Jersey Employment and Discrimination Tribunal

Transcription

1 Jersey Employment and Discrimination Tribunal Making a complaint under Part 5A of the Employment (Jersey) Law 2003: Ante-Natal, Maternity, Adoption and Parental Leave Please read this leaflet if you are considering making a complaint to the Jersey Employment and Discrimination Tribunal (the Tribunal) about a breach of the rights contained in the Part 5A Employment (Jersey) Law 2003 ( the Law ) concerning the right to paid leave to attend ante-natal appointments or to receive maternity, adoption or parental leave. It gives information about what you must do before you make a complaint and gives guidance on completing the correct form and sending it to the Tribunal office. For the sake of convenience in this leaflet he includes she and his includes her. You must use the application form JET1-FF to make a complaint concerning your rights under Part 5A of the Law. However if you are also have other complaints about your employment, for example, that you are due outstanding wages, you must complete form JET1. Please note that a copy of your application form will be sent to the person or organisation against whom the complaint is made (the Respondent). We will also send a copy to the Jersey Advisory and Conciliation Service (JACS) unless both parties tell us not to do so. You should be aware that should the Respondent request the involvement of JACS in the dispute, a copy of the application form will be sent to that service even if you have requested otherwise. 1 Making a Complaint/Emp/2015/JET1-FF

2 What the Tribunal does. The Tribunal hears complaints about matters arising under the Employment Law and also the Discrimination (Jersey) Law The Tribunal is like a court but it is not as formal, for example, nobody wears a wig or gown. However, like a court it must act independently and cannot give legal advice. Almost all hearings are open to the public. Further information. The Tribunal staff can answer general enquiries, give information about Tribunal publications and explain how the Tribunal system works. They may be able to help you complete the form but they cannot give legal advice, such as advising you whether your complaint is likely to be successful. You should forward your completed application form to: The Registrar Either by post or personal delivery to: The Jersey Employment and Discrimination Tribunal 1st Floor Trinity House Bath Street St Helier JE2 4ST Or by to: registrartribunalservice@gov.je Or by fax to: (01534) Website: Telephone: (01534) The office is open to the public between 9.30 am and 4.00 pm each day. 2 Making a Complaint/Emp/2015/JET1-FF

3 Further help and advice. You do not need to be represented by a lawyer or any other party to appear before the Tribunal. If you are not sure that your complaint is one that the Tribunal can deal with you can get help and advice from: the Jersey Advisory and Conciliation Service (JACS) on Their website is: your trade union, staff or professional association, if you are a member; the Citizens Advice Bureau (CAB). Telephone: or Freephone: Their website is: Lawyers and other professional advisers may be able to help you prepare your case. Please note: the Jersey legal aid scheme does not pay for employment or discrimination law advice or representation. You do not have to take advice before you make a complaint to the Tribunal. However, you may feel it is helpful to do so. It may be useful to look at previous decisions of the Tribunal in cases similar to yours at Information needed before a complaint can be accepted. Your complaint cannot be accepted unless it meets certain conditions. For example, it cannot be accepted if you have not filled in one or more sections on the application form where information is required. Certain provisions in the Employment Law may also prohibit your complaint from being accepted, for example, if it is out of time. How soon must I make my complaint to the Tribunal? Certain complaints, including those of unfair dismissal, claims for redundancy payments and for ante-natal, maternity, adoption and parental leave, must be made to the Tribunal within very strict time limits. This date is important and you may wish to contact the Registrar to the Tribunal, JACS or CAB to verify the date if you have any doubts. 3 Making a Complaint/Emp/2015/JET1-FF

4 If your complaint is received outside the time limit, the Tribunal will probably not be able to consider it unless there are exceptional reasons for the delay. For example, you may have been in hospital for the period when you should have made your complaint. Filing your complaint. You may file your completed application form with the Tribunal office in any of the ways described at page 2. You should keep a copy of your application form for your records. It is your responsibility to ensure that the Tribunal office receives your complaint within the relevant time limit. If you or fax your form to us do not post a copy to us. There are no fees payable to the Tribunal on filing your complaint or in relation to hearing your complaint. What happens when I send in my application form? If your complaint is prohibited under the Employment Law or if you have not given all the necessary information we will return your form to you with a letter telling you the reason why your complaint has not been accepted and what action you should take. When your complaint is accepted we will send a copy of it to the Respondent together with a form for their response (JET2). The Respondent will be required to file its response within the next 21 days. Conciliation and Mediation. Unless both parties expressly specify otherwise JACS will be provided with a copy of the application form and the response form. Both the Applicant and the Respondent/s can use the services of JACS until the matter is resolved. The Tribunal proceedings will continue to be processed and a hearing date will be fixed whilst the conciliation process takes place. JACS will always endeavour to reach an agreed settlement between the parties. There is no time limit placed on the process and JACS do not charge for this service. If you do not reach a settlement, the complaint will be heard by the Tribunal at a scheduled hearing. 4 Making a Complaint/Emp/2015/JET1-FF

