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Jersey Employment Tribunal: Annual Report: 2012

A formal published “Ministerial Decision” is required as a record of the decision of a Minister (or an Assistant Minister where they have delegated authority) as they exercise their responsibilities and powers.

Ministers are elected by the States Assembly and have legal responsibilities and powers as “corporation sole” under the States of Jersey Law 2005 by virtue of their office and in their areas of responsibility, including entering into agreements, and under any legislation conferring on them powers.

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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

Ministers are individually accountable to the States Assembly, including for the actions of the departments and agencies which discharge their responsibilities.

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While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.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 on 17 May 2013:

Decision Reference: MD-S-2013-0045

Decision Summary Title :

DS JET 2012 Annual Report

Date of Decision Summary:

15 May 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 :

WR JET 2012 Annual Report

Date of Written Report:

15 May 2013

Written Report Author:

Chairman, Jersey Employment Tribunal

Written Report :

Public or Exempt?

 

Public

Subject: Jersey Employment Tribunal – 2012 Annual Report

Decision(s): The Minister decided to present to the States the Jersey Employment Tribunal’s 2012 Annual Report.

Reason(s) for Decision: Regulation 10 of the Employment Tribunal (Jersey) Regulations, 2005, (as amended by the Employment Tribunal (Amendment No. 3) (Jersey) Regulations 2012 on 17 July 2012) requires the Chairman of the Jersey Employment Tribunal (the ‘Tribunal’) to prepare an annual report on the activities of the Tribunal and to submit it to the Minister within four months of the end of each financial year.  The Minister must lay a copy of the annual report before the States at the first reasonable opportunity.

 

The Chairman of the Tribunal, Mrs Nicola Santos-Costa, submitted the 2012 Annual Report to the Minister on 23 April 2013. The Minister is grateful to the Chairman, Deputy Chairman, Side Members and administrative support staff for their services to the Tribunal during 2012.

 

Resource Implications: There are no financial or manpower implications.

Action required: Minister, in conjunction with the Greffier of the States, to present copies of the Annual Report to States Members and Officers.

Signature:

 

 

Position:

Minister

 

Date Signed:

 

 

Date of Decision (If different from Date Signed):

Jersey Employment Tribunal: Annual Report: 2012

 

Jersey

Employment Tribunal

 

employment tribunal.jpg

 

Annual Report

2012


Table of Contents

 

Introduction 3

 

Chairman’s Comments 4-6

New Reporting Period 4

Future Reporting 4

General Information 4

Administration 5

Website 5

Chairman’s Conclusion 6 

 

Tribunal Statistics 7-14

Complaints Received 7-10

Hearings 11-14

 

Appendix 15

 

Membership of the Employment Tribunal 2012 16

 

Contact Details 17 

 


Introduction

The Jersey Employment Tribunal (the ‘Tribunal’) is an independent judicial body set up to hear and resolve certain complaints and matters of dispute arising under the Employment (Jersey) Law 2003 (the ‘Employment Law’) and the Employment Relations (Jersey) Law 2007 (the ‘Employment Relations Law’). The Tribunal is like a court but is less formal.

The Tribunal was established when the Employment Law came into force on the 1st  July 2005 and is based at the first floor of Trinity House, Bath Street, St Helier, Jersey.

The Tribunal consists of a legally qualified Chairman and Deputy Chairman and two pools of side members. One pool of side members comprises up to 8 persons with knowledge or experience of, or an interest in, trade unions or matters relating to employees generally. The other pool comprises a group of up to 8 persons with knowledge or experience of, or an interest in, employers’ associations or matters relating to employers generally. All appointments to the Tribunal are made by the States of Jersey upon the recommendation of the Minister for Social Security.

Once appointed, lay members remain totally independent of their background; they do not represent any organisation that they are associated with or indeed even the employee/employer side of a complaint. The practical knowledge and experience that these people bring to the Tribunal discussions is greatly valued by the Chairman and Deputy Chairman.  The Chairman and Deputy Chairman can sit alone to hear disputes but generally, whenever the Tribunal sits to consider issues at an interim hearing or a full hearing, it will consist of a panel of three persons being the Chairman or Deputy Chairman, together with one person from each pool of side members.

