Frequently Asked Questions: Employment Law

Employment law governs the dynamic relationship between employers and employees, setting the foundation for workplace rights, obligations, and standards. Whether you’re an employee seeking clarity on your rights or an employer aiming to ensure compliance, navigating the complexities of employment law can often feel daunting.

This article addresses some of the most frequently asked questions we receive about employment law. By answering your queries we aim to empower both employers and employees with the knowledge needed to foster fair and lawful workplace environments.

What types of employment and discrimination claims can be brought in the Tribunal?

Employees can bring various types of employment and discrimination claims in the Tribunal.  These include, but are not limited to:

1. Unfair dismissal;
2. Constructive dismissal;
3. Discrimination;
4. Victimisation;
5. Harassment; and
6. A failure by an employer to provide an employee with terms of employment, payslips and notice pay.

 

What is the difference between an unfair dismissal and constructive dismissal?

A dismissal occurs when an employer terminates the employment of an employee. An unfair dismissal occurs when that dismissal is legally ‘unfair’. If a dismissal was not ‘fair’ it will be ‘unfair’. An employer may fairly dismiss an employee if the decision to dismiss was based upon any one or more of the following:

1. The capability (which includes, skill, aptitude, health or other physical or mental qualities) or qualifications of the employee to perform the work they were employed to do so;
2. The conduct of the employee;
3. Redundancy; or
4. The employee could not remain employed without contravening a duty or restriction imposed by a piece of legislation (for instance if an employee lost their residential status).

A constructive dismissal may occur when an employee resigns, with or without giving notice to the employer, because of a fundamental breach of the contract of employment by the employer. A fundamental breach is one which is so serious that the employee is entitled to repudiate the contract.  The employee must not, by words or conduct, accept the employer’s breach of contract if the employee wishes to bring an action for constructive dismissal.

 

 

What characteristics are protected under the discrimination law?

The characteristics currently protected under the discrimination law are: race, sex, gender, gender re-assignment, age, disability and sexual orientation.

A person is regarded as disabled if they have one or more long-term (i.e. it has lasted or is expected to last for more than six months or until the end of the person’s life) physical, mental, intellectual or sensory impairments which can adversely affect a person’s ability to engage or participate in any activity. ‘Long term’ in this context means it has lasted or is expected to last for more than six months or until the end of the person’s life.

 

What forms can discrimination take?

Direct – when someone possesses one or more of the protected characteristics and is treated unfairly as a consequence

Indirect – when a practice, policy or rule is in place that in its application or effect is less fair to a certain group of people.  This can also take the form of failing to provide for reasonable adjustments whether to working practices or alterations to property.

Harassment – unwanted behaviour which an employee may find intimidating, such as violating a person’s dignity, humiliation, or hostility or insolence towards that person. Harassment can occur verbally, in writing, or as a consequence of physical acts.

Victimisation – where an employee is subject to less favourable treatment as a result of having previously made or supported a complaint relating to a protected characteristic.

 

How long does an employee have to bring a claim to the Tribunal?

A complaint must be presented to the Tribunal by an employee before the end of the period of 8 weeks from the date the cause of action accrued.  A failure to do so can result in the complaint being rejected by the Tribunal or liable to being struck out by the Employer.

 

Do I need a lawyer?

No. Both employees and employers can represent themselves (if the employer is a company this will usually be through a director). However, you may choose to have legal representation as the process can be time consuming, stressful and complex for someone who is not familiar with the legislation.

 

How much compensation could an employee receive?

Unfair / Constructive Dismissal – the compensation an employee could receive if successful in a claim of unfair or constructive dismissal ranges from 4 weeks’ pay to 26 weeks’ pay depending on the employee’s length of service.  However, the Tribunal has discretion to award less than the maximum level if it deems it appropriate to do so having regard to the circumstances of each particular case.

Redundancy – the maximum statutory redundancy payment an individual could receive is one week’s pay for each year of the employee’s service.  A week’s pay is capped at £1,000.00.

Discrimination – the maximum compensation an individual could receive if successful in a claim of discrimination is £10,000.00.

If you would like further indication on how much you could receive please use our Compromise agreement calculator.

 

Can a claim be settled out of the Tribunal?

Yes. Typically following submission of a complaint, the Tribunal will refer the parties to the Jersey Advisory and Conciliation Service who offer a free conciliation service. Parties can also engage in direct settlement discussions at any stage of the Tribunal proceedings or in some cases attend a Judge led mediation at the Tribunal.

 

How long does a claim take to be concluded?

The Tribunal aims to resolve all claims within six months of receipt of the Claim Form. Most claims will conclude within this timeframe, but some can continue for longer if they are particularly complex or if a party does not properly engage. The general process of a claim is:

• Claim Form
• Response Form
• Case stayed and referred to the Jersey Advisory and Conciliation Service
• Case Management Hearing
• Final Hearing
• Written Judgment

 

Is there a fee for bringing a claim in the Tribunal and what about costs?

There is currently no fee for bringing a claim in the Tribunal.  If you instruct a lawyer, you will be liable for fees and expenses (such as bundle preparation).  There is currently no costs regime in the Tribunal, meaning that you are not liable to pay your opponent’s fees if you lose. Equally, you will not recover your costs and expenses if you win. However, a limited costs regime is currently in consultation for vexatious or unreasonable claims.

 

Related information

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Employment law services

About the Tribunal

Compromise agreement calculator