5 What happens while I am waiting for the case to be heard. Once we have received your response there may be some issues which need to be dealt with before the complaint can be decided. For example, the disclosure of documents by the other party may be required or information in relation to the claim may need to be clarified. In order to get the case ready for a full hearing a Case Management Meeting will be held at an early stage. Case Management Meetings will be conducted by the case Chairman on her own and you and the Applicant will be invited to take part. At a Case Management Meeting the case Chairman will give Directions or Orders on issues and other matters relating to the case, which you must follow. The Tribunal may also hold an Interim Hearing to decide upon any preliminary issues of law relevant to the complaint which must be decided before the full hearing can take place. The Tribunal will issue a Decision following an Interim Hearing which will have a bearing upon the future conduct of the case. The case Chairman may also issue Directions and Orders at an Interim Hearing. It is possible that more than one Case Management Meeting and/or Interim Hearing will be held before the full hearing of a complaint. A Tribunal Chairman may also issue written Directions and Orders concerning the due conduct of a case without convening a Case Management Meeting based upon the written representations of the parties. These Meetings and Hearings will be conducted even if conciliation of the claim is still on-going. When will the complaint be heard? We will write to you and the Respondent/s to tell you when the hearing will take place. With this letter, we will send you a leaflet called, A User s Guide which will help you prepare. Correspondence. We will allocate a case number and this should be quoted every time you contact us. 5 Making a Complaint/Emp/2015/JET1-FF

6 We will send a copy of your application form and any other documents or letters you send us to the Respondent, if appropriate. We will send you copies of all the documents the Respondent sends to us, if appropriate. We will send you and the Respondent/s any decision the Tribunal makes. You must let us know immediately if your contact details change. If you have a representative (a person you ask to act on your behalf), we will send all correspondence about your case to them and not to you. And, you must pass any further requests for information through them and not straight to us. It is your representative s responsibility to keep you informed. Do I have to pay the Respondent s costs? No. The Tribunal does not make Orders for costs: each party must bear their own costs. If you receive any threats from the Respondent or their representative regarding payment of their costs or otherwise, you should inform the Registrar straight away. Disability or particular requirements. If you or anyone coming to the Tribunal with you has a disability or a particular need, including the use of an interpreter, you should contact the Registrar immediately to discuss the matter so that suitable arrangements can be made. Please contact us as soon as possible, so we can help you. No charge is made for an interpreter s services. Access to information. You have a right to access certain information held about you. Please put any request in writing to the Registrar at the address given on page 2. Completing Form JET1 We have designed these guidance notes to assist you, however, they do not give a full statement of the law. 6 Making a Complaint/Emp/2015/JET1-FF

7 If you are also completing a form JET1 we have prepared a separate guidance note for your assistance. Make sure you give us all the information required before we can accept your complaint. You may find the instructions below helpful. The numbering below follows that on Form JET1-FF. 1. Your details 1.1 Tick the relevant title to show whether you want to be referred to as Mr, Mrs, Miss, Ms or Mx. If none of these is correct, put your title in the space after Other. 1.2 Give your first name or names Give your surname or family name in CAPITAL letters. 1.4 Give your full address, including house name or number, road, parish and postcode. You do not need to answer 1.6 or 1.7 if you have appointed a representative (see section 12). 1.5 Provide us a phone number including the full dialling code, if relevant, where we can contact you during normal working hours. 1.6 Please provide your address. 2. Employer s details 2.1 Give the name of the person or organisation you are complaining about (the Respondent). 2.2 Give the employer s full address and postcode. 2.3 Set out the employer s address and telephone number here. 2.4 Give the full address and postcode of the place where you worked, or applied to work, if this is different from the employer s address given at 2.2. Please say if you worked from home, as we will treat your home address as your workplace 7 Making a Complaint/Emp/2015/JET1-FF

8 3. Action before making a claim 3.1. Please tick the appropriate box to say whether or not you are, or were, an employee of the employer (or one of them, if there is more than one). In most cases, this should be a straightforward question to answer Please answer this question only if you have said, in answer to question 3.1, that you are not, or were not, an employee of the employer. If you are, or were, so engaged please now go straight to section 4. If you are not, please now go straight to section If you were employed by the employer, please tick the appropriate box to say whether or not your complaint, or part of your complaint, is about a dismissal. 3.4 Please tick the box if you have been issued with a zero hours contract of employment (even if you do not agree that is a zero hours contract). 3.5 Please tell us whether you are also making a complaint concerning your employment on a form JET1 or making a claim under the Discrimination (Jersey) Law Employment details 4.1 If your complaint is against your employer or ex-employer, please indicate if your employment is continuing and then give the date when your employment started and, if it applies, the date when it ended or will end. Use day/month/year format (for example 08/03/1995). If you have had a break in the course of your employment, for example for maternity leave, please state the period of such break and the purpose of it. 4.2 Please give the basic number of hours you work or worked each week do not include overtime even if you work or worked it regularly. 4.3 Give details of your gross weekly pay in the box provided below. If you are unsure please make clear whether the figures stated are for each hour, each week or each month that your work/worked. 5. Contractual Claims Your right to receive ante-natal leave or maternity leave, adoption leave or parental leave may arise under the terms of your contract of employment. 8 Making a Complaint/Emp/2015/JET1-FF