The Tribunal’s hearings are generally held in public (although there are certain circumstances when hearings are held in private) and anyone can observe Tribunal hearings. The Tribunal’s decisions are issued in writing and are available to the public for reference on the Tribunal’s website:

www.jerseyemploymenttribunal.org

The majority of Tribunal decisions are now published on the Jersey Legal Information Board (JLIB) website:

www.jerseylaw.je/Judgments/JET

This is the eighth Annual Report of the Jersey Employment Tribunal and covers the period 1st January 2012 to 31st December 2012.

 

 

Chairman’s Comments

New Reporting Period

The Jersey Employment Tribunal was established on 1st July 2005 following the implementation of the Employment (Jersey) Law 2003.  Since then, the Employment Tribunal has produced an Annual Report with a reporting period running from 1st July to 30th June.  In 2012, the Employment Tribunal (Jersey) Regulations 2005 were amended to provide that, “The Chairman shall prepare an annual report on the activities of the Tribunal and submit it to the Minister within 4 months after the end of the financial year”.

The reporting period of the Employment Tribunal will now be in line with other governmental reports.  This Annual Report will present data for the year 2012 and, where appropriate, for the six month period since the last Annual Report, being 30th June - 31st December 2012.

 

Future reporting

As of January 2013, the Employment Tribunal will record broader data on each case in order to further enhance the information being provided in our Annual Report. Amongst others, we will be reporting on the type of organisation of the Respondent involved, for instance whether they are a sole trader or company etc.  In addition, the outcome of a complaint will be broken down to reflect the outcome of each particular issue within the complaint and the amount of compensation awarded will also be broken down to show the award for each head of claim. 

 

General Information

There have been no new appointments to the Tribunal since the last Report in June 2012 and there are currently no vacancies for Tribunal members. No further training of Tribunal members has taken place in the second half of 2012. The Chairman and Deputy Chairman remained indebted to the Tribunal members for their commitment to the Tribunal process.

In October 2012 the Chairman was invited to attend a training day of the Guernsey Employment Tribunal members and to advise upon successful practices and procedures of the Jersey Tribunal which might be of assistance to them in the performance of their duties. This was an interesting and insightful meeting which is expected to continue as an annual event.

There were no legislative developments in the second half of 2012 which impacted upon the work of the Employment Tribunal.

The proceedings of the Tribunal are open to the public (with a few limited exceptions) and any potential users of the Tribunal or interested parties are welcome to come along and observe a hearing and the style of the Tribunal process.

 

Administration

The role of Registrar of Appeals and Tribunals is still performed by Louise Cave and Jo Hickey on a job share basis. They are supported by Rebecca Newman and Kathryn Cuccurullo who carry out the role of receptionist/administrator, again operating through a job share.

In addition to responsibilities under the Employment Law and Employment Relations Law, the Registrar also has responsibility for appeals and claims in connection with other legislation including the Social Security and Health and Safety Laws.

The office is now referred to as The Tribunal Service.

The Employment Tribunal’s aim is to provide swift, accessible, cost effective decisions to employment disputes. The Tribunal remains focussed on providing a user friendly service and we are aware that we have a responsibility to ensure that our documentation and terminology is easily accessible to all parties. Interpreters will be provided to parties as required, at no cost to them. We have prepared explanatory pamphlets about preparing for a Case Management Meeting, the grounds for applying to strike out a complaint and the preparation of bundles. These are available on request at no cost and the Case Management document is available in English, Polish and Portuguese. In due course all our explanatory documents will be available in these languages. The Registrar and the Receptionist are always willing to help with a general enquiry about the progress of a case.

The majority of parties appearing before the Tribunal represent themselves. The Tribunal uses non legalistic terms and processes so that parties feel confident in representing themselves. There are no costs awarded to either party in the Tribunal and it is understood that the Minister has no plans to change this policy. The Tribunal has put in place a service pledge that all its decisions will be delivered in writing to the parties within 4 weeks of the hearing date. From early in 2013 the Tribunal will issue a short note (‘an Acte’) to the parties recording the outcome of its decision and the value of any Awards made in advance of its written decision.

 

Website

Plans are in place for a new website for the Employment Tribunal and it is anticipated that this will become available in the latter part of 2013. In the meantime users requiring a copy of any of the Tribunal’s decisions should use www.jerseylaw.je/Judgments/JET  where they will find copies of Full and Interim decisions of the Tribunal for reference.

