Jersey Employment Tribunal: Annual Report 2010-2011

Jersey Employment Tribunal Annual Report

2010 - 2011

Jersey Employment Tribunal Annual Report 2010/11

This is the sixth annual report of the Jersey Employment Tribunal and covers the period 1st July, 2010, to 30th June,

2011.

- 1 -

TABLE OF CONTENTS

CHAIRMAN'S REVIEW OF THE YEAR  3

Membership of the Tribunal  3 Legislative Developments   3 Staffing  4 Training  4 Website  4 Administration  5 Review Group  5 My Resignation  5

GENERAL STATISTICS   6 Applications to the Jersey Employment Tribunal  6 Number of Cases Heard   6 Interim Hearings  6 Outcomes of Tribunal Applications  6 Outstanding Cases from Previous Years  7 Issues Identified in Applications   7

MEMBERSHIP OF THE JERSEY EMPLOYMENT TRIBUNAL 2010/11  8 CONTACT DETAILS  9 STATISTICAL APPENDIX  10 NOTES  14

CHAIRMAN'S COMMENTS

Membership of the Tribunal

As ever, I am grateful for the commitment of the Tribunal members. Time spent in hearings probably is about half the time the members actually spend on each case.  The  rest  of  the  time  is  spent  studying  the  papers  before  hearings, discussing and examining in detail the evidence after hearings and prior to making the decision. Thereafter, the Chairman or Deputy Chairman provides a draft judgment for the panel members to correct and amend before publication, and there may be several drafts before the document is finalised.

All too often, the Tribunal convenes to hear a case only to find that one of the parties does not appear, or reads the papers before a hearing only to find that the parties settle the case a day or two before the hearing. In both cases at that stage it is too late to arrange for another case to be heard by that panel. This is hard on panel members who may have taken holiday time or time off work to attend and who have spent their own time reading the papers. It is also a nuisance administratively, for if our time were not wasted in this way, we would be able to reduce the backlog of cases awaiting hearing.

Two appointments were made during the period of this report: Mrs Louise Cram as  an  employer  representative  and  Mr  John  Noel  as  an  employee representative. There are currently two vacancies for Tribunal members and I hope that these vacancies will be filled by the end of the year.

Legislative Developments

Discrimination Law

The States of Jersey has approved in principle a law to prevent discrimination.

I  believe  that,  with  some  adjustments  in  terms  of  name,  manpower  and resources, the Tribunal would have the capacity to deal with all aspects of discrimination and if it is agreed that discrimination claims should be heard in the same relatively informal manner as employment claims, the Tribunal might reasonably  be  regarded  as  the  most  suitable  forum  for  all  discrimination matters.

Redundancy Law

The Employment (Amendment No. 5) (Jersey) Law, 2010, came into effect on 1st January, 2011. The main aims of this amendment are to (1) set out an

employee's entitlement to a redundancy payment (2) provide for paid time off to seek, or arrange training, for future employment, and (3) provide for a means of enforcement of these provisions.

Unfair Dismissal Awards

From October, 2009, the Tribunal has the power to reduce the compensation that an employer is ordered to pay where the employee has contributed in some way to his or her own dismissal, in addition to being able to order the re- employment of an unfairly dismissed employee instead of a financial award. These powers allow the Tribunal to achieve greater fairness than hitherto.

Staffing

John Mallet has retired as Secretary to the Tribunal. He was there at the beginning, and it was largely due to his organization and patience that we now have a Tribunal which runs smoothly. John's firm yet kind management of the parties in employment disputes has set the hallmark to the Tribunal's approach: we try throughout the process to match fairness with compassion.

In October, 2010, Mrs Louise Cave joined the Tribunal from the Viscount's Department as Registrar of Appeals and Tribunals, and is assisted on a part- time basis by Mrs Jo Hickey. Both contribute most effectively to the smooth running of the Tribunal.

Training

During the period covered by this report Tribunal members received training on 18th November, 2010, and 4th March, 2011. The courses are designed as a

refresher for existing panel members and an introduction for new panel members.

