it was some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (An employee's “position” is defined as meaning “the following matters taken as a whole – (a) his status as an employee, (b) the nature of his work and (c) his terms and conditions of employment”. ) If the employer cannot show a reason for the dismissal, or if that reason does not fall within the above list, then the tribunal must find the dismissal unfair.
From 1 October 2002, the end of a task contract that expires when a specific task has been completed, or a specific event does or does not happen, will be a dismissal in law. The non-renewal of a fixed-term contract concluded for a specified period of time is already a dismissal in law. Employees on these task contracts of one year or more will have a right to a written statement of reasons for this dismissal and the right not to be unfairly dismissed.
As a result of new legislation introduced in the UK the employer still has the right to show that the non-renewal of the fixed-term contract was fair (e.g. for valid business reasons.) If proven fair then no unfair dismissal claim would be possible.
The Regulations do not apply to agency workers, i.e. those who have an employment contract or relationship with a temporary work agency, but are placed with and do their work for a third party. However, employees directly employed by a temporary work agency to work under the control of the agency, for example taking bookings for temps, are covered by the Regulations.
The Regulations apply to employees on contracts that last for a specified period of time, or will end when a specified task has been completed, or a specified event does or does not happen. Examples include employees covering for maternity leave or peaks in demand and employees on task contracts, such as setting up a database.
Guernsey
The Guernsey unfair dismissal legislation provides that employees may waive their unfair dismissal rights in the event of non-renewal of a fixed term contract of two years or more. This means that an employee entering into a fixed term contract of two years or more can agree that the unfair dismissal protection does not apply to their contract.
The Employment Protection (Guernsey) Law, 1998, provides that a dismissal may be considered fair if it falls within one of five categories;
a) related to the capability or qualifications of the employee to perform the work;
b) related to the employee's conduct
c) the employee was redundant
d) the employee could not continue to work in the position without a contravening a duty or restriction imposed by Guernsey law
e) some other substantial reason.
The guidelines to the law suggest the housing regulations and health regulations as examples of local laws that could be contravened, that is, the dismissal could relate to housing laws and be a fair dismissal under d) above.
SECTION 3 – Employment Forum's Consultation, 2001
The Employment Forum was previously asked by the Committee to research this issue in 2001. The Forum examined how unfair dismissal is dealt with in other jurisdictions and consulted interested parties in the business community.
This section details the outcomes of that research and the Forum's previous recommendations on the issues relevant to fixed term contracts and unfair dismissal.
Qualifying Period
The Forum was aware that many organisations and members of the community were anxious that there should be a qualifying period for the right to claim unfair dismissal. Taking this into account, the Forum recommended that only those employees who have been employed for a period of 26 weeks or more, should be entitled to lodge a claim for unfair dismissal and have their case determined by a Tribunal.
The Forum recognised that a large proportion of the Island's workforce work under fixed term contracts and therefore recommended that the legislation should provide that consecutive fixed term contracts are to be aggregated. It was recognised that many employers may employ staff under fixed term contracts for valid business reasons. However, it is also believed that less scrupulous employers could utilise several fixed term contracts of less than six months with short gaps between them, so as to ensure that the qualifying period would never be satisfied and an employee, with perhaps a number of years service, may never be in a position to benefit from the unfair dismissal provisions. The Forum therefore recommended that the legislation should provide that fixed term contracts with gaps between them up to a maximum period of 26 weeks should be aggregated.
The Forum's recommendations have been incorporated into the Employment Law.
Two Thirds Rule
Concerns had been expressed that if a qualifying period for unfair dismissal were to be introduced, a number of employees who work either as seasonal workers or on short fixed term contracts would gain no protection. It was considered that protection would be needed for employees against employers offering only short fixed term contracts to avoid the accrual of service by employees and therefore prevent eligibility for statutory rights, including the right to claim unfair dismissal and possibly other benefits, such as bonuses. It was suggested that to overcome this problem, there should be a shorter qualifying period for short term contracts, whether seasonal or otherwise.
There was also a concern that employers should be allowed to enter into such contracts with their employees without the fear of being subjected to an unfair dismissal claim if the contact is not renewed, and that contracts must be allowed to expire naturally without the employee being entitled to make a claim to a Tribunal. The concept of time limited contracts is that both parties enter the agreement with the understanding that there is a natural life to the employment relationship and that non-renewal of the contract should be seen as fair.
Jersey has a high proportion of seasonal and short term workers who service some of the Islands main industries and the Forum was of the view that, in order for the system to be equitable, such employees should be afforded unfair dismissal protection. It was therefore recommended that employees who enter into contracts of 26 weeks or less with a particular employer be an exception to the six month qualifying rule and qualify to lodge a claim for unfair dismissal if they have completed a period of two thirds or more of their contract.