Chairman’s Conclusion

The Tribunal statistics show that overall the number of complaints to the Tribunal fell slightly in 2012. It will be easier to see if this a trend when the statistics for the calendar year of 2012 are compared to those collected for the calendar year of 2013 next year. It is interesting to note that the Tribunal was convened for fewer Full hearings and Interim hearings in 2012 than in previous years but the number of Case Management Meetings convened in 2012 doubled from the previous period. It is a reasonable conclusion to draw that this early intervention is resulting in a greater number of settlements and withdrawals of complaints to the Tribunal. Of those cases that do proceed to a Full hearing one feature that is clear is that Unfair Dismissal remains the most common complaint made to the Employment Tribunal. In the current economic climate there are undoubtedly more dismissals taking place for a variety of reasons not least because of redundancy but also the fact that employers are demanding higher standards from their employees. It is a great pity that some of these terminations of employment are resulting in complaints to the Employment Tribunal, many of which are successful.  A review of the cases heard by the Tribunal in 20121 indicates that most involved small employers, without HR support, who failed to follow a fair procedure – sometimes even when a disciplinary procedure was contained in their contracts of employment. The Tribunal is not concerned by the lack of resources of an employer but it does expect an attempt to be made to follow a fair procedure in the process of terminating an employee’s employment. The Tribunal would urge employers to gather the information they need regarding a due process from JACS, CAB, lawyers or professional advisers before dismissing an employee. Many employers consider that the employment laws are weighted against them, they are not but the employers must take steps to adapt to the requirements of the law: as indeed many employees have already done so.

 

Nicola Santos-Costa

Jersey Employment Tribunal Chairman

23rd April 2013

 

 

 

 

 

 

 www.statesassembly.gov.je/AssemblyReports/2013/R.028-2013.pdf

Tribunal Statistics

In any given reporting period, the Employment Tribunal deals with complaints received and hearings.  These may overlap, meaning that a complaint received will come to hearing within the same period.  However, complaints received in the latter part of a reporting period tend to be heard in the following period.  Conversely, cases that are heard within the reporting period may relate to complaints received in a previous period and carried forward.  For the sake of clarity, this report will look at complaints received and hearings separately.

 

Complaints Received

Complaints received are applications/complaints made to the Employment Tribunal by way of a Form JET1. Figure 1 below shows the number of complaints received by the Tribunal in each reporting period since its inception.

Figure 1 Complaints Received 

As shown in Figure 1, the Tribunal received 174 complaints during 2012; 10 fewer than the average number of 184 complaints per period.  Out of these 174 complaints, 96 were received in the six month period to 31st December 2012.  Any reduction in complaints is viewed positively by the Tribunal, particularly given that the number of redundancies in the Island has undoubtedly increased due to the recession.

Of the 174 complaints received, 77 concerned a single issue, whereas 97 concerned multiple heads of claim.  Consistent with previous reporting periods, the majority (86%) of complaints received by the Tribunal concern a claim for unfair dismissal.  Yet contrary to the previous reporting period (64%) complaints citing termination of employment as a grievance has dropped (40%).  The termination of employment category includes claims for notice pay and redundancy pay. 

Figure 2 below shows the percentage of complaints received during 2012 that contained each particular issue.

 

 Figure 2 Percentage of complaints received in 2012 containing each issue

 

Table 1 below details the issues contained in the 174 complaints received by the Tribunal in 2012, together with those of previous reporting periods.

Table 1 Issues contained in complaints received by the Tribunal

 ISSUE

2009/10

2010/11

2011/12

2012

Unfair dismissal

139

148

156

151

Payment of wages

80

71

61

47

Minimum rest periods and annual leave

47

61

74

49

Termination of employment

73

59

114

70

Written Statement of employment

23

5

6

2

Breach of contract

3

3

4

9

Minimum wage

2

3

6

2

No itemised pay slip

8

0

9

5

TOTAL

375

350

430

335

 

Of the 174 complaints received in 2012, 80 are ongoing – meaning that they are currently being processed in order to reach a hearing date.  Figure 3 shows this, together with the outcomes of the remaining 94 complaints. Figure 3 can be read in conjunction with Table 2, below, which explains the possible outcomes to a complaint.

