LABOR AND EMPLOYMENT DESK BOOK Mourant Ozannes Jersey - Channel Islands CONTACT INFORMATION Helen Ruelle Mourant Ozannes 44.1534.609483 helen.ruelle@mourant.com 1. Do you have a plant closing law in your jurisdiction and if so, what does it require? (For U.S. jurisdictions, please answer: Is there a Baby WARN Act in your state and if so, what does it require?) Jersey does not have specific legislative provisions in respect of plant closing. However, assuming that plant closing will potentially result in genuine redundancies, employers will be expected to comply with established Jersey case law which requires an employer as a minimum: a) to consult with employees; b) to warn employees of redundancy; c) to establish fair selection criteria; and d) to explore alternatives to redundancy Failure to conduct a fair redundancy procedure is likely to amount to a successful claim for unfair dismissal. The States of Jersey has recently adopted new redundancy legislation. The legislation still requires the approval of the Privy Council. However, it is anticipated to be in force during the second half of 2009. Among other matters, the legislation introduces statutory redundancy payments and collective consultation obligations. 2. Are there special rules on releases/waivers in your jurisdiction?
There are special rules in respect of the waiver of statutory claims under the Employment (Jersey) Law 2003 (the "Law"). The waiver of such claims must be done by way of a conciliation agreement through the Jersey Advisory and Conciliation Service or in a compromise agreement which satisfies the relevant conditions of the law, which are that: a) the agreement must be in writing; b) the agreement must relate to the particular proceedings; c) the employee must have received advice from an independent adviser (as defined in the Law) as to the terms and effect of the proposed agreement and, in particular its effect of the employees right to pursue a claim; d) at the time the advice is given, there must be a contract of insurance or indemnity in place covering the risk of a claim by the employee in respect of loss arising in consequence of the advice; e) the agreement must identify the adviser; f) the agreement must state that the conditions regulating compromise agreements under the Law are satisfied. 3. What are the equal employment opportunity/ non-discrimination categories in your jurisdiction (For U.S. jurisdictions, please answer: Are there protected categories beyond Title VII in your state?) Jersey does not currently have any legislation regarding equal opportunities or nondiscrimination. However, such legislation is anticipated in the near future. 4. What are the minimum wage and overtime rules (and exemptions) in your jurisdiction? The current minimum wage is 6.08. A trainee rate may also apply for a maximum period of one year for new employees on accredited training programmes, approved in writing by the Social Security Minister, irrespective of their age. The trainee rate is 4.56. Employers may make certain set-offs from the minimum wage in respect of food and accommodation. The maximum off set for accommodation and food is 88.69. The maximum offset for accommodation only is 66.52. Employees are required to be given certain minimum rest days as follows: a) One uninterrupted rest period of not less than 24 hours in each 7 day period; or if the employer and employee agree, to either: b) Two uninterrupted rest periods each of not less than 24 hours in each 14 day period; or c) One uninterrupted rest period of not less than 48 hours in each such 14 day period. Employees are also entitled to paid leave from work for two weeks per annum plus paid time off on bank or public holidays (or to time off in substitution where they work on such days). Other than these provisions, subject to generally duties of care towards employees and health and safety legislation, there is no prohibition on the number of hours or days in a week which
an employee may work. There is no obligation to pay enhanced rates of pay for overtime. If overtime rates are applicable, they should be included in the employee's statement of employment terms. 5. Is there employment-at-will, or some other rule, in your jurisdiction? What are the exceptions? The concept of employment at will does not exist in Jersey. There are statutory protections in place to protect employees during the course of their employment and on its termination. 6. What are the legal obligations upon terminating an employee in your jurisdiction? Employees in Jersey have the right not to be unfairly dismissed. The Jersey Employment Tribunal (the "Tribunal") has developed its own case law around the interpretation of the basic right. The Law does not contain statutory disciplinary procedures - these are for businesses to develop to show that a fair and proper procedure has been followed in relation to the dismissal. Broadly speaking, unfair dismissal provisions are the same in Jersey to those in the UK in that there are specified reasons for dismissal which may be potentially fair provided that the employer can demonstrate the reason for the dismissal and that it has followed a fair and proper procedure in relation to that dismissal. Failure to demonstrate either one of the specified potentially fair reasons or to follow a fair procedure, will mean that the dismissal is considered by the Tribunal to be unfair. The Law also recognises the concept of automatically unfair dismissal. An employee need only have worked for 26 weeks in order to qualify to bring a claim. The Tribunal may make a fixed award based on length of service and salary up to a maximum of 26 weeks' salary once an employee has completed more than 5 years' service, with no financial cap. The Tribunal does not, at present, have the ability to reduce that award. However, this position is expected to change during the course of 2009. There are specific and unique provisions relating to the expiry of fixed term contracts and the ability of employees on fixed term contracts to make claims for unfair dismissal. Jersey requires minimum periods of notice to be given on termination of employment. Employees are entitled to either their contractual or statutory notice period, whichever is the greater. Currently the maximum period of notice for employees who have been employed for 15 years or more is 16 weeks' notice. However these periods will change later this year to bring them into line with the UK's minimum notice periods. 7. Are there any family and/or medical leave laws in your jurisdiction, and if so, what do they require? (For U.S. jurisdictions, please answer: Are there family and/or medical leave laws in your state beyond FMLA and if so, what do they require?)
Jersey does not currently have any legislation in respect of these matters. Any such matters will usually be agreed between the parties in the contract of employment. 8. Please list any miscellaneous, interesting or oddball laws in your jurisdiction, and state under what circumstances they pertain. There are a number of pieces of legislation in Jersey governing employment related matters including, but not limited to, those relating to employers' liability insurance; the registration of trade unions and regulation of undertakings. Regulation of undertakings legislation is of paramount importance as it provides that an undertaking cannot carry on business in Jersey or take on employees unless it has obtained the requisite licence. If a licence is granted, it will stipulate how many employees a business can take on and the number of those employees that must be locally qualified individuals in terms of residence. If any additional employees are required, a revised licence will usually need to be applied for. Applying for a licence is generally straightforward and provided that the regulatory body is satisfied that the undertaking will positively contribute towards the economic and social climate in Jersey, a licence will usually be granted. 9. Does your jurisdiction have a law requiring employers to give employees access to, or a copy of, their personnel records? The Data Protection (Jersey) Law 2005 gives employees a general right of access to the personal data which relates to them. Employees are entitled to make a data subject access request in writing to their employer. An employer must respond to a data subject access request within 40 days. The legislation is very similar to that in the UK and therefore, broadly speaking, employees in Jersey would have the same rights as those in the UK. 10. Does your jurisdiction outlaw or restrict drug tests, alcohol tests, genetic tests or any other kind of testing? There is no legislation in Jersey restricting such tests. However, such tests should only be undertaken where an employer has reserved the right to do so and/or the employee has consented. 11. Does your jurisdiction have any special rules on the payment of sales commissions? No. 12. What are the basic rules on enforcing non-competes and related agreements in your jurisdiction? No statutory provisions regulate the application of non-compete clauses in Jersey. However, case law recognises the validity of non-compete clauses provided that the clause is essential to protect the company's legitimate interests, applies for a specific period of time and does not prevent the employee from earning a living within his area of expertise.
The courts usually aim to strike a balance between the employer's interests, and allowing the employee the freedom to work where he chooses and to take advantage of his own professional skills and knowledge. The enforceability of any restrictive covenant will depend entirely upon the drafting of the provision itself and the individual circumstances of the case.