You may often hear of someone waiting too long to bring a claim
of unfair dismissal and then discovering the window of opportunity
has passed, causing the claim to be "timebarred".
However, you rarely hear about not enough time passing before
you can bring a claim.
Under Article 73(1) of the Employment (Jersey) Law 2003, the
remedy of unfair dismissal is not available1 unless the employee
has been continuously employed for 26 weeks "ending with
the effective date of termination".
This means that, subject to being dismissed for specified
reasons under the Law or being employed under a fixed term contract
for 26 weeks or less, an employee cannot clam unfair dismissal if
they have not been continuously employed for 26 weeks at the time
of the effective date of termination (which takes into account the
statutory minimum notice periods where notice is given).
In a recent case before the Royal Court, the Bailiff was asked
to rule on the Employment Tribunal's decision to strike out a
claim for unfair dismissal on the ground that the former employee
had not been continuously employed for a period of 26 weeks.
The employee said that the probationary period had expired on
31st August and therefore he was not given notice of dismissal
until after the expiry of the probationary period. Accordingly he
was entitled to three months' notice under the contact.
If he had been given three months' notice, his employment
would have terminated on 5th December. He would by then have been
employed for just over 26 weeks and would therefore have been
entitled to bring a claim for unfair dismissal. He argued that it
could not be right to allow an employer to take advantage of his
own breach of contract (by failing to give the required contractual
notice of termination) so as to remove the right that an employee
would otherwise have had to bring a claim for unfair dismissal.
The Court stated that:
As a matter of fact and law, a person is only an employee of
another for as long as a contract of employment between them
subsists. Thus, once the contract has been terminated there is no
longer a relationship between them;
The employee may have a claim for wrongful dismissal if the
employer fails to give the required notice, the employee may sue
for the wages he should have received during the stipulated period
of notice, but this is a claim for damages (the non-payment of
wages) and does not mean that the employee continues to be
It follows that an employee ceases to be employed on the day
that any notice of termination actually expires.
For the former employee to succeed he had to try and find a
provision in the Law that shows his employment terminated at a
later date than the Tribunal determined. A provision does exist
(Article 63(2)), but it relates to the failure to give the
statutory minimum notice period (in which case the employment is
deemed to have terminated at the end of the statutory notice
For example, an employer gives one week's notice of
termination to an employee who has been employed for 20 years (so
the minimum statutory notice required by Article 56(1) is 12
weeks), the Law will, for the purposes of calculating the
continuous period of employment under Article 73(1) deem the
employment only to have terminated 12 weeks after the date of the
notice, rather than one week.
However, Article 63(2) did not assist the former employee
because there was no suggestion that the period of notice given was
less than the statutory minimum. The Court accordingly upheld the
decision of the Tribunal to strike out the former employee's
claim for unfair dismissal as he had not qualified for the
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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