Employment update: Spring 2025

Welcome to the latest edition of our employment update where we round up key employment developments across the Channel Islands.

We're delighted to start this edition with the news of Rachel Guthrie's promotion to partner. Rachel is Head of Employment in Guernsey and well known to many of you.  Her promotion recognises her distinct skill and reputation in our industry and further enhances the strength of our team. Congratulations Rachel!

Legislative updates

The coming months will see some significant changes. We've set these out in more detail below. If it's useful to discuss any of the upcoming changes with the team, do get in touch.

Changes to Jersey compensation awards

Compensation awards in Jersey are being overhauled this year. On 22 April 2025, the States Assembly approved changes to legislation which will bring about the following entitlements:

Discrimination

• Maximum compensation of £30,000 or 52 weeks' pay, whichever is the lesser, for a complaint of discrimination that has been upheld.

Unfair dismissal

• Increased compensation for unfair dismissal for employees with more than 10 years' and 15 years' service, to allow an award of up to 31 weeks' pay and 36 weeks' pay respectively.
• Power for the Tribunal to uplift the maximum unfair dismissal award (at any length of service) by 25% where it considers it reasonable to do so, having regard to the employer's conduct.

Breach of contract and statutory rights

• Entitlement to a maximum of 8 weeks' pay for breach of statutory rights e.g. a failure in respect of a flexible working request or contravention of parental leave rights.
• An increase in the Tribunal's jurisdiction to £30,000 for breach of contract claims.

These changes mark a notable development in employment protections in the Island. The date of implementation is yet to be determined but we do not anticipate any significant delay.

Entitlement to written reasons for dismissal

As part of the same package of reforms, the States Assembly in Jersey has voted to give individuals a 'day one' right to written reasons for dismissal.

Unlike the other jurisdictions, there is no requirement for the employee to ask for reasons; the employer is simply required to provide them. The reasons for dismissal must be provided in writing, signed and dated by the employer and given to the employee not later than 7 days after the date of the employee's last day of employment.

The requirement to provide written reasons will come into effect in the coming months, in line with the compensation award changes. 

Proposed additions to the Guernsey Discrimination Ordinance

The Prevention of Discrimination (Guernsey) Ordinance 2022 came into force in October 2023 in respect of the protected grounds of race, disability, carer status, sexual orientation, and religion or belief. The Committee for Employment & Social Security is continuing to progress Phase 2 of the legislation, by extending the Ordinance to provide protection from discrimination, harassment and victimisation on the grounds of age, and by incorporating into the Ordinance the grounds covered in the existing Sex Discrimination (Employment) (Guernsey) Ordinance, 2005, such as sex, marriage, and gender reassignment (with possible reframing of those grounds).

In respect of age discrimination, the earliest 'in force date' is specified to be Q2/3 of 2027. It is recognised that unlike the existing protected grounds (race, disability etc) there are many instances where there are good reasons for treating someone differently due to their age. Objective justification of direct age discrimination will therefore be permitted so employers and service providers can treat people differently because of their age, where doing so can be shown to be a proportionate means of achieving a legitimate aim. It should be noted that UK case law has shown the importance of evidencing any such legitimate aims and also considering all alternatives (particularly around fixed retirement ages which are now more rarely utilised in the UK). There will also be various exemptions, for example, in respect of different rates of pay/terms based on length of service and in respect of pension schemes.

Proposals to extend the protections in the current Sex Discrimination Ordinance will be deferred until the next term of government.

The Secondary Pensions (Guernsey and Alderney) Law, 2022

The Secondary Pensions law requiring employers to enrol designated employees into certain pension schemes came into force for employers with more than 26 employees from 1 July 2024 and thereafter has come into force for smaller work forces on a graduated basis. It will come into force for employers with 2-5 employees on 1 July 2025, and for all employers from 1 October 2025.

Migration controls in Jersey

On 1 April 2025, the States Assembly voted to implement an overhaul of the current migration controls framework.

The new legislation provides an updated framework for how a person achieves a residential and housing status, how a status can be lost or revoked, and the rights that each status confers to occupy accommodation, enter into property transactions, and to access the job market in Jersey.