Figure 3 Outcomes of Complaints Received

 

Table 2 Possible Outcomes to a Complaint

Outcome

Definition

Ongoing

a complaint that is being processed and has not yet been heard

Rejected

a complaint that has not been admitted by the Chair, usually because it does not comply with the Employment Law (Jersey) 2003

Settled

both parties have come to an agreement and resolved the matter, usually via JACS

Withdrawn

the Applicant has decided that they do not wish to continue with their complaint

Struck Out

the Applicant’s complaint is heard at an Interim Hearing and the Panel conclude that part or all of the complaint does not comply with the Employment Law (Jersey) 2003 and cannot proceed to a Full Hearing

(in favour of) Respondent

 

the complaint reaches a Full/Interim hearing and the Tribunal’s Decision is in favour of the individual/organisation who responded to the complaint (employer)

(in favour of) Applicant

the complaint reaches a Full/Interim hearing and the Tribunal’s Decision is in favour of the individual who lodged the complaint (employee)

 

Either party can elect to be represented at any point in their case.  During this reporting period, 16 of the 174 Applicants had representation; in 13 cases this was legal representation and in 3 cases representation was via a trade union.  From 2013, the Tribunal will keep broader information on the representation of Applicants and Respondents; further details of this are found on page 4.

Figures 4 and 5 show the sector of industry where Applicants were employed, and their occupational group (based on the Standard Occupational Classification (SOC 2000)). Complaints were made by employees across a wide spread of employment sectors and occupations.  See the Appendix for charts reflecting the 6 month period to 31st December 2012.

Figure 4 Complaints Received by Sector of Industry

The ‘other business activities’ sector includes ‘Miscellaneous business activities’ and private sector ‘Education, health and other services’.  The ‘transport, storage and communications’ sector includes Jersey Airport, Harbours, Postal Administration and Jersey Telecom.

 

Figure 5 Complaints Received by Occupational Group

 

 

­­­­­

Hearings

If a complaint is not settled, withdrawn or rejected at an earlier stage, it proceeds to a hearing.  A hearing is attended by the Applicant and Respondent, many of whom choose to put their own case to the Tribunal whilst others are represented by a lawyer, trade union official, professional organisation, a friend or relative. 

A hearing is normally conducted by a Chairman and two panel members.  The purpose of a Full hearing is to decide whether the complaint or complaints succeed or fail, i.e. if it falls in favour of the Applicant or Respondent, and to make the appropriate award or compensation.

Prior to a Full hearing, there may also be an Interim hearing, which may be vital in order to determine whether the case can continue or not.  These take place in order to determine an initial point of law, in other words, whether or not the Tribunal has the jurisdiction to hear part or all of the complaint.  Figure 6 below shows how many Full and Interim hearings have taken place at the Employment Tribunal in each reporting period.

    Figure 6 Full and Interim Hearings

 

The average number of hearings (both Full and Interim hearings) per period is 78.  In 2012, the Tribunal convened for 70 hearings, comprising 48 Full hearings and 22 Interim hearings. 

Of the 48 Full hearings, 44 were heard in one day, 2 lasted two days, 1 was heard over three days, and 1 lasted five days.  In the six month period ending 31st December 2012, there were 21 Full hearings and 5 Interim hearings.

The Tribunal introduced a policy in 2012 whereby Case Management Meetings (CMMs) are now being held for the majority of cases. In 2012, 56 CMMs were convened; almost double that of the previous reporting period.  In the 6 month period ending 31st December 2012, there were 27 CMMs.

The purpose of a CMM is to require the parties to give as much information as possible to each other and the Tribunal about the case in advance of the hearing so that the case can proceed to a Full hearing as easily as possible.  For instance, the Chair of the Case Management Meeting makes enquiries of the parties regarding disputed factual information given on the Forms JET1 and JET2 (the employer response form); deals with matters such as requests by the parties for copies of documents which are relevant to their case and the attendance of witnesses at the hearing.

Figure 7 below shows the outcomes of hearings in 2012.  This can be read in conjunction with Table 2 ‘Possible Outcomes to a Complaint’, on page 9. Thirty of the Full hearings found in favour of the Applicant and 15 found in favour of the Respondent.  In the previous reporting period, 27 of the 55 Full hearings found in favour of the Applicant, and 21 found in favour of the Respondent.

