Jersey Employment Tribunal: Annual Report 1st July 2011 to 30th June 2012.

Jersey Employment Tribunal

Annual Report

1 July 2011 – 30 June 2012

Jersey Employment Tribunal Annual Report 2011/12

This is the seventh Annual Report of the Jersey Employment Tribunal and covers the period 1 July 2011 to 30 June 2012.

Table of Contents

INTRODUCTION  3

CHAIRMAN'S COMMENTS  4 Membership of the Tribunal  4 Legislative Developments  4

Discrimination Law   4

Redundancy Law   4

Failure to provide a contract of employment or wage slip  5 Administration  5

Tribunal staff  5

Providing a user friendly service   6

Tribunal Members' training  6

Website  6 Tribunal procedures  6

Case Management Hearings  6

Strike out application  7

Tribunal hearings   7

TRIBUNAL STATISTICS   8 Complaints received by the Tribunal   8 Issues identified in complaints  10 Tribunal hearings   11 Outstanding complaints from previous reporting periods  12 Outcomes of complaints  12 Compensation awards  13

MEMBERSHIP OF THE JERSEY EMPLOYMENT TRIBUNAL 2011/12  14 CONTACT DETAILS  15

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 1 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 the panel. 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

Chairman's Comments

Membership of the Tribunal

I was appointed as Chairman of the Tribunal on the 1 June 2012 upon the resignation of Advocate David Le Quesne. Advocate Le Quesne was the founding Chairman of the Tribunal and I am grateful to him for establishing the Tribunal service during his seven year term.

Following my appointment as Chairman, the position of Deputy Chair became vacant. There were also three vacancies for side members as a result of two vacancies being carried forward from the previous reporting period and the resignation of Mrs Kelly Flageul. I am grateful to Mrs Flageul for her service of almost seven years.

Following an open recruitment process overseen by the Appointments Commission, I am pleased to report that four new members were appointed to the Tribunal during 2012:

1. Advocate Claire Davies was appointed as Deputy Chairman on 1 June.
2. Mr Ian Carr was appointed asan employer representative on 1 February.
3. Mr Timothy Allen was appointed as employer representative on 1 April.
4. Mrs Angela Swindell was appointed asan employee representative on 1 February.

I was delighted that Susan Armes and Alan Hall requested that their terms on the Tribunal be extended to take advantage of the full 10 years tenure. There are currently no vacancies for Tribunal members. Details of the Tribunal members are set out on page 14.

Legislative Developments  

Discrimination Law

There appears to be a real determination to introduce Discrimination legislation in Jersey and the Tribunal has been actively involved in reviewing the proposals and advising upon the impact of this new law upon the work of the Tribunal. The Tribunal has recently undertaken an informal survey to assess future workload in order that the appropriate resources can be put in place to meet demand from our users.

Redundancy Law

During the period of this Report, the full extent of the provisions regarding Redundancy contained in the Employment Law have been enacted by the States so that employees with 2 years' continuous service are entitled to redundancy pay. In addition, the collective consultation requirements of the Employment Law, where an employee proposes to make 12 or more employees redundant within a 30 day period, are now in force. Whilst there can be no doubt that the number of redundancies in the island has increased due to the recession, the Tribunal has received very few claims concerning an employee's entitlement to a redundancy payment.  In order to reflect the full provisions relating to redundancy contained in the Employment Law, the Tribunal has updated its Complaint form (known as a JET1) and Response form (known as a JET2).

Failure to provide a contract of employment or wage slip

Following a Royal Court decision in CI Fire & Security v Browning (2008), it has not been possible for the Tribunal to impose fines upon employers who fail to provide their employees with contracts of employment or wage slips. The Tribunal is very concerned that these important and fundamental principles of employment law should carry no sanction and has discussed the manner in which this imbalance may be addressed with the Social Security Department. It is hoped that the Minister for Social Security will take appropriate action to address this.

Administration

As a court of law, the Tribunal is independent of the States of Jersey. However the Tribunal has important links with the Social Security Department and the Judicial Greffe. The Minister for Social Security is responsible for recommending the appointment of Tribunal members, employment law policy and new employment and discrimination laws to be administered by the Tribunal. The Judicial Greffe is responsible for the administration of the Tribunal and has appointed an Assistant Judicial Greffier to oversee the administration of the Tribunal.

Tribunal Staff

Two officers of the Judicial Greffe, Mrs Louise Cave and Mrs Jo Hickey, undertake the role of Registrar of Appeals and Tribunals (the Registrar') on a job share basis with the assistance of a part-time receptionist/administrator.

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

The Registrar's duties in connection with employment legislation include arranging hearings, assisting the parties in regard to tribunal procedures and providing general information to members of the public. The Registrar has no direct role in the legal proceedings before the Tribunal and cannot provide legal advice, direction, views or opinions on matters relating to proceedings and have no influence over them. The role of the Registrar is to work for both parties and the Tribunal in an impartial manner.

Providing a user friendly service

We are aware that we have a responsibility to ensure that our documentation and terminology is easily accessible to all parties. We recognise that some of the Tribunal's users do not speak English as a first language and we will provide interpreters at any of our hearings, at our cost, as required. During this reporting period, 19 parties required an interpreter. In a step to making our service even more accessible, we intend to produce documentation in the Polish and Portuguese languages.

