Introduction
One of the key differences between Jersey employment law and that of the UK or Guernsey is in respect of holiday entitlements - a subject squarely at the top of many HR leaders' agendas as we head into holiday season with Covid-19 travel restrictions changing almost weekly.
A recent case from the Jersey Employment Tribunal focuses on two issues - entitlement to paid bank holidays, and claims for unpaid holidays. In this note we look at the case of Board v Tenby [2021] TRE 030 and the Employment (Jersey) Law 2003 ("EJL").
Holiday Entitlement and Bank Holidays
The Jersey provision for paid leave differs from that in Guernsey and the UK - Guernsey does not have statutory holidays, so holidays are dealt with purely in contracts of employment. In the UK the holiday entitlement is drawn from EU law, which was never applicable in Jersey. Therefore simply modelling UK holiday policies into Jersey does not work.
Employers should make sure holiday terms in contracts or policies are updated to reflect current Jersey law - employers with employees in Guernsey or the UK need to be particularly clear that the contracts and policies are different for the jurisdictions.
Jersey's statutory entitlement under the EJL guarantees a minimum of two weeks' paid leave and paid leave on any public holidays in Jersey where those holidays fall on an employee's ordinary working day (so this year Liberation Day was not a holiday but the Corn Riots will be for the majority of employees).
One Jersey law issue that has not been determined previously is entitlement to paid bank holidays for employees working under a zero hours contract or working variable hours or shifts. The key points are:
- The Tribunal will look at the substance of a contract and not its form. This case involved a zero hours contract but it was operated more like a contract of employment.
- Entitlement to paid bank holidays arises where an employee ordinarily or normally works on that day.
- A shift worker who is not scheduled to work on a bank holiday is not entitled to be paid a day's leave or to have a day in lieu as they are not required to work that day.
This may change, as the judgment seems to invite the States of Jersey to review this issue - the tribunal recognised that its decision might seem harsh, but reflected the express wording of the EJL.
Limitation - how long does an employee have to bring a claim?
The length of time that an employee has to bring a claim is also different in Jersey compared to the UK - and the Board v Tenby decision has also decided a point in a way that is potentially helpful to employers.
Employers will be familiar with the strict time limit for bringing unfair dismissal claims expressly set out under the EJL, ie within 56 days of the termination date, or for discrimination claims, ie within 56 days of the act. Similar time limits apply to a number of other claims including flexible working, statement of main terms, weekly rest periods, or parental leave.
However, the EJL contains no time limits for bringing certain other claims including a claim for holiday pay or a claim for statutory notice pay. The view largely held by practitioners in Jersey was that these were contractual claims, as the employment relationship is one founded on contract. The EJL supplements that contractual relationship but does not replace it. If that was the case then the ordinary limitation period of 10 years would apply.
The Tribunal has taken a different view, holding that a claim for holiday/bank holiday pay is based on a statutory right, and so employees have only 3 years to bring a claim.
The issue was not subject to detailed legal arguments as neither party was legally represented in the hearing, so it is important to flag that it may be subject to challenge down the line. As it stands, however, this is a helpful decision for employers as it limits the exposure to historic holiday and bank holiday claims from 3 years to 10 years.
Conclusion
Employers in the Channel Islands should ensure that contracts and policies reflect the law in their jurisdiction - and where they have employees in more than one jurisdiction, they should take advice on the relevant points.
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.