Website

It has become apparent that the current website is outdated and in need of improvement. Work is currently being undertaken to update the website with a view to creating a much more user friendly website containing extra information. In addition, work is progressing on transferring all Tribunal judgments onto the Jersey Legal Information Board (JLIB) website. By using advanced search tools, access to relevant Tribunal judgments will be much more straightforward. The intention is to create a link from the improved Tribunal website direct to the JLIB website.

Administration

From January this year responsibility for the Tribunal's administration moved from the Department of Employment and Social Security to the Judicial Greffier. I have no doubt that the experience within the Judicial Greffe will be valuable. There are, however, two dangers which should be borne in mind.

First, the Tribunal is a statutory body created by the States, as a political decision, to fulfil a social need. The Minister for Social Security, who is responsible for the Tribunal, has to be sensitive to the political and social requirements of the States, and hitherto I have been aware of those requirements through exchanges with the Minister or his civil servants.

The Judicial Greffier is not answerable to the States. It is therefore important, I believe, that the Minister keeps a close interest in the Tribunal.

Second, the Tribunal deliberately works  very differently from the courts; its hallmarks are informality and flexibility; it has to be accessible to parties who generally are not represented by lawyers or other experts. I hope that the Judicial Greffier will recognise this difference.

Review Group

Every organisation needs external review from time to time, and with the Minister's approval I have recently set up a working group under one of the lawyers who appears in the Tribunal, Helen Ruelle, to look at how the Tribunal operates and report its findings to the Chairman and the Minister. At the time of writing this, we are still considering membership of the group, but I hope that the group will be at work before the end of the year.

My resignation

Some time ago I informed the Minister of my wish to retire from my post as Chairman. No date has been fixed for my departure; it depends upon when my replacement is appointed, but I expect it will be early in the new year.

To the panel members past and present, and to Nicola Santos Costa, I give my thanks for their hard work.

The support we have had from Kate Morel at the Social Security Department has been beyond value. I am also grateful for the support and interest shown by successive ministers, Paul Routier and Ian Gorst .

David Le Quesne

Jersey Employment Tribunal Chairman 27th of October, 2011

GENERAL STATISTICS

Applications to the Jersey Employment Tribunal

During the period 1st July, 2010, to 30th June, 2011, the Jersey Employment Tribunal received 194 applications, an increase of 25 compared to the previous reporting period (15% increase). This continued increase probably reflects the difficult  economic  climate,  in  which  employers  wish  to  reduce  staff  and employees are desperate to keep their jobs. The applications came from a wide spread of Jersey's employment sector, and for the first time are included in this report in the Statistical Appendix.

Number of Cases Heard

During the period the Tribunal sat on 74 occasions: 53 full hearings and 21 interim hearings, a decrease of 13 compared to the previous reporting period.

In addition, some case management and directions matters are dealt with by the Chairman or Deputy Chairman on paper, without a hearing.

Of the full hearings, judgment was given in favour of the Applicant in 28 cases and in favour of the Respondent on 11 occasions. The remaining cases were dealt with at hearing as follows: 9 settled, 3 dismissed, 1 withdrawn and 1 struck out.

Interim Hearings

Interim hearings are used increasingly to determine matters such as whether the Tribunal has jurisdiction, whether the claimant is an employee of the alleged employer, identifying the issues for determination, disclosure issues and many other areas where preliminary determinations may lead to a fair and efficient hearing. These are conducted at the request of either of the parties or at the direction of the Chairman or Deputy Chairman.

Outcomes of Tribunal Applications

Unless a party indicates that he/she does not want conciliation, all applications and responses are forwarded to the Jersey Advisory and Conciliation Service (JACS). The Employment Tribunal actively encourages both parties to meet an Officer of JACS. Cases only come to the Tribunal if no conciliated settlement has been reached.

The 194 applications that were received during the report period were dealt with as follows:-

Outstanding Cases from Previous Years

For the period 2005 there is one case outstanding. The conclusion of this case is dependent on the outcome of a hearing before the Royal Court. The only other outstanding cases are three for the period 2008 and four for the period 2010.

Issues Identified in Applications

Consistent with previous reporting periods, the majority of cases coming before the Tribunal relate to unfair dismissal and payment of wages. It is interesting to note, however, that there has been a marked decrease in applications citing no contract as a grievance.

