You may have seen the recent local media coverage relating to the Report produced by Darren Newman ("Mr Newman"), independent employment law expert in the UK, following his review of the decisions of the Employment Tribunal in Jersey ("the Tribunal") during 2012, which concluded that the Tribunal is fit for purpose.
The Report was commissioned by the Minister for Social Security (Francis Le Gresley), following some criticism of the Tribunal by local employers and some bodies representing them.
Whilst it is appreciated that some Jersey employers may remain sceptical and disagree with some of the conclusions of the Report (which I have set out in full for you below), as an employment lawyer who has regular dealings with the Tribunal, it comes as somewhat of a relief to know that of the various types of dispute that ended up before the Tribunal last year, it was found to have been operating well and without any bias towards employees.
For those interested, please click here to read the full Report.
Being mindful that you may not have the time to read all of it, I suggest that you at least look at the following sections – Introduction, the Terms of Reference for the Report, Outcomes, Matters Identified and Conclusions.
Mr Newman reviewed each of the written decisions of the Tribunal of last year and in the Outcomes section, he stated that these:
- Meet the test of adequacy; the reasons for a party losing a case are usually clear, sometimes overwhelmingly so.
- Are not overly lengthy, formal, legalistic or complex.
- Do not identify adverse impact on any particular sector.
- Suggest nothing in the Tribunal's approach to indicate a general bias towards employers or employees.
- Demonstrate that the Tribunal's approach is consistent (e.g. in dealing with small employers and complaints of unfair dismissal).
- Show a sensible adoption of 'standard directions' for unfair dismissal, providing a useful checklist for employers.
- Demonstrate sensitivity to the particular facts of a case/reasonableness (i.e. differences in decisions are for this reason rather than a lack of consistency).
- Suggest that cases generally involve fundamental failures of employers to observe basic principles of fairness, rather than dealing with minor failures in procedure (e.g. the frequency of on-the-spot dismissals).
- Show that cases were predominantly against small and medium-sized businesses, many of which have no formal human resources function. It may be that larger employers are more likely to agree a settlement.
- Show that, whilst fair procedure is expected, the Tribunal will overlook procedural failings when the basis for dismissal is sound and the employer is a small business (and suggests that the Tribunal is more willing than UK tribunals to overlook such procedural failings).
- Provide no basis for a conclusion that employers are being forced to defend hopeless (frivolous or vexatious) cases. It is possible that vexatious or frivolous complaints are made but are withdrawn or settled before they reach the Tribunal. If that is the case, then it is perhaps evidence that the system works.
- Provide little basis for any complaints that the Tribunal is too formal, expensive, inconsistent and unpredictable.
In the Conclusions section of the Report, Mr Newman stated:
"I believe that this report paints a picture of a Tribunal seeking to do justice between the parties and uphold the standards of fairness provided for in the Jersey Employment Law. It is in the nature of an adversarial system that about half of all litigants feel dissatisfied with the outcome. But looking at the cases objectively I cannot say that I have found any unfair dismissal decision where the outcome was clearly wrong or unfair on the losing party. Critics of employment tribunals often make two complaints. First, they complain that the process has become too formal and expensive – too much like a normal civil court. Second, they complain that Tribunal outcomes are inconsistent or unpredictable. In Jersey there would be very little basis for either complaint. However it is important to understand that there is always a trade-off between legal formality and consistency of outcome. The way to ensure absolute consistency is to apply rigid rules. That is not easy with a test of reasonableness which depends on 'all the circumstances of the case'. No two cases will be entirely alike because there will always be unique circumstances for the Tribunal to take into account.
Despite this flexibility, however, there are clear principles of fairness to be applied in any dismissal situation. Broadly they can be described as clearly explaining the grounds on which dismissal is contemplated, listening to the employee's side of the story, and reaching a considered view, taking into account what the employee has said. While the details of disciplinary procedures will vary, even very small employers should be able to apply those basic principles in some way.
A number of cases in 2012 illustrate that some employers – mostly small, owner-managed businesses - are either unaware of, or prepared to disregard, these fundamental requirements. There were a number of examples of 'on the spot' dismissals or cases where there was no attempt to follow anything approaching a disciplinary procedure. Not all of these cases resulted in a finding of unfair dismissal, but clearly an employer who dismisses an employee in this way is running a serious risk of ending up in the Tribunal. This risk is all the greater if the employer has failed to pay the correct amount to an employee on termination – a situation which arose regularly in the 2012 cases. Perhaps more effort can be targeted at small employers so that they are aware of their legal obligations and the consequences of failing to meet them."
I conclude this article, by setting out a few of my own personal observations and comments which are as follows :
First, when there are only two persons who chair the panels of the side members of the Tribunal, the Chair and the Deputy Chair (although the former Chair of the Tribunal retired part way through 2012), one would expect that there would be a degree of consistency in its approach to matters. Certainly one would expect this to be more likely than not, when compared with the numerous decisions produced by all of the variously constituted panels of the Employment Tribunals throughout England, Wales and Scotland. In one sense, consistency is a good thing as it may mean that it is easier for any party who appear before it to be able to predict the stance or outcome, although to some extent, this is never possible as each case is fact sensitive and inherently there is always some element of risk associated with any form of litigation.
In respect of the second point in the "Matters Identified" section of the Report, although no reduction of an unfair dismissal award was made in any case by the Tribunal in 2012 pursuant specifically to Article 77F(10) of the Employment (Jersey) Law 2003, two points occur to me – first, there has been at least one decision of the Tribunal in 2013 where a deduction pursuant to Article 77F(10) has occurred and so the Tribunal does utilise this provision when deemed appropriate, and secondly, there were at least four decisions during 2012 where the Tribunal did make a reduction to an award for unfair dismissal pursuant to other sub-sections of Article 77F of the Law.
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.