Jersey Tribunal cases

William Hague-Holmes and PG Plumbing (2014) Limited [2020] TRE 106

The claimant in this matter was a plumbing apprentice who was not paid whilst he was temporarily laid off as a result of COVID-19 restrictions. The employer had misinterpreted the Government of Jersey’s COVID-19 payroll co-funding scheme (the Scheme), and assumed that the wages owed to the claimant would only be funded for employees earning more than £2,000 per month when in fact the Scheme supports businesses by refunding basic salary costs up to a maximum of 60% of £2,000 per worker (i.e. a maximum payment of £1,200). The Jersey Employment and Discrimination Tribunal held that the Scheme is “an arrangement between the States and the employer” and that they could not give a ruling in relation to the failure of the employer to claim under the Scheme. The tribunal considered the claimant’s contract to see if there had been a breach of contract by the employer for not paying the claimant. However, the claimant’s contract did state that he could temporarily be laid-off without pay, even if it was a short clause that the claimant argued was “hidden away on page 11”.

Notwithstanding this the Tribunal held that on an objective basis the clause has been incorporated into a contract and as such reluctantly decided there had been no breach of contract and the employer was entitled to temporarily lay the claimant off without pay.

Action point: This case is a reminder for employers to make sure that contracts are clearly worded and that any potentially onerous clauses are brought to the employee’s attention. It is also a reminder that the Scheme should be interpreted accurately when considering whether to temporarily lay an employee off. Employers in some industries may also wish to consider introducing a “temporary lay-off” clause into their contracts to protect them in the future in such circumstances.

Nikla Sumesar-Rai and AXA ICAS Limited [2020] TRE 060

The claimant had been employed by AXA ICAS Limited and was dismissed without notice for gross misconduct after issuing a vaccine earlier than what was stated in the employer’s protocol due to the fact that the patient was imminently travelling to a ‘high risk’ area .

No harm was suffered by the patient as a result of receiving the booster early but on January 17 2020, AXA ICAS received a formal complaint from their client, the patient’s employer. An investigation was carried out which concluded that, the claimant had failed to follow the protocol and had “negatively affected AXA’s reputation and client relationships due to the potential high risk of harm to the service user from continued occupational exposure to Hepatitis A, without long term immunity, a potential risk of litigation to the client and medico [sic] legal and ethical implications”.

The tribunal found that a reasonable investigation in the circumstances was conducted and that the decision to dismiss was reasonable. The tribunal decided that the employer’s investigation process was “not flawed or unfair”.

Action point: This case highlights the importance of following policies and procedures when conducting disciplinary/dismissal hearings. In this case the employer was able to successfully defend its position as they followed a fair investigation supported by their employment documents which stated that a deliberate failure to follow protocol could lead to summary dismissal.

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