The figures below do not include additional issues which are identified to the Tribunal during the course of a hearing, and in most applications there is more than one issue to be addressed by the Tribunal.

Membership of the Jersey Employment Tribunal 2010/11

As of 30th June, 2011, the members of the Jersey Employment Tribunal were:-

Chairman

David Le Quesne

Deputy Chairman

Mrs Nicola Santos-Costa

Members with experience as Members with experience as representatives of employers representatives of employees

Mrs Susan Armes Mrs Louise Cram  Mrs Mary Curtis  Mrs Kelly Flageul   Mr Stewart Mourant Mr Mark Therin

Mr Peter Woodward

Mr Michael Baudains Mr Alan Hall

Mr Patrick Kirwan Mr Timothy Langlois Mr Sam Le Breton Mr James McCartan Mr John Noel

Contact details

Jersey Employment Tribunal 1st Floor

Trinity House

St Helier

Jersey

JE2 4ST

Telephone: 01534 630291

Fax: 01534 625898

E-mail: admin@jerseyemploymenttribunal.org

Website: www.jerseyemploymenttribunal.org

STATISTICAL APPENDIX

Figure 1 - Applications Received During the Period 1st July, 2010, to 30th June, 2011

Figure 2 - Comparison of Full and Interim Hearings Held

Figure 3 - Comparison of Tribunal Judgments

Note: Of the 194 applications received during the period 1st July, 2010, to 30th June, 2011, 17 cases were found in favour of the Applicant and 7 in favour of the Respondent. Of all full cases heard by the Tribunal during the same period (which includes cases that have been carried forward from previous years) 28 cases were found in favour of the Applicant and 11 cases were found in favour of the Respondent.

Figure 4 – Total Number of Tribunal Applications Received in each Annual Period

250

230

200 187 194

176 164 169

150

100

50

0

Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 (July 05 to (July 06 to (July 07 to (July 08 to (July 09 to (July 10 to June 06) June 07) June 08) June 09) June 10) June 11)

Figure 5 - Percentage Applications by Business Sector 2010-2011

* The Other business activities' sector includes Miscellaneous business activities' and private sector

Education, health and other services'.

** Transport, storage and communications' includes Jersey Airport, Harbours, Postal Administration and Jersey Telecom.

Figure 6 - Percentage Applications by Occupational Classification 2010-2011

* see notes

Figure 7 – Issues Contained In Applications

160

140

120

2005/06 100 2006/07 80 2007/08 2008/09

60 2009/10 40 2010/11

20

0

Unfair Payment of Holiday Pay / Termination No Contract Breach of Minimum No Itemised Written

Dismissal wages Rest Periods of Contract Wage Pay Slip Statement of

Employment Employment

Notes

Standard Occupational Classification (SOC 2000): Example occupations with each category: Managers and Senior Officials

Managers and senior officers in public and private sectors.

Professional

Science professionals, civil engineers, pharmacists, vets, teachers, lawyers, judges, chartered accountants, architects, social workers, librarians, clergy.

Associate Professional and Technical

Science technicians, engineering technicians, nurses, dental technicians, physiotherapists, youth workers, police officers (sergeant and below), artists, actors, graphic designers, journalists, sport coaches, air traffic controllers.

Administrative and Secretarial

Office clerks, secretaries, personal assistants, receptionists, book-keepers, telephonists.

Skilled Trades

Farmers, gardeners, fishermen, mechanics, electricians, telecommunication engineers, computer engineers, bricklayers, plumbers, carpenters, plasterers, tailors, printers, butchers, bakers, chefs.

Personal Service

Nursing auxiliaries and assistants, care assistants, home carers, animal care, leisure and travel assistants, travel agents, hairdressers, nursery nurses, childminders, education assistants, housekeepers

Sales and Customer Service

Sales assistants, retail cashiers, call centre agents, check out operators, customer care occupations, telephone sales person.

Process, Plant and Machine Operatives

Plant and machine operatives, fork-lift truck drivers, taxi cab drivers, chauffeurs, bus drivers, van drivers, construction operatives.

Elementary Occupations

Farm workers, labourers, packers, postal workers, messengers, couriers, hotel porters, kitchen and catering assistants, waiters, bar staff, domestic cleaners, security guards.