Jersey Employment Tribunal Review: Report 2012

Information about the publication of Ministerial Decisions

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demonstrating that good governance, and clear lines of accountability and authority, are in place around decisions-making – including the reasons and basis on which a decision is made, and the action required to implement a decision
providing a record of decisions and actions that will be available for examination by States Members, and Panels and Committees of the States Assembly; the public, organisations, and the media; and as a historical record and point of reference for the conduct of public affairs

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The Freedom of Information Law (Jersey) Law 2011 is used as a guide when determining what information is be published. While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.

A decision made 12 April 2013:

Decision Reference: MD-S-2013-0030
Decision Summary Title :	JET Review Report to States		Date of Decision Summary:	4 April 2013
Decision Summary Author:	Policy Principal		Decision Summary: Public or Exempt?	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	N/A
Written Report Title :	‘Covering Report JET Review’ and ‘JET Review’		Date of Written Report:	4 April 2013
Written Report Author:	Policy Principal		Written Report : Public or Exempt?	Public
Subject: Jersey Employment Tribunal Review – Report to States
Decision(s): The Minister decided to present to the States the appended report concerning a review of the decisions reached by the Jersey Employment Tribunal in 2012.
Reason(s) for Decision: The terms of reference for the review were: “To review each of the Jersey Employment Tribunal’s decisions in the 2012 calendar year and provide the Minister with a written report on the following: The result in each case The reasons given by the Tribunal for reaching that decision Whether the decision of the Tribunal suggests that the complaint could be described as wholly without merit. To identify in the decisions of the Tribunal: Any patterns or precedents Any areas of the Jersey employment legislation that appear to be a source of confusion or particular difficulty.” The report indicates that there is not a fundamental problem with the way in which the Tribunal deals with cases and uncovers nothing to justify more detailed scrutiny. The Minister will consider four relatively minor matters that were raised in the report and will decide what, if any, action is required to address them.
Resource Implications: There are no financial or manpower implications. The cost of the report was £5,000.
Action required: Policy Principal to provide copies of the report and request the Greffier of the States to arrange for the report to be presented to the States on 16 April 2013.
Signature:		Position: Minister
Date Signed:		Date of Decision (If different from Date Signed):

Jersey Employment Tribunal Review: Report 2012

Report to the States

Jersey Employment Tribunal Review

Minister’s introduction

I became aware during 2012 of increasing levels of criticism levelled at the Jersey Employment Tribunal (‘the Tribunal’), including criticism directed through the media, by certain employers and employer representative bodies.

The apparent lack of faith in the validity and legitimacy of the Tribunal’s decisions is of great concern to me. If there is any foundation to those views, appropriate action must be taken swiftly. If, however, the comments are unfounded, swift action must also be taken to minimise the detrimental impact on the reputation of the Tribunal.

It is inevitable that employers will often be dissatisfied when a Tribunal finds in favour of the employee, particularly where this brings a cost to the employer. With our plans to bring discrimination legislation into force in the second half of 2014, it is vital that the credibility of the Employment Tribunal (proposed to be renamed ‘the Employment and Discrimination Tribunal’) is reinforced. It is in everybody’s interest that the Tribunal functions as well as possible.

I commissioned a review of the Tribunal’s decisions to determine what the grounds might be for the strongly negative reaction of certain employers and employer representative bodies. I wanted to address whether, for example, the Tribunal is unduly punishing employers for minor technicalities, and whether the Tribunal could be perceived as biased in favour of employees.

I instigated this review with the intention that, if any significant issues of potential concern were identified, that the resulting report could provide the basis for the undertaking of a wider review. This review was undertaken by Mr Darren Newman, LLB who is an independent employment law expert working as a consultant writer and trainer in the UK. As well as his UK employment law expertise, Mr Newman has a good knowledge of Jersey’s employment law and its context.

I am pleased to be able to reassure States Members that, based on the decisions of the Tribunal during 2012, the review found that the Tribunal is not biased in favour of employees and the criticism that Tribunal decisions are inconsistent is unfounded. I am grateful to Mr Newman for the careful review that he has undertaken to prepare this useful and informative report.