SECTION 4 - Unfair dismissal and fixed term contracts
The unfair dismissal provisions in the Employment (Jersey) Law 2003 protect employees against arbitrary termination of employment, but make it clear that employees also have responsibilities. In the same way as the UK and Guernsey laws provide categories of reason that can justify dismissal, the Law gives five specific types of reason -
- the capability or qualifications of the employee to perform work of the kind which he or she was employed to do;
- the conduct of the employee;
- redundancy;
- the employee could not continue to work without contravention of a Statute (e.g. when a delivery driver loses his licence);
- other substantial reasons which can be justified.
The test of unfair dismissal is one of “reasonableness”. That is to say, having regard to all the circumstances of the case, whether it was reasonable to dismiss the employee or not. I n certain circumstances the Law states that dismissal of an employee will be classed as “automatically” unfair, if it relates to reasons such as, the assertion of a statutory right and union membership or non-membership.
Fixed term contracts are utilised in both the public and private sector. The report at the beginning of the Employment Law states that, "in order to avoid the artificial use of fixed term contracts by employers, the non-renewal of fixed term contracts will amount to dismissal, except where the job has come to an end (which will be construed as redundancy) and any of the other valid reasons described in the law.”
With regard to what constitutes a dismissal, article 62 of the Law provides circumstances in which an employee is dismissed
(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2), only if) –
(a) the contract under which he is employed is terminated by the employer (whether with or without notice);
(b) he has been employed under a fixed term contract of employment, or a series of fixed term contracts, for less than such continuous period of time as may be prescribed, and the term of the subsisting fixed term contract expires without being renewed under the same contract; or
(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.
Paragraph 62(1)(b), is quite a wide provision, in that it allows for a maximum period to be set by regulation, above which any fixed term contract, or specified types of fixed term contract, may end after a prescribed period and not be considered a dismissal . It also allows for different periods to be prescribed for different types of fixed term contract.
If regulations are made under this provision, the right to claim unfair dismissal for specified fixed term contract workers may be subject to a maximum period, depending on the type or length of employment contract. This is subject to the outcome of this consultation.
The provision at 62(1)(b) was specifically included with the intention of including subordinate legislation to enable a J category contract to end and not be considered a dismissal, in order to protect the States' housing and immigration policies 1. It had been suggested that a period should be prescribed, such as, 3, 5 or 7 years, above which a fixed term contract would not be considered to be a dismissal for the purpose of the unfair dismissal provisions. Some have considered the resulting effect to be illogical - that the longer you work on a fixed term contract, the less protection you would be afforded by the Law.
This provision was included due to concerns that a dismissal may be found to be unfair if a contract is not renewed despite the job continuing. One type of contract that has been suggested could be specified under this provision is temporary agency work contracts, so that the end of a contract should not be considered a dismissal, as usually the job continues even thought the contract does not. T his is often also the case with fixed term contracts in nursing and teaching, where the job must continue, but with a new J category employee. There is therefore a concern that the dismissal would be considered unfair, despite housing regulations limiting the renewal of the contract.
The J category (1 (1) (j)) regulations give the Housing Committee discretion to grant consent to essential employees to purchase or rent property, or to require such employees to be housed in accommodation owned or leased by their employers.
As part of the immigration policy, since 1987 the Housing Committee has been asked to make time restricted, rather than open ended contracts, wherever possible and therefore use that time to train residentially qualified people to take over when J category contracts expire. Where a J category employee completes 10 years essential employment in Jersey, they have residential status in their own right under regulation 1 (1) (e) of the Housing Law.
A 3 year contract is usually given if there is someone ‘in the wings' who is expected to be ready to take on the job at the end of that period, although this is not usually made explicit in the contract because it cannot be guaranteed that person will be ready or qualified by the end of that time. 3, 5 or 7 year contracts are the standard length of J category contract used, for example in health and teaching. 2
Nurses are often given a maximum contract of 5 years and a formal application must be made to extend the contract by a further two years. After 7 years, the contract must end, unless the employee can be made permanent as part of the organisation's annual quota, or the employee becomes residentially qualified during that time by some other means, such as getting married, or if they find alternative unqualified accommodation.
If alternative unqualified accommodation cannot be found, then the dismissal could be found fair for ‘some other substantial reason', although it has been suggested that a substantial reason should not include a reason such as housing status, which is extraneous to the individual's qualifications to do the job, However, the UK definition appears to be wide, including; status as an employee, the nature of the work and terms and conditions of employment, and, as mentioned earlier, the Guernsey guide to the law specifically refers to the housing regulations as an example of a duty or restriction that might be contravened.
