Jersey: Underneath The Radar

As an Advocate, one of my core obligations is to stay 'up to speed' with changes in the law so that I can properly assist my clients and, on occasion, the Court.

It is perhaps surprising that it was not until May 2013 that our Law Society's Code of Conduct was amended so that members must prove that they undertake at least 15 hours of continuing professional development (conferences and private study) each year.

This requirement is modest. Clients understandably expect that we keep up to date with changes in the law that might affect them and their businesses. However, some changes are more obvious than others and a long anticipated change might have little practical impact. At other times, what at first appears to be a modest tweak of a regulation, or an innocuous decision of our Courts, can have unexpected results.

It is our job to be alert to these changes and to always attempt to assess their likely impact on our clients and their businesses. Here are a few examples of some changes that might be relevant to you or to your business.

The Financial Services Ombudsman

The introduction of a Financial Services Ombudsman ("FSO") for Jersey and Guernsey was "in the pipeline" when I first came to the Island in 2007, but it is now imminent. The doors of the office of the FSO will open on 16 November 2015 and the laws establishing the FSO's jurisdiction are already in place.

The FSO is empowered to investigate complaints made by individuals, charities and small businesses from anywhere in the world against Jersey-based providers of financial services. There are some important exemptions. For example, the FSO will not investigate complaints against Jersey trust company businesses unless the complaint relates to types of business, such as certain pension and funds business.

Although the FSO will not be investigating complaints before 16 November 2015, a complainant can notify the FSO of a complaint now, and a complaint might relate to conduct that goes back as far as 1 January 2010.

Complaints must be brought within 6 years of the conduct complained of, or if the complaint relates to something that occurred more than 6 years ago, within 2 years of when the complainant should have known that they had cause to complain.

When determining a complaint, the FSO will be able to award damages of up to £150,000 to a complainant, which will bind the financial services provider if the complainant accepts the determination. Awards of compensation can be made for both financial losses and for distress caused to the complainant by the actions of a financial services provider, such as a complaint about how a complaint has been handled. Awards of compensation are funded by levies on the financial services industry.

The FSO can also award costs and it is notable that costs can only be awarded against a financial services provider in favour of either the complainant, or the office of the Financial Services Ombudsman itself.

It is difficult to know how many complaints the FSO will be required to investigate when the office opens in November. It is likely that the FSO will attempt to resolve complaints, wherever possible, by mediation. When the FSO's first contested determination is published, it is sure to be widely read by the legal community.

Amendments to the Employment Law

In contrast to the creation of an Office of the FSO, amendments to Jersey's Employment Law appear with less fanfare.

For example, on 1 January 2015 the minimum period that an employee must be employed in Jersey before they can make a claim to the Jersey Employment and Discrimination Tribunal ("JEDT") was doubled from 26 weeks to 52 weeks.

The publication of the JEDT's annual report for 2015 should provide us with an indication of the impact of this amendment. The JEDT's annual report for 2014 shows that 30 complaints were brought to the JEDT in 2014 by people that had been employed for less than 26 weeks. There were 173 complaints in total but not all of these complaints would have been about unfair dismissal. The largest proportion of complaints to the JEDT are brought by people employed for more than 5 years.

A little publicised amendment to Jersey's Employment Law was made on the 1st of September this year that might have a more far-reaching impact.

Article 57 of the Employment (Jersey) Law 2003 sets out how an employee's 'qualifying period' of employment is calculated. In recent years in Jersey there has been a notable shift towards 'zero hours' contracts of employment. There can be many reasons for adopting a zero hours contract model. However, one advantage of a zero hours contract for employers has always been that an employee that is not contracted to work for 8 hours or more weekly could not claim unfair dismissal, even though the employee might have worked much more than 8 hours per week for a long period.

On 1 September 2015 the requirement that an employee must have a contract to work more than 8 hours per week was removed. Employers that adopted, or might have been tempted to adopt a zero hours contract model in part by this exception may now wish to reconsider their employment contracts and documentation.

Fogarty v St. Martin's College Limited

What we think we know about the law can also change because of interesting judgments. Until earlier this year, my advice to a purchaser of Jersey property would have been to be extremely cautious to establish their boundaries. In the past, when mistakes have been made, a person with buildings that encroach on their neighbour's land has been at the mercy of their neighbour. Where a neighbour insisted upon it, the offending structure had to be demolished because no amount of compensation was thought to be an adequate remedy for the infringement of property rights.

On 10 April 2015 a judgment of Jersey's Bailiff was published that might signify a substantial departure from this approach. In this case, although the Plaintiff established that their neighbour's wall encroached onto their property, the Court determined that where justice requires, the Court may choose to award compensation for an encroachment rather than to order demolition.

My advice remains that it is far better to be very, very pedantic when establishing boundaries. However, this case is a very good example of how the law (or at least what we think we know about the law) evolves and of the importance of keeping up to date.

Originally published by Jersey's Connect magazine.

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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