Some of the key changes affecting workforce matters are:

• Entitled for Work status on the grounds of relationship has been amended such that an eligible partner is able to maintain their Entitled for Work status should their partner lose their eligible status (e.g. by reason of redundancy) or that partner no longer remains ordinarily resident in Jersey (e.g. following a breakdown of the relationship);
• Loss of Entitled for Work status is more prescriptive in that this status would be lost if a person is absent from Jersey for 12 months or more (either continuously or in aggregate) and not ordinarily resident in Jersey during the absence;
• Registered status has been renamed as Standard status, this is to avoid any confusion with the housing qualification of Registered accommodation; and
• Persons who have built up a period of ordinary residency whilst holding Registered status would continue to have that time considered towards Entitled for Work, Entitled and Permanent Entitled status.

You can read more about the draft Regulations here. The Regulations are expected to come into force on the same date as amendments to the framework legislation (the Control of Housing and Work (Jersey) Law 2012) will take effect, but a specified date is not yet confirmed.

Jersey gender pay gap

Statistics Jersey published its report concerning the gender pay gap on 12 March 2025 reporting an overall gender pay gap of 6.3% as at June 2024 in relation to the median hourly rate for males compared to females (£22.27 for males compared to £20.95 for females).

The other key summary points to note were, as at June 2024:

• There was a 7.8% gender pay gap in terms of the 12-month average median hourly rate (£21.38 for males and £19.83 for females) which was 1.2% lower than June 2023;
• The over 40's age group saw the highest gender pay gap than the overall average;
• The information and communication sector had the highest gender pay gap of 28.2%;
• The private education, health and other services sector had the lowest gender pay gap of 0.1%; and
• Males consistently earned more than females in the financial and legal activities sector, however, the pay gap had shown signs of narrowing in this sector since January 2022. Conversely, non-finance private sectors had seen relatively little change in the gender pay gap over the same period.

You can read further about the report here.

Mourant recently published its 2024 Gender Pay Gap Report. Take a look here.

Recent case updates

The Jersey Employment and Discrimination Tribunal continues to be busy. Over the last few months, we've seen a continued increase in contentious employment instructions with a particular rise in discrimination claims. That trend is recognised in Jersey in the JACS Annual Report 2024, which noted a 30% increase in the number of Jersey Employment and Discrimination claims referred to JACS. You can read the report here.

We've summarised below some of the more interesting recent judgments.

Vincenzo De Tommaso v (1) The Greenhill Consultancy Limited t/a Meat and Eat (2) Shane Kennedy [2023] TRE 185A

This case is notable as the Tribunal considered the compensatory bands to be awarded in a successful claim for discrimination.

By way of background, where the Tribunal finds a complaint to be well-founded, it can currently award a maximum of £10,000 of compensation including a maximum of £5,000 for hurt and distress. The Tribunal has interpreted the provision so that the maximum award of £10,000 applies per incident of discrimination

In this case, the Tribunal concluded that the Claimant had been subjected to continuing racial harassment. In assessing the level of compensation, it held the treatment to be in the top band in that there was a lengthy campaign of discriminatory treatment. As such, it awarded the Claimant the maximum amount of £5,000 for hurt and distress in respect of two separate incidents plus £5,000 for financial loss, such that the total compensation to be awarded to the Claimant was £15,000.

The Tribunal also held the employer to be vicariously liable for the acts of its employee and declined to apportion liability but instead found both the employer and a key senior individual to be jointly and severally liable for the compensation awarded.

Florin Stoica v Merchant Vintners Limited T/A The Beach Club & Others [2024] TRE 178(A)

This case serves as a helpful reminder in relation to without prejudice discussions. In essence, this judgment (which also concerned a leave to appeal application) required the Tribunal to decide whether or not a conversation had taken place without prejudice (as opposed to on an open basis, as the claimant employee had alleged).

In refusing leave to appeal, the Tribunal held that the transcript of the without prejudice discussion showed that the employee was asked and confirmed that he understood the meaning of without prejudice, and in any event the effect of without prejudice was explained to the employee with the employee confirming his understanding and willingness to proceed on that basis.

The Tribunal held that equality of arms was of no relevance to without prejudice discussions as disputes commonly involved without prejudice discussions to see whether a negotiated settlement might be available, and this was encouraged and the policy of the Tribunal and JACS.

