Jersey zero hour contractors (employees) have an advantage over their UK counterparts in that the Employment (Jersey) Law 2003 (Employment Law) already affords them the same rights as other employees.  However zero hour contractors may be disadvantaged by their zero hour contractor label and a lack of certainty as to their hours, their pay and place of work. This may have knock on effects, not only for their own sense of security, but also when applying for a mortgage; banks after all like a safe bet.

Amendment 15 to the Employment Law was approved by the States Assembly earlier this week.  Amendment 15 introduces Article 3A to the Employment Law, affording the opportunity for a zero hour contractor to obtain an updated statement of terms of employment, in circumstances where they have an established pattern of work for 6 months or more.  This opportunity not only provides a sense of security, but may also assist such employees in obtaining a mortgage and/or credit, where previously they wee unable to do so.  For this reason, whilst Article 3A applies to all employees, it is likely to have a greater impact on those who are working on zero hour contracts. 

Employment on what is labelled a “Zero Hour Contract” is not uncommon, for example, where there are no regular working hours and there is no obligation on the employer to provide work, but that work may be provided on an ad hoc basis, potentially at varying locations. 

This is often an accurate description of the working relationship between the parties. There are other cases where, despite what it states in the written statement of terms of employment, the reality of the employment relationship is that the employee is working the same number of hours, at the same time and place on a regular basis.  They have in reality, a settled working pattern. 

Zero hour contractors in Jersey enjoy the same ‘day one’ rights as any other employee. These rights include (but are not limited to) the right to a written statement of terms of employment, to not be dismissed for what is referred to as an “automatically unfair” reason, to statutory paid annual leave, to statutory minimum periods of notice of termination of employment,  to family friendly rights and the right to be paid the minimum wage.  

Zero hour contractors who have sufficient continuity of service may claim unfair dismissal and redundancy pay, like any other employee.  These rights apply regardless of what is written in the zero hour contractor’s statement of terms of employment. 

What is the process for dealing with an application for a new statement of terms of employment?   

Where an employee makes an application under Article 3A, the employer has 4 weeks to consider and respond to the employee’s request for an amendment to their contract.  This timescale may be extended by a further 4 weeks by agreement between the parties.  

The employer may refuse the request in limited circumstances, for example where the requested amendment does not reflect the employee’s settled working pattern, where it would have a detrimental effect of the employer’s business, where the employer has reasonable grounds to believe that the employee’s working pattern will change in the next 4 weeks, or where the employee’s employment is due to end within 4 weeks of the request.  

Where the employer refuses the request for an amended statement of terms of employment, the employee may, within 2 weeks of receiving the notice of refusal, make an application in writing under Article 3B, for the employer to review its decision.  The employer has 2 weeks to respond to that review request, either by agreeing to amend the statement of terms as requested, or alternatively, by holding a meeting with the employee to discuss the request.  The employee has a right to be accompanied to that meeting by a work colleague or union representative.  Where a meeting is held the employer must provide the employee with the outcome within 2 weeks of the meeting date. 

Where an amendment to the statement of terms is approved, the employer must issue the revised statement within 4 weeks. 

What recourse is there in the event of dispute? 

Where the employer fails to comply with their obligations under Amendment 15 or where there is a dispute as to what terms should be included in the statement of terms of employment, the issue may be referred to the Employment and Discrimination Tribunal, who will make a determination as to what terms should be included in the statement.   

The Tribunal may impose a fine of up to 4 weeks’ pay on an employer who contravenes the provisions of Amendment 15.  In certain circumstances this may also constitute a criminal offence, subject to a maximum fine of £10,000. 

How does this differ from a request for Flexible Working under the Employment Law? 

A request under Amendment 15 is for a statement of terms that reflect the employee’s existing working pattern.  Put simply, it is a request for the existing state of affairs to be confirmed in writing. 

An application for flexible working under Article 15A-G of the Employment Law may be made where the employee no longer wishes to work to their existing contractual terms. The employee may wish to reduce their working hours and/or change the times that they work or the place of work (e.g. part-time working /home working). 

Call to action for Employers

Be proactive about reviewing existing statements of terms of employment to ensure that they reflect employees established working patterns. 

As a matter of good practice, update employee handbooks to include reference to an employee’s right to request a statement of terms of their employment which reflects their established working pattern and details the process and timetable for dealing with such requests.  This is likely to reduce the risk of contravening the new provisions. 

Call to Action for Employees

Check your statement of terms of employment to ensure that it accurately reflects the reality of your working arrangements.  If it doesn’t and you have worked to a settled pattern of work for 6 months or more, make an application in writing to your employer requesting an amended statement of terms of employment, stating that it is an application under Article 3A of the Employment Law.  
If you would like to discuss this or any other aspect of Employment Law in Jersey, please contact Claire Kingham on 875875 or email info@benestsyvret.com