Legal update: Zero Hour Contract review [latest]

Viberts Partner Vicky Milner and English Solicitor Rebecca De Freitas, summarise the report and explain its recommendations. 

This report follows Proposition P.32/2021 of the States Assembly, which called for a review of existing employment legislation to ensure the adequate protection of employees working on zero hour contracts and, as needed, the strengthening of the regulation of these contracts.

Summary findings include the following:

1. The Forum endorsed recent legislative changes to ban exclusivity clauses in zero hour contracts.
2. The Forum recommended that an amendment should be made to the Employment (Jersey) Law 2003 (‘Employment Law’) to give employees the right to request an updated written statement of their terms of employment, where an existing statement does not reflect the reality of the working pattern.
3. It also recommended that employers should provide reasonable notice of work schedules and should consider making financial recompense to employees for the late notice cancellation or curtailment of work shifts.
4. It proposed a comprehensive programme of education and awareness-raising of the rights and responsibilities of employees and employers.

In conjunction with this review, the Forum also concluded that the compensation awards available to the Employment Tribunal for breaches of rights under the Employment Law and the Discrimination (Jersey) Law 2013 (the “Discrimination Law”) should be reviewed in a separate consultation exercise.

Among other things, the Forum recommended that:

1. There should be a review of the criteria in terms of financial awards for breaches of certain statutory employment rights, e.g. the failure to provide a compliant statement of terms and conditions. In the Forum’s view, the maximum award of 4 weeks’ pay was an insufficient deterrent to prevent non-compliance by an employer.
2. Similarly, the Forum recommended that:
   • The lower end of the scale for unfair dismissal compensation awards could be reviewed to increasing the starting point for compensation.
   • The £10,000 cap on contractual claims in the Tribunal should be reviewed and perhaps be increased to bring it in line with the Petty Debts Court, which has jurisdiction to deal with claims of up to £30,000.
   • The award available for financial loss and hurt and distress under the Discrimination Law should be reviewed. The maximum amount the Tribunal can currently award is £10,000, with a maximum of £5,000 for hurt or distress (per successful complaint), which the Forum felt was insufficient to persuade employers to take workplace discrimination seriously.

The levels of compensation in respect of the Employment and Discrimination Laws were set some time ago and so a review seems sensible.

It would be  interesting to understand the views of Tribunal members on these proposals, particularly bearing in mind that awards under the Discrimination Law currently tend to be well below the maximum capped levels, leading one to question whether there is an immediate need for change in this regard.

In our experience, the majority of employers are well-aware of the risks of Tribunal claims and the need for balance between rights and obligations is always critical.

Update

The day after Channel Eye published this, Jersey’s Minister for Social Security, Deputy Elaine Millar, said (on 21st June 2023): “I’m very grateful to the Forum for its report and I have decided to accept each of its recommendations. Jersey’s employment legislation must achieve the right balance between employer and employee. As the Forum reports, work needs to be done to improve understanding among employees and employers about their rights and responsibilities. I make it clear in my response to the Forum’s report that there are many ways we can achieve this and we’ll be working within Government and with other partners to make sure we make positive progress during 2023.

“I’ll also seek an amendment to the Employment Law to give employees an additional right to request a variation in their contracts. Such an amendment would enable an employee to ask for a contract of employment which reflects the reality of their working pattern. In its report, the Forum took evidence that some employees on a zero-hour contract were in fact working consistently full-time or part-time hours. This is something a change in the law will help to deal with.

“I’ve also asked the Forum to carry out a consultation exercise on the level of compensation awards which the Employment Tribunal is able to make in cases where a person’s employment rights have been breached. The current award levels have been in place for many years and I’ve asked the Forum to consider whether they’re still adequate. I look forward to receiving its recommendations in due course.”

Vicky Milner, (pictured) Partner at VIberts, has specialised in employment law since 2001. She specialises in high profile and complex matters, including Royal Court appeals of Tribunal decisions and cases involving directors of international trust businesses and other key employees.

Rebecca De Freitas is an English Solicitor in Viberts’ corporate team, advising and assisting on both employment and corporate law matters.