Both parties agreeing the intention at the outset of employment is very important. It has been suggested that if the fixed term contract is properly drafted, such that it ends by mutual agreement at the expiry of a fixed term contract or J category licence, the concept of unfair dismissal is unlikely to be raised.
SECTION 5 – The Two Thirds Rule
The Employment Law states that employees who enter into contracts for less than 26 weeks with a particular employer are an exception to the six month qualifying rule and qualify to lodge a claim for unfair dismissal if they have completed a period of two thirds or more of their contract.
Paragraph 3 of article 73 provides the two thirds rule for the unfair dismissal qualifying period;
(3) If an employee is employed under a contract of employment for a fixed term of 26 weeks, or such other period as may be prescribed, or less, Article 61 shall not apply to the dismissal of that employee unless at least two-thirds of the fixed term have expired on the effective date of dismissal, and for this purpose parts of a day that have expired shall be rounded up to a whole day.
This means that an employee on a 30 day fixed term contract would qualify for unfair dismissal protection after 20 days. Some have expressed concern regarding this effect in that it appears unfair, as a permanent employee would have to wait 26 weeks for such protection, which undermines the purpose of having a qualifying period.
In the Isle of Man, the unfair dismissal provisions do not apply if the person is employed under a contract to perform a task that is not expected to last more than 12 weeks, unless they have been continuously employed for more than 12 weeks.
The two thirds rule was created to protect seasonal workers, but there is a need to balance this with the interests of businesses generally, where there is a need to employ people on a short term contract, without the danger of falling into unfair dismissal concerns. It has therefore been suggested that the Employment Law should include regulations requiring an employee to have completed a minimum period of service in order to qualify for the two thirds rule for protection against unfair dismissal.
SECTION 6
Employment Forum Survey
Unfair dismissal and contracts
Instructions
- Please tick the appropriate box to indicate your preference.
- Please use the comment boxes to provide any additional comments or views.
Are you responding as: |
v |
An employer |
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An employee |
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A Union |
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An Employers' Association |
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Your Sector, business or industry type? |
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PLEASE EXPLAIN REASONS FOR YOUR RESPONSES AS FULLY AS POSSIBLE, GIVING EXAMPLE WHERE APPROPRIATE.
1. Should a provision be included in the law to allow a fixed term contract over a certain length to end without being considered a dismissal (and therefore neither fair nor unfair)?
Yes r No Unsure
Please give reasons for your response
2. If such a provision is included in the law, should it apply only to J category contracts and not other fixed term contracts, so that only J category contracts over a maximum length may end without being considered a dismissal?
Yes No Unsure
If yes, please provide details including, what the maximum length of contract should be and if there should be any other criteria to allow the contract to end without being considered a dismissal.
3. Should different provisions or specific regulations be made to allow any other types of fixed term contracts (non J category) to end without being considered a dismissal?
Yes No Unsure
If yes, please provide details including, what types of contract, what the maximum length of contract should be and if there should be any other criteria to allow the contract to end without being considered a dismissal.
5. In what specific jobs, departments or professions do you envisage problems regarding Fixed term or J category contracts and unfair dismissal?
Two-thirds rule
6. The two-thirds rule was created to protect those on fixed term contracts of 26 weeks or less. Should there be a minimum period of service before which the employee would not be entitled to claim unfair dismissal?
Yes No Unsure
Please give reasons for your response
7. If yes, what should the minimum period of service be?
8. Please explain the reasons for your responses regarding the two thirds rule.
9. Do you have any additional comments, concerns and suggestions regarding the unfair dismissal provisions in relation to fixed term contracts and J category contracts, or regarding the two-thirds rule?
10 . Would you allow your comments to be quoted by the Employment Forum in the reporting of the results of this consultation? Please note, if you agree , n o reference will be made to any individual, undertaking, organisation or association .
Yes No
11 . If you would be willing to discuss your responses further with the Forum, please provide the following information. This is optional.
Name
Organisation/association
Address
Phone number
Email
Please print, complete and return this questionnaire to the Department by Friday 28 th May 2004.
Either;
- post in the enclosed pre-paid reply envelope, or
- by email to K.Morel@gov.je , or
- by fax to 01534 280209, or
- post to the following address;
c/o Kate Morel
Employment Forum Secretary
PO Box 55
Philip Le Feuvre House
La Motte Street
St Helier
JE4 8PE.
Thank you for taking the time to complete this survey.
Richard Plaster
Employment Forum Chairman
Further detail regarding the J category regulations can be found on the Housing Department's website - www.housing.gov.je - and regarding the Regulation of Undertakings on the Economic Development Committee website - www.edd.gov.je.
According to the 2001 census, the population of Jersey included 1,120 people with J category licences and estimated that approximately 40% of all J category recent arrivals were employed in the public sector.
