06 December 2014

Unfair Dismissal

As Jersey's new Social Security Minister proposes extending the 'qualifying period' for unfair dismissal from 6 months to a year, the questions surrounding workers' rights on the one hand and burdens placed on employers on the other once again come into question.

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.

Social Security Minister, Deputy Susie Pinel

So without further ado, here is my open letter to the Social Security Minister:


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,


Deputy M. Tadier

Press Release from the Minister - 5 December 2014

Embargoed until 00.01 hours on 5 December 2014
5 December 2014

Minister changes rules for unfair dismissal claims

The Minister for Social Security has decided to extend the qualifying period for unfair dismissal complaints from six months to one year.

Currently, an employee who feels that they have been unfairly dismissed may make a complaint to the Employment and Discrimination Tribunal if they have 6 months’ service with their employer. The Minister has decided that, from 1 January next year, employees must have one year’s service before they are entitled to make a complaint.
The change will only apply to new jobs that start on or after 1 January 2015. Employees who already have a job will retain the right to claim unfair dismissal after 6 months’ continuous service.
Minister for Social Security, Deputy Susie Pinel, said "I am confident that a one year qualifying period will encourage employers to take on more staff and will make a real difference to locally-based small businesses. The additional six months to assess whether a person is right for the job should increase the number of employers who are willing to give a local jobseeker a chance through one of our Back to Work initiatives. I also believe that this change has the potential to motivate employers to offer more permanent terms and conditions of employment to employees, rather than entering into casual staffing arrangements."
The change has been endorsed by the Council of Ministers. The Chief Minister, Senator Ian Gorst commented, "During the elections, I pledged to support local businesses and I have made it clear that one of my priorities as Chief Minister is to promote growth and create employment opportunities. By extending the qualifying period for unfair dismissal claims - to a period that is in line with our competitor jurisdictions - we are sending a positive signal to businesses and removing one of the perceived barriers to employing staff. We need to boost growth, and to do that we need to get more people into work. This amendment will help us achieve that priority."


Notes to Editors

1. The qualifying periods for protection against unfair dismissal in other jurisdictions are;

 One year in the Isle of Man
 One year in Guernsey
 One year in Northern Ireland
 Two years in the UK
2. Employees will continue to be entitled to take an unfair dismissal complaint to the Tribunal from day one of employment in certain circumstances. There is no requirement for an employee to have a qualifying period of service in any the following circumstances;
 dismissal for asserting a statutory right
 dismissal for being or proposing to become a member of a trade union
 dismissal for representing or proposing to represent an employee in a disciplinary or grievance hearing
 selection for redundancy on grounds related to union membership or activity, and
 where the reason for dismissal is a prohibited act of race discrimination.

1 comment:

  1. Seems a fair assessment to me Monty. Howver maybe it is better (for a legal effectiveness perspective) to determine what is fair dismissal. To me a fair dismissal would include "I'm sorry I can no longer afford to pay your wages because the government has screwed up the economy, so I am terminating the contract in four weeks time."