 

Figure 7 Outcome of Tribunal hearings in 2012

 

 

 

 

 

Following a Full hearing, the Tribunal may make an award in accordance with the Employment (Jersey) Law 2003.  These sums are calculated depending on the type of complaint, as set out in Table 3 below.   

Table 3 Awards made by the Tribunal

Unfair Dismissal

Compensation is based on weekly pay at the end of employment and years of continuous service to a maximum award of 26 weeks’ pay

Uncapped but subject to principles of reduction contained in the Employment Law

Statutory Notice pay

Compensation is based upon weekly pay at the end of employment and years of continuous employment to a maximum award of 12 weeks’ pay

Uncapped

Redundancy pay

Compensation is based upon one weeks’ pay per complete year of continuous service

Uncapped but subject to a maximum amount of weekly pay currently set at £650

Statutory Holiday pay

All employees are entitled to receive a minimum of 2 weeks’ paid leave and to receive a paid days’ leave on all bank and public holidays in Jersey

Uncapped

Right to representation at a Disciplinary or Grievance hearing

Compensation is 4 weeks’ pay (maximum)

Uncapped

Minimum Wage

The Tribunal will award the amount necessary to bring the wage earned up to the minimum wage, (£6.48 per hour as at 31st December 2012; £6.53 per hour from 1st April 2013)

Uncapped

Failure to comply with a Direction for re-employment

Compensation of up to 26 weeks’ pay in the Tribunal’s discretion plus in certain circumstances the original unfair dismissal award

Uncapped

Protective award for failure to consult on proposed collective redundancies

Up to 9 weeks’ compensatory pay to each affected employee

Uncapped

Other employment contract disputes

 

Capped at a maximum award of £10,000 for all other contractual claims

 

 

 

 

In 2012, there were 17 unfair dismissal cases resulting in compensation. The Tribunal has the power under the Employment (Jersey) Law 2003 to reduce compensation for unfair dismissal in certain circumstances and in 2012 the Tribunal exercised its discretion to reduce this compensation in accordance with those provisions on three occasions.  Further information about the compensation awarded to successful applicants in 2012, and of the reductions applied, can be found by reference to Jersey Employment Tribunal Review: Report to the States [March 2013]2.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2 www.statesassembly.gov.je/AssemblyReports/2013/R.028-2013.pdf

 

Appendix

The Tribunal records the sector of industry in which Applicants were employed, together with their occupational group. Figures 4 and 5 on page 10 reflect the results in percentage terms for the year 2012; Figures 9 and 10 below, set out the results for the six month period ending 31st December 2012.

Figure 9 Complaints Received by Sector of Industry (6 month)

The ‘other business activities’ sector includes ‘Miscellaneous business activities’ and private sector ‘Education, health and other services’.  The ‘transport, storage and communications’ sector includes Jersey Airport, Harbours, Postal Administration and Jersey Telecom.

Figure 10 Complaints Received by Occupational Group (6 month)


Membership of the Jersey Employment Tribunal 2012

As of 31st December 2012, the members of the Tribunal were:

 

Chairman

 

Mrs Nicola Santos-Costa

 

Deputy Chairman

 

Advocate Claire Davies

 

Members with experience as representatives of employers

Members with experience as representatives of employees

 

Mrs Susan Armes

Mrs Louise Cram

Mrs Mary Curtis

Mr Stewart Mourant

Mr Mark Therin

Mr Peter Woodward

Mr Ian Carr

Mr Timothy Allen

 

Mr Michael Baudains

Mr Alan Hall

Mr Patrick Kirwan

Mr Timothy Langlois

Mr Sam Le Breton

Mr James McCartan

Mr John Noel

Mrs Angela Swindell


Contact details

 

 

The Registrar:

Mrs Louise Cave

Mrs Jo Hickey

 

 

Jersey Employment Tribunal

1st Floor

Trinity House

St Helier

Jersey

JE2 4ST

 

 

Office hours

The office is open to the public during these times:

Monday – Friday

09:30 – 16:00

 

 

    Telephone: 01534 441380

Fax: 01534 625898

E-mail Registrar: registrartribunalservice@gov.je 

Email Reception:admintribunalservice@gov.je

Website: www.jerseyemploymenttribunal.org

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