The Tribunal strives to deal with its cases using non-legalistic terms so that parties feel confident in representing themselves. The Tribunal does not award legal costs at the end of a hearing and each party must therefore bear any costs they have incurred. The majority of complainants appearing before the Tribunal are unrepresented. This is in accordance with our aim of providing swift, accessible, cost effective decisions to employment disputes.

Tribunal Members' Training

On the 3 February 2012 the Tribunal members received training on Tribunal panel skills. This course was designed as a refresher for existing members and as an introduction to these important skills for new members.

Website

I am aware that the Tribunal's website is not user-friendly and the information is quite difficult to find and decipher. The Tribunal is actively seeking to improve this important resource for its users. Until this issue has been rectified, interested parties are encouraged to contact the Registrar directly, or a professional adviser, for information about the Tribunal's procedures. The majority of Tribunal decisions are now published on the Jersey Legal Information Board (JLIB) website and persons wishing to access a previous decision of the Tribunal are encouraged to use that website www.jerseylaw.je/Judgments/JET.

Tribunal procedures

The Tribunal looks to the Judicial Greffe for guidance in respect of setting its procedures. For example, following a request from the Tribunal, the Judicial Greffe prepared a procedure to be followed by complainants in respect of an appeal to the Royal Court from the Tribunal, a process which is not established in the existing employment legislation. In addition, the Judicial Greffe has worked closely with the Registrar in order to set out procedures to ensure that casework is dealt with effectively and in a timely manner.

Case Management Hearings

In order to improve the efficiency of our service, the Tribunal has introduced a system whereby a Case Management Meeting (CMM) will be held in connection with most complaints to the Tribunal and before the main hearing is held. These meetings are short, fairly informal hearings of the parties with the Tribunal Chairman or Deputy Chairman, where the complaint and response are reviewed for administrative purposes with the aim of ensuring that the issues of dispute are clearly identified and understood by the parties and the path towards the hearing date is clearly identified. Experience has shown that the information contained in the complaint and response forms can be incomplete or inconsistent which can have an adverse affect on the course of the final hearing if it is not clarified at an early stage.

At the CMM, directions are given by the Chair for the parties to seek to resolve certain issues before the main hearing and also to attend to matters such as the exchange of evidence or the involvement of witnesses. A date for the main hearing will also be set at the CMM although sometimes it becomes apparent that an Interim Hearing has to be held before the main hearing in order to resolve a matter of law which is directly relevant to the complaints made, for example whether the complainant is an employee or not. The Tribunal is also aware that the parties have usually not met since the termination of employment and the forum of a CMM can provide the basis for a future conciliation. Once a hearing date has been set, a complaint will be case managed by the Tribunal office in order to ensure that the hearing date is not lost due to poor preparation of the case for hearing. In addition the Chair will actively case manage complaints that are  complicated,  involve  multiple  claims,  or  where  the  parties  appear  to  be particularly antagonistic to each other.

Strike out application

It is possible for a party to make an application to the Tribunal for a complaint made against it under the Employment Law to be struck out (cease to exist) at an early stage if such party believes the complaint to be vexatious in nature or to have no reasonable prospect of success at a full hearing. Where such an application is successful, this saves the respondent the time and possible expense of defending a claim which is unfeasible at a full hearing. However, a good reason for such application must be shown; it is not enough to be offended or insulted that a complaint has been made.

Tribunal hearings

It generally takes about eight months for a case to reach a full hearing following the filing of the response form. However, if there are special circumstances in which a party needs to have their case fast-tracked because, for example, their former employer is in liquidation and they need to register the Tribunal's decision with the liquidator, their complaint can be progressed more quickly.

All decisions of the Tribunal, following an Interim or Full hearing, are given in writing stating the reasons for the decision made. The Tribunal endeavours to release its decision to the parties within 2 weeks of the hearing date.

It is intended to install recording equipment in the Tribunal rooms so that a recording of all proceedings is maintained. I welcome this advancement.

Nicola Santos-Costa

Jersey Employment Tribunal Chairman 25 October 2012

Tribunal Statistics

Complaints received by the Tribunal

During the period 1 July 2011 to 30 June 2012, the Tribunal received 178 complaints,  16  fewer  complaints  than  in  the  previous  reporting  period,  a decrease of 8 percent.

The  Tribunal  received  2  more  complaints  in  this  reporting  year  than  it  had received during its first year of operation (2005-2006).

Figure 1 – Total number of complaints received by the Tribunal in each annual reporting period

250 230

194

200 176 164 187 169 178 150

100

50

0

2005/06 2006/07 2007/08 2008/09 2009/10 2010/11 2011/12

During  this  reporting  period,  12  out  of  the  total  178  complainants  had representation; in 9 cases this was legal representation and in 3 cases this was trade union representation.

The complaints were made by employees across a wide spread of Jersey's employment sectors and occupations.

Figure 2 – Complaints to the Tribunal, as a percentage of the total number of complaints, broken down by the business sector in which the complainant worked.

Other business activities* Construction

Hotels, Restaurants and Bars Wholesale and Retail

Financial Services Transport, Storage and Communications** Public sector

Electricity, gas and water

0% 5% 10% 15% 20% 25% 30% 35%

*  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 3 - Complaints to the Tribunal, as a percentage of the total number of complaints, broken down by the occupational classification of the complainant

(Based on the Standard Occupational Classification (SOC 2000))