I strongly endorse and support the work of the Tribunal Chairman, Deputy Chairman and Side Members. I hope that the publishing of this report will reinforce the reputation of the Tribunal as a provider of unbiased, sensible and sensitive decisions.

Terms of reference

The terms of reference for the review were:

“To review each of the Jersey Employment Tribunal’s decisions in the 2012 calendar year and provide the Minister with a written report on the following:

The result in each case
The reasons given by the Tribunal for reaching that decision
Whether the decision of the Tribunal suggests that the complaint could be described as wholly without merit.

To identify in the decisions of the Tribunal:

Any patterns or precedents
Any areas of the Jersey employment legislation that appear to be a source of confusion or particular difficulty.”

Outcomes

The report considered whether there are any areas that appear to cause particular difficulties for employers. The outcomes indicate that there is not a fundamental problem with the way in which the Tribunal deals with cases. The review uncovered nothing to justify more detailed scrutiny and, based on the findings, the Minister does not propose to carry out a wider review at this time.

The report concludes that the written decisions of the Tribunal –

Meet the test of adequacy; the reasons for a party losing a case are usually clear, sometimes overwhelmingly so.

Are not overly lengthy, formal, legalistic or complex.

Do not identify adverse impact on any particular sector.

Suggest nothing in the Tribunal’s approach to indicate a general bias towards employers or employees.

Demonstrate that the Tribunal’s approach is consistent (e.g. in dealing with small employers and complaints of unfair dismissal).

Show a sensible adoption of ‘standard directions’ for unfair dismissal, providing a useful checklist for employers.

Demonstrate sensitivity to the particular facts of a case/reasonableness (i.e. differences in decisions are for this reason rather than a lack of consistency).

Suggest that cases generally involve fundamental failures of employers to observe basic principles of fairness, rather than dealing with minor failures in procedure (e.g. the frequency of on-the-spot dismissals).

Show that cases were predominantly against small and medium sized businesses, many of which have no formal human resources function. It may be that larger employers are more likely to agree a settlement.

Show that, whilst fair procedure is expected, the Tribunal will overlook procedural failings when the basis for dismissal is sound and the employer is a small business (and suggests that the Tribunal is more willing than UK tribunals to overlook such procedural failings).

Provide no basis for a conclusion that employers are being forced to defend hopeless (frivolous or vexatious) cases. It is possible that vexatious or frivolous complaints are made but are withdrawn or settled before they reach the Tribunal. If that is the case, then it is perhaps evidence that the system works.

Provide little basis for any complaints that the Tribunal is too formal, expensive, inconsistent and unpredictable.

Matters identified

The following matters were identified in the report;

It is efficient to include provision in the Employment Law that fixes the amount of unfair dismissal awards, as this means that the Tribunal can often decide the merits of the case and remedy at the same time, without the need for a separate remedies hearing. However, fixing the award of compensation in this way can sometimes appear unfair in specific cases.

In some cases, the Tribunal has declined to reduce compensation for unfair dismissal. Article 77F(10) of the Employment Law allows the Tribunal to reduce the amount of compensation to take into account any circumstances that it considers would be ‘just and equitable’. While this power might be wide enough to allow a Tribunal to make what is known in the UK as a ‘Polkey’ deduction - to reflect the extent to which the employee would have been dismissed even if the employer had behaved reasonably - in practice the Tribunal has not yet considered such a reduction to be ‘just and equitable’.

The Tribunal should always include in the written decision -

A record of when employers are represented at hearings and the types of representative.

A summary of the outcome of the hearing at the start of each written decision.

Clear reasons why an unfair dismissal award has not been reduced.

A small number of cases illustrate that some employers (mostly small owner-managed businesses) are unaware of, or are prepared to disregard, fundamental requirements of the Employment Law. The report suggests that further efforts might be targeted to small employers, via the Jersey Advisory and Conciliation Service (JACS), to ensure that there is awareness of the need to provide fair warning of dismissal or redundancy.

The Minister will consider these matters in conjunction with stakeholders, in particular with the Chairman of the Employment Tribunal and the Director of JACS, to decide what, if any, further action is required to address them and with a view to making any improvements that may be required.