I have written a letter (below) to the Minister raising my concerns. But before we go onto that, I think it is necessary to briefly ask: what is the common ground and what is the problem, if any, that we are trying to solve?
Unfair dismissal is not something that we should be encouraging.
I hope the above statement is something that any fair minded person can sign up to.
However, it would seem that the decision of the Minister flies in the face of this self-evident truth. If the Minister's proposal is implemented unchallenged and unamended, unfair dismissal will become more common, as the employer will have 12 months to dismiss unfairly, not six.
The Ministers rationale for the move is to 'encourage employers to take on more staff' and ' remove one of the perceived barriers to employing staff'.
So my questions remain: is this the best way to do this? What is the common ground? What are we trying to acheive?
Well, let's start with the law: Article 61 of the Employment (Jersey) Law 2003 states:
'An employee shall have the right not to be unfairly dismissed by his or her employer.'
So, this is pretty clear. However, currently, you cannot challenge a dismissal you feel to be unfair until you have been employed for 6 months (with some exceptions - see below). This 'right' is therefore being futher restricted if we extend the qualification period to a year.
To put the other side of the argument, it is my understanding that some employers think that (1) the process which one has to go through to dismiss an employee who is (a) either not performing well enough or (b) not suited to the job is too onerous; warnings need to be given, and due process observed, etc.
(2) There is also the perception that on occasion vexatious claims can be made against the employer and that the agreived party has 'nothing to lose' by making a complaint. It would be interesting to get the stats and more information on this, but it seems to me that if this is a genuine concern, there would be other ways to address this issue than by extending the qualification period. It is a blunt tool which does not differentiate between legitimate claimants and vexatious ones.
It seems to me, if a more acceptable definition of what constitutes 'unfair dismissal' could be agree and an acceptable way of ensuring fair safeguards and process for both parties, then unfair dismissal could be effectively prohibited from day one. I am certain that no reasonable employer wants to act in an unfair way.
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| Social Security Minister, Deputy Susie Pinel |
So without further ado, here is my open letter to the Social Security Minister:
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Dear Minister,
I was concerned to learn via the press release yesterday
that the ability for an employer to dismiss someone unfairly, without challenge
from the employee, is to be made easier. And that this significant and controversial
decision should be made solely by
Ministerial decision and not the Assembly as a whole.
There remain sound reasons why such a decision – with the
potential for both intended and unintended consequences – should be subject to
scrutiny of the wider membership as well as, potentially, official scrutiny
from the relevant panel.
Some points for consideration are as follows:
-
The second, third and fourth elements of the discrimination law have not yet been
brought forward, so whilst it will still be possible for a dismissal on the
grounds of racial discrimination to be challenged as unfair (and illegal),
there will be no such possibility for a woman who is dismissed after 11 months
because she becomes pregnant. Employers will still be able to be sacked on the
basis of their gender, age, disability or sexual orientation – now for up to a
year.
-
As such, comparisons with the Northern Ireland
and the UK (which has had discrimination legislation for 4 decades) does not
tell the whole story.
-
Your statement says that you are ‘confident that
a one year qualifying period will encourage employers to take on more staff.’
However, there is no real evidence has been provided to suggest that this will
be the case.
-
Similarly, your press release talks about
removing one of the ‘perceived’ barriers to employing staff, without
scrutinising whether that perception is a valid one.
The reality of your proposals is that it will make it easier to dismiss an employee, without due process, for up to a year on grounds which any fair-minded individual might term ‘unfair’.
This will not affect good employers, but it will make life
easier for less professional employers to tout best practice, without any
recourse from the worker.
As such, I would ask you:
1)
to consider extending the criteria for which a
case may be taken to the Employment tribunal from day one (without a qualifying
period) to include other appropriate provisions (including those listed above).
2) to
bring this proposal to the States, with a full report and proposition, for the
consideration of the Assembly as a whole.
Kind regards,
Montfort
Deputy M. Tadier
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Press Release from the Minister - 5 December 2014
