existing legislation and partly to enable the necessary IT changes to be made to facilitate payment of benefits.

The States' Decision

Faced with a long lead-in on the funding side, the States were asked to decide whether to proceed with the new right to parental leave even if this meant doing so without any additional parental benefits being put in place, or whether the States should postpone implemental of the new right to parental leave until such times as the new parental benefits were in place. The Policy Council noted that introducing the enhanced leave would at least provide enhanced flexibility for those parents who could afford to take longer leave but who were not presently entitled to do so. In short, they considered it was a step in the right direction.

The Policy Council's recommendation was accepted and legislation will now be prepared to introduce the new statutory parental leave, even although the new benefits will not be in place until 2017 at the earliest.

There will be a transitional period: the intention is that the provisions will not apply in respect of women whose period of maternity or adoption leave has already started when the legislation comes into force. Additionally, the Commerce and Employment Department has indicated that its Employment Relations Team will run seminars during the autumn of 2015 to deliver training and practical guidance to help employers plan and prepare for the legislation. Guernsey's Chamber of Commerce has invited the Employment Relations Team to provide a standard form of policy for parental leave to assist employers; it remains to be seen if this will be provided. However, what has been clarified is that the new rights are not intended to create any additional claims for sex discrimination over and above the existing provisions.

NEW RATES FOR MINIMUM WAGE

New rates have been approved by the States of Guernsey under Guernsey's minimum wage regime. With effect from 1 October 2015 the minimum wage will increase to £6.85 per hour for adults and to £6.10 per hour for young persons. This represents a small increase on the rates applicable from 1 October 2015. However, there is no change to the 2014 rates for the maximum allowances which can be offset against wages for accommodation and food. Thus, where accommodation is provided to employees, the maximum amount remains £64 per week and £92 if both accommodation and food are provided.

CAREY OLSEN ACTS FOR SUCCESSFUL EMPLOYER IN MINIMUM WAGE CASE

Carey Olsen acted in the first claim in Guernsey to decide a key issue affecting employees who 'live in' at their place of work and who may be called on for assistance overnight, for example as nursing carers. The tribunal had to decide if the overnight hours should be taken into account when determining whether or not the employer had complied with Guernsey's minimum wage regime. If the employee's sleeping hours did count as part of the overall hours worked, the employee would not have been paid enough to comply with the minimum wage requirements. Rachel Richardson successfully defended the Respondent, Mr J Waters, in relation to the claim brought by his live in carer, Ms Eva Lange, with the Tribunal finding that only the night time hours where duties were actually performed by Ms Lange being classed as work for the purpose of the minimum wage regime.

POPULATION CONTROL: UPDATE

In June 2013 the States of Guernsey approved a number of recommendations on managing the size and make up of Guernsey's population, with the Policy Council to go back to the States with further detailed recommendations in relation to various matters, including the definition and use of open market properties, the transitional arrangements and the creation of an advisory body to assist with formulation of policies regarding employment permits. An extensive report was produced for this month's States meeting and a detailed article on the report and the ultimate conclusions will follow in a separate newsletter.

JERSEY

REMINDER - 1 SEPTEMBER 2015 - "BIG TUESDAY"

It is no exaggeration to say that 1 September 2015 is a big day for Jersey employment law. The law is being changed in a number of very significant respects – and all the big changes come into force on the same day.

The main changes are as follows:

  1. Discrimination Law Extended
  2. Flexible Working and Family Friendly Rights

DISCRIMINATION LAW

The Discrimination (Jersey) Law 2013 came into force on 1 September 2014.

The Discrimination Law works by prohibiting certain behaviour in relation to those with a certain protected characteristic. The first of the protected characteristics is Race. Discrimination on the grounds of race has been outlawed since the Discrimination Law came into force. With effect from 1 September 2015, further protected characteristics will be added as follows:

  • Sex
  • Sexual orientation
  • Pregnancy & Maternity
  • Gender Reassignment

FLEXIBLE WORKING

Amendment No. 8 to the Employment (Jersey) Law 2003 will introduce a right for employees who have caring responsibilities to request flexible working.

Amendment No. 8 does not create a right to work flexibly or part-time. It simply provides a statutory framework through which an appropriate request must be considered. If the request is to be refused, that refusal must be for one of a specified list of generally business related reasons.

MATERNITY LEAVE/ PAY AND OTHER RIGHTS

As of 1 September 2015, Amendment No. 8 will also introduce statutory maternity leave provisions. Regardless of length of service, all employees who have given birth will be entitled to two weeks' paid leave following the birth of a child ("Compulsory Maternity Leave").

In addition, employees who comply with the notification requirements set out in the Law will be entitled to a further period of unpaid leave, referred to as Ordinary Maternity Leave. The length of Ordinary Maternity Leave will depend on an employee's length of service, ie:

  • Where an employee has less than 15 months' continuous service: 6 weeks' Ordinary Maternity Leave (in addition to Compulsory Maternity Leave); and
  • Where an employee has 15 months' or more continuous service: 16 weeks' Ordinary Maternity Leave (in addition to Compulsory Maternity Leave).

Amendment No. 8 also introduces protections for those returning to work immediately after a period of Compulsory or Ordinary Maternity Leave. Returning individuals will be entitled to return to the job in which they were employed immediately prior to their absence on terms and conditions no less favourable than those that would have applied had they not been absent.

Provision is also made for:

  1. Adoption leave on much the same basis as maternity leave.
  2. The right to paid time off for antenatal appointments.
  3. The introduction of (unpaid) parental leave for up to 2 weeks following the birth of a child.

STARTING POINT GUIDES

You can find the following Starting Point Employment Law Guides on our website:

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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