01 May 2009

An Employer’s Principal Obligations under Guernsey Employment Law

It is imperative that employers and prospective employers are aware of their obligations under Guernsey legislation. This article focuses on the principal requirements faced by employers when taking on and when dismissing employees.

1. Taking on Employees

Right to Work Document

Under the Right to Work (Limitation and Proof) Law, 1990, every person who is in employment in Guernsey must hold a valid Right to Work document.

Employers must also keep records for all members of staff which should also be retained for a minimum of 3 years after the employment ends. Employee information that should be kept on record includes;

  • job title;
  • place of work;
  • date of birth;
  • date employment started;
  • Right to Work document reference number;
  • Right to Work document expiry date, if any.

An employee who is required to, but who does not possess a Right to Work document is committing an offence. His employer also commits an offence for allowing the situation to arise unless he can show that he has taken all reasonable precautions to avoid the offence. If convicted, both employee and employer are punishable by way of a fine or imprisonment or both.

Written Statement of Terms and Conditions of Employment

Pursuant to the Conditions of Employment (Guernsey) Law, 1985 an employer is obliged to provide a written statement of terms and conditions of employment to all new employees working 15 hours per week or more. The terms and conditions may be incorporated into the contract of employment but a copy of the contract must then be given to the employee. However presented to the employee, the statement must be provided within 4 weeks of the employee starting work.

The statement must include;

  • job title;
  • the date of commencement of employment;
  • details of pay (including methods of calculating pay, for instance overtime rates etc.);
  • when payment is made (eg weekly or monthly);
  • hours of work
  • holiday entitlement;
  • entitlement to maternity leave, if any (if no such entitlement this must be stated also);
  • pension entitlement, if any (again, if there is such entitlement this must be stated also).

If the statement itself does not contain this information it may refer the employee to some other reasonably accessible document (such as an employee handbook) which does.

Employers must inform employees of any change in their terms and conditions within 4 weeks of the change.

2. Conditions of Employment (Guernsey) Law, 1985

With effect from October 2012 all employees in Guernsey must be provided with written terms and conditions of employment within four weeks of commencing employment. This is regardless of how many hours the employee works.

An employer who fails to provide a written statement of terms and conditions of employment or who fails to provide adequate terms and conditions is liable, on summary conviction, to a fine of up to £5,000.

3. Dismissing Employees

The Employment Protection (Guernsey) Law, 1998 confers certain rights on and protection for employees in respect of dismissal. The rights which employees are entitled to are:

(a)   The right to a minimum notice period Length of Employment Minimum Notice Years of Continuous Service

Length of employment

Years of continuous service

Minimum Notice
between one month and two years One week
between two and five years Two weeks

five years or more

Four weeks

 

 

 

 

 

 

Where an employee’s contractual notice period differs from their statutory entitlement, the longer notice period will prevail.

The introduction of the minimum notice periods does not affect the right of either employer or employee to terminate the contact without notice by reason of the conduct of the other.

Unjustified failure by the employer or employee to give the required statutory notice period amounts to breach of contract and either party may sue the other for damages.

(b) The right to receive a written statement of reasons for dismissal

An employee who is dismissed and who has been continuously employed for one year as at the date of termination is entitled, on request, to a written statement of reasons for his/her dismissal. The employer must provide this written statement giving particulars of the reasons for dismissal within seven days of such a request.

It should be noted that in certain circumstances, such as where a female employee is dismissed during pregnancy, the requirement for one year’s continuous service is waived. Such an employee will be entitled to a written statement whether or not she has completed one year’s service.

If an employer does not provide a written statement within seven days of a request and has no fair reason for not doing so, they may be required to pay the employee a sum equal to half a month’s pay (where the employee is paid monthly) or two weeks’ pay (where the employee is paid weekly).

“Pay” for these purposes includes overtime rates, shift pay, holiday pay and other benefits paid to the employee in cash, and is gross with no deduction for tax or social insurance contributions.

(c) The right not to be unfairly dismissed

An employee who has been continuously employed for at least one year has the right not to be unfairly dismissed. Once it has been established that a dismissal (actual or constructive) has in fact taken place, it must then be determined whether the dismissal was fair or unfair.

If an employer can demonstrate that one of five fair reasons was behind the dismissal they should be able to avoid an unfair dismissal claim. The five fair reasons are;

(a) the lack of capability or qualifications of the employee for performing the work of the kind he was employed to do;

(b) the conduct of the employee;

(c) redundancy;

(d) if the employee could not continue to work in the position which he held without contravention of a restriction or a duty imposed by statute; or

(e) some other substantial reason such as to justify dismissal.

A set of facts justifying dismissal, properly handled, should lead to an employee’s claim for unfair dismissal failing. Those same facts improperly handled could lead to a finding of unfair dismissal and so to a liability to pay compensation to the dismissed employee.

It should be noted that certain dismissals, such as dismissals in connection with trade union activities are automatically unfair. Employees who are dismissed for automatically unfair reasons do not need to have one years' continuous service before they can claim.

Employers should seek in every case to follow a fair procedure and act reasonably in treating a particular reason as sufficient for dismissal. To minimise the possibility of a successful complaint of unfair dismissal, employers should be aware of the guidelines set out by the Commerce and Employment Department and legal advice should always be sought before carrying out dismissals.

4. Wrongful Dismissal

An employee who is dismissed may also have a claim for damages for wrongful dismissal in the Royal Court. The basis of a claim for wrongful dismissal is the employer’s breach of the employment contract.

Again it is always recommended that legal advice be sought if a claim for unfair or wrongful dismissal is anticipated.

5. Minimum Wage

Minimum wage legislation came into effect in Guernsey on 1 October 2010.

Employers are now obliged to pay workers/employees a statutory minimum hourly wage. The rates are expected to be reviewed periodically following consultation with various employers and employee groups.

Among other things the law;

  • imposes a duty on employers to keep accurate records to show that employees are being paid in accordance with the Minimum Wage Law; and
  • bestows a right of access of records on employees.

Complaints relating to minimum wage can be presented to the Employment Tribunal under the Employment Protection (Guernsey) Law, 1998. If a worker who qualifies for minimum wage is paid less than this he/she will be entitled to repayment by the employer of the difference.

In September 2012 the States of Guernsey agreed to increase the adult rated by 15 pence to £6.30 an hour from 1 October 2012 and drop the relevant age from 19 to 18. A 14 pence rise to £4.50 an hour was also agreed for employees aged 16 – 17. Offsets (e.g. accommodation and food allowances) have not changed.

The Carey Olsen Employment team is happy to advise in respect of the above or any employment related issues that may arise. Please feel free to contact any member of our team.

Please note that this briefing is only intended to provide a very general overview of the matters to which it relates. It is not intended as legal advice and should not be relied on as such.

© Carey Olsen 2013

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