9 Alternatively your contract may be silent on these rights in which case they exist under the provisions of the Employment Law. It is possible that your rights arise from a combination of both sources. If your rights exist under your contract of employment, those rights may be greater than those prescribed by the Employment Law. You should check this point and be clear about the rights afforded to you by your employer before you complete this section of Form JET1-FF. 5.1 You must state here if your contract of employment contains provisions concerning ante-natal care, maternity leave, adoption leave or parental leave whichever is relevant to your claim. 5.2 If your contract of employment includes a clause about the issue you are complaining about, for example the right to time off work as maternity leave, then you must check whether that provision gives you a greater benefit than that set out in the Employment law. State your answer here. 5.3 If you have greater rights under your contract of employment than that afforded by the Employment law, any complaint by you of a breach of those rights is a claim for breach of your contract of employment and must be made on Form JET1 (sections 8 or 10). 5.4 If your contract of employment contains no provisions concerning the issue that you wish to complain about, for example the right to paid time off to attend ante-natal clinics, or the provisions contain the same or lesser rights than those afforded to you by the Employment law, you should complete the relevant sections of Form JET1-FF. 9 Making a Complaint/Emp/2015/JET1-FF

10 6. Leave for Ante-Natal Care You should only complete this section of the form if your complaint is that your employer failed to pay your wages when you attended ante-natal appointments. 6.1 State here the date/s of the ante-natal appointments for which you were not paid in full. 6.2 Provide any other information relevant to your claim here. 7. Maternity Leave 7.1 This section concerns claims of entitlement to compulsory maternity leave. Please state the date that your child was born (section 7.1.1) and give full details of your claim including all relevant dates (section 7.1.2). 7.2 This section concerns claims of entitlement to ordinary maternity leave. You must provide this information: 7.3 The date that your ordinary maternity leave commenced or is expected to commence. 7.4 The period of ordinary maternity leave that you are entitled to take (the Law provides for either a maximum period of 6 weeks or 16 weeks depending on your length of continuous service). 7.5 State here the date that you expect/expected to return to work. 7.6 Provide any other information relevant to your claim here. 8. Adoption Leave This section concerns claims for leave following the adoption of a child. You must provide this information: 8.1 The date on which you gave your employer notice of your intention to take adoption leave. 8.2 The period of adoption leave that you are entitled to take (the Law provides for either a maximum period of 6 weeks or 16 weeks depending on your length of continuous service). 10 Making a Complaint/Emp/2015/JET1-FF

11 8.3 State here the date that you expect/expected to return to work. 8.4 Provide any other information relevant to your claim here. 9. Parental Leave This section concerns breaches of the right to take parental leave following the birth or adoption of a child. You must provide the following information: 9.1 The reason why you are claiming parental leave, in other words, state your relationship with the child or the child s mother or adopter. 9.2 The date or dates of the parental leave that you claimed. 9.3 The date or dates that the parental leave commenced. 9.4 Any other information relevant to your claim. 10. Detrimental Action You should complete this section if you believe that your employer has acted detrimentally towards you because you took or proposed to take action to enforce, or otherwise secure the benefit of, a right under Part 5A of the Law. This is the section of the Law that concerns maternity leave (including time off for ante natal appointments), adoption leave and parental leave. You may not also make a claim for the same alleged breach under form JET Describe here the right that you enforced, sought to enforce or otherwise secure the benefit of. Include all relevant dates Here, briefly describe the subsequent act, or deliberate failure to act, by your employer, and include all date/s Use this space to give any other information relevant to your claim. 11. Other information Please do not send a covering letter with your application form. You should give us any extra information that you want to tell us on the form, using extra sheets as necessary. If you have any particular needs (for example, because of a disability) please give details here so we can help you. Alternatively, you may want to give an explanation of why your claim is out of time or to let us 11 Making a Complaint/Emp/2015/JET1-FF

12 know that internal grievance or dismissal and disciplinary procedures have not yet been completed. 12. Your representative You only need to complete this section if you have appointed a representative. A person you ask to act on your behalf is known as your representative. We will deal only with your representative if you appoint one we will not deal directly with you. Please do not give the name of a representative unless that person has agreed to act for you. Do not give the name of a person or organisation who is only giving you advice on filling in this form If you know the name of the person representing you, give it here. If you don t know it, leave this section blank Give the full name of the representative s organisation (for example, your trade union, firm of lawyers or the Citizens Advice Bureau) Give the full address and postcode of the representative s organisation Give the representative s phone number including the full dialling code and address (12.5) 12.6 Give the reference number your representative has given to your case (if you know it). NOTE: If you are providing information on separate sheets for any of the questions, please identify the question you are answering on the top of each separate sheet and attach them all to the form. NEXT STEPS: 1. Please sign and date the application form and file it in the any of the ways stated on page 2 of this leaflet. 2. If you have appointed a representative he may sign the form for you. 3. Complete the Checklist at the end of the form. 4. Make sure you keep a copy of the application form and any separate sheets you are sending to us. 5. Ensure the application form is being filed within the time limits set by the Law. 12 Making a Complaint/Emp/2015/JET1-FF