Jersey Tribunal Update – First Covid-19 Related Case

Tribunal Round-up – First Covid-19 related cases in Jersey

Over a year on of Covid-19 hitting the shores of Jersey, many employers were forced into making some challenging decisions in order to protect their businesses, including laying off some of their employees. The Jersey Employment & Discrimination Tribunal are starting to see the first cases coming through, and in the case of ‘William Hague-H’lmes’ (the Claimant) versus ‘PG Plumbing (2014) Ltd’ (the Respondent), the issue related to the employers lay-off provision contained in the employee handbook.

The Claimant claimed he was not paid by the Respondent for a period of time he was not working owing to the Coronavirus lockdown and the Respondent’s shutdown resulting from this, which he claimed resulted in a breach of the employment contract.

In response the Respondent accepted that during the relevant period the Claimant was not at work he was not paid, and stated that this was in accordance with a lay off provision contained within his contract.

The facts: The respondent had an employee handbook, which clearly outlined clauses that were both contractual and non-contractual. There was a lay-off provision in the handbook which was noted as being contractual.

  • The employment contract issued to the claimant made a general reference to the contractual elements of the handbook but did not expressly refer to the lay-off clause provision or clause.
  • The respondent confirmed they had a copy of the handbook although it is unclear if this was issued before or after signing the contract of employment.

Key points and outcomes:

  • The Claimants case failed and was dismissed.
  • One of the key issues identified and discussed by the tribunal was that the handbook did not clearly point employees to the lay-off provisions. However, it concluded that the lay-off clause was incorporated into the contract of employment due to the reference made to the contractual elements of the handbook.  The employer could therefore rely on it for the periods when the employee was placed on furlough earlier in the year.

What can employers learn from this case?  

  • Whilst you can include terms in a handbook, it is important to note that they must be labelled as contractual and the relevant sections are to be referenced within the contract of employment. For this particular case, if the lay-off provision had been in the non-contractual section it would not have been enforced;
  • Ordinarily employees need to see the handbook before they sign the contract and employers are wise to review their recruitment process to ensure the Handbook is made available when a contract of employment is issued, and if the Handbook include policies forming parts of the employees contract of employment;
  • Lay-off provisions, if included in a contract, can be upheld by the tribunal to avoid a breach of contract claim if businesses have to temporarily lay-off their staff.

Other Jersey ‘post covid-19’ related cases

NB: The following are highlights of any covid-19 related aspects of the case and do not represent full claim and/or outcomes.  

Clark and Window Glaze Servicing Ltd

This case shows it was fair to enact a redundancy process due to the sharp decline in work as a result of the Covid-19 pandemic.

De Sousa and Caring Homes Healthcare Group Limited

The Claimant, working in a care home, failed to declare a second job which was required as part of the risk assessment for managing Covid-19. The EDT ruled that the Respondent followed a reasonable procedure in its investigations and the decision to summarily dismiss the Claimant for misconduct was within the band of reasonable responses, the complaint of unfair dismissal therefore failed.

Gouveia and Trust Cleaning Services

The claimant alleged that she was constructively dismissed. The claim was that she gave notice of termination of her contract of employment in circumstances in which she was entitled to terminate it by reason of the respondent’s conduct.  The respondent denied the allegation and contended that the claimant gave 2 weeks’ notice of resignation.

The Tribunal found on the evidence that there was no breach of contract, repudiatory or otherwise, on the part of the Respondent.  The Respondent requested the Claimant to take a Covid-19 test in order to protect its staff and customers as the Claimant had been in contact with a colleague whose daughter had been infected.  It was concluded that the Respondent indicated, not unreasonably, that she could not carry out work for the Respondent until she had a certificate of a negative test.  The Claimant, however, resigned the following day.  By reason of the above, the Claimant was not constructively dismissed and the claim was not upheld.

Additional points to note

A number of cases reviewed, although not the main focus of any particular claim, revealed that there had been a failing in relation to the payment of any accrued holiday pay when terminating an employee (and compensation was awarded accordingly), as well as a number of employers failing to follow the requirement (under The Employment (Jersey) Law 2003) to provide employees with an itemised pay statement – where a Tribunal can award compensation of up to 4 weeks pay.

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