Jersey: Employment Law Updater - May 2016

The existing Discrimination (Jersey) Law 2013 currently prohibits discrimination on grounds of sex, sexual orientation, gender reassignment, race and pregnancy and maternity.

DISCRIMINATION (AGE) (JERSEY) REGULATIONS 2016

On 24 May 2016, the States of Jersey approved the Discrimination (Age) (Jersey) Regulations 2016 (the Regulations).  The Regulations will introduce age as a further protected characteristic, making it unlawful to discriminate on grounds of age

Age is very different to the previous protected characteristics in that it permits direct discrimination in limited circumstances – where an employer can show his or her treatment of a person to be a proportionate means of achieving a legitimate aim.

The Regulations will come into force on 1 September 2016.  The key changes that they introduce are:

  • Retirement age: For a period of 2 years until September 2018 (the Transitional Period), employers will be able to require employees to retire at the States pensionable age (currently 65) without having to show any justification.  So called "forced" retirement at a retirement age which is less than the States pensionable age will be direct age discrimination unless objectively justified.  Following the Transitional Period "forced" retirement at any age will amount to direct discrimination unless the employer can show it is a proportionate means of achieving a legitimate aim.  For the purposes of Transitional Period, pensionable age will be 65.  
  • Unfair dismissal: During the Transitional Period, the upper age limit that applies to claims for unfair dismissal will still apply.  As a result, employees will be precluded from claiming unfair dismissal in the following circumstances:

    • Where the employer has a normal retirement age ("NRA") for men and women that is higher than 65, when employees have reached the NRA.
    • Where the employer has different NRA for men and women and the higher of the NRAs is greater than 65, when employees have reached the higher NRA.
    • Otherwise, when employees have reached 65.

Once the Transitional Period has expired, "retirement" will become a potentially fair reason for dismissal.

  • Exceptions: The Regulations contain a number of exceptions.  For instance, age discrimination will not be prohibited in education, premises and the provision of goods, facility and services to those under 18. There are also certain carve outs for the provision of pensions, employment benefits and redundancy payments. In addition, unlike the other protected characteristics, employers will be able to objectively justify an act of direct discrimination as a proportionate means of achieving a legitimate aim.  

Employers should consider their response to the new Regulations – in particular in relation to retirement.

EMPLOYMENT (AMENDMENT NO.10) (JERSEY) LAW 201-

On 24 May 2016, the States of Jersey also approved the Employment (Amendment No.10) (Jersey) Law 201- (Amendment No. 10).

Amendment No.10 introduces protection for Armed Forces Reservists and a number of other miscellaneous changes.  Its main provisions can be summarised as follows, together with details of when they will come into force:

  • Protection for reservists (in force 1 April 2017): The Jersey Field Squadron is Jersey's contribution to defence.  It currently has around 45 members, but it is anticipated that this will grow to 84 members by 2018. As a result, the following provisions will be introduced to protect the employment rights of reservists:

    • A right to return to the same job or an equivalent job after a period of reserve service
    • A requirement for the reservist to notify the employer of their intention to return to work
    • Protection of the reservists continuous employment
    • Protection against unfair dismissal from Day 1 of employment where dismissal is related to a membership of a reserves force Provision for an employer to fairly dismiss an employee who was contracted to temporarily replace a reservist
  • Compensation for failure to provide certain particulars (in force 1 April 2017): Amendment No.10 gives the Tribunal the power to award compensation of up to 4 weeks' pay where an employer has failed to comply with certain provisions of the Employment (Jersey) Law 2003.  For instance, where the employer has failed to:

    • Provide written terms of employment
    • Provide written pay slips
    • Comply with statutory rest requirements

This will not change the existing arrangements, for example, there will still be capacity for the Law Officers Department to prosecute employees failing to comply with such provisions.  Any fine imposed will be in addition to compensation awarded at the Tribunal.

  • Alignment of qualifying periods for fixed term contracts (in force 1 September 2016): Currently permanent employees accrue unfair dismissal rights after 52 weeks' service provided they were employed on or after 1 January 2015.  By contrast, employees engaged on fixed term contracts of 26 weeks or less will be protected against unfair dismissal if they have completed at least two-thirds of the contract or 13 weeks (whichever is the longer).

A proposal to permit the setting of different levels of minimum wage on the basis of the age of the worker concerned was defeated.

Employers should consider how these new provisions will impact on their business.  In particular, employers will want to ensure that all employment documentation is up to date and compliant with the law prior to April 2017.              

Should you have any queries or if you would like to discuss any of the above, please contact a member of our specialist team.

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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