The Tribunal also rejected claims that the employee was 'an innocent abroad' in litigation having disobeyed an instruction not to bring a recording device to the meeting (and acted dishonestly about having done so) and transmitted the product of that misconduct to his representative in litigation.

C v R [2024] TRE 145

The Tribunal recently considered whether a child's exclusion from nursery because of epilepsy amounted to a successful claim for discrimination on the basis of something arising as a consequence of a disability and whether there was a failure to make reasonable adjustments.

The Tribunal determined that the child was not allowed to continue at nursery due to the nursery's concerns about the impact that the seizures the child suffered, as a consequence of epilepsy, had upon the child's wellbeing, health and safety and the safety of the child's peers, with the Tribunal finding this to be a valid aim.

The Tribunal did not find any intention to discriminate, with the nursery believing that they were acting in the best interests of the child when deciding to exclude the child. However, it found that there were other more proportionate measures that could have been taken or offered to deal with those concerns prior to the exclusion.

The Tribunal dismissed the claim for failure to make reasonable adjustments and take reasonable steps in providing an auxiliary aid, as it felt the proper claim was as referenced above. However, the Tribunal found that excluding the child from nursery was not a proportionate means of achieving a legitimate aim and therefore held that there was discrimination arising as a consequence of disability.

Whilst the Tribunal found that some detriment had been caused to the child in that they were removed from a nursery which they were thriving at, the Tribunal did not find any hurt and distress to the child. It therefore held that it was not appropriate to make any financial award. It did, however, make a declaration to the effect that the child had the right not to be excluded from nursery because the child suffered seizures as a consequence of epilepsy unless to do so could be shown to be a proportionate means of achieving a legitimate aim.

Tracey Vincent v Milho Catering (2003) Ltd T/A The Aurora Benfica Sports Bar [2024] TRE 250

The Tribunal recently considered a conduct dismissal and whether the decision to dismiss was reasonable given the Claimant had gone 'AWOL' in the context of previous problems with attendance.

In dismissing the Claimant's claim, the Tribunal held that the Respondent followed a reasonable disciplinary process and acted reasonably in treating the conduct as a sufficient reason for dismissal.

Whilst the Tribunal commented that the decision to suspend without pay was contrary to the Respondent's disciplinary policy, there was no evidence that the suspension was not a neutral act. Even though the suspension would have been in breach of contract because it should have been paid, the Tribunal was satisfied that it did not evidence a pre-determined decision to dismiss and so did not render the process followed unreasonable.

In concluding that the dismissal was reasonable in all the circumstances, the Tribunal noted that complying with a contractual obligation to inform an employer of possible absences is not something that required counselling or training. It held that the impact of the Claimant's absence on the Respondent was substantial and that there had been a history of absence issues along with informal warnings and discussions. The Tribunal was therefore satisfied that the Respondent had followed a reasonable process given its size and administrative resources.

Joana Goncalves v (1) Voisins Department Store Limited and (2) Tony Riley [2023] TRE 191B

The Tribunal recently granted leave to appeal to the Royal Court in relation to a judgment which rejected various claims of discrimination and claims of constructive and wrongful dismissal, arising from a disciplinary process and termination of employment.

Leave (or permission) to appeal can only granted where a question of law has arisen that would lead to the original decision of the Tribunal being set aside.

In this case, a number of grounds of appeal were not granted, but it was noted that the Tribunal which heard the original claims had made a finding as to what information had been available to and seen by the parties during the internal disciplinary process, which (it transpired) was inaccurate.

It was deemed to be arguable that the Tribunal's error may have led to a different conclusion on the conclusions relating to the disciplinary process, and accordingly leave to appeal was granted.

Other news

Our recent work has included:

• representing a number of professional services businesses in complex employment and discrimination tribunal proceedings involving multiple respondent parties;
• supporting a group of senior employees facing unplanned exits;
• assisting with the establishment of an independent entrepreneurial venture;
• advising on an injunction application relating to a cross-border employment and partnership dispute;
• preparing and advising on terms relating to executive equity and share options issues.

In March 2025, the Guernsey employment team hosted a seminar on the topic of Preventing Sexual Harassment in the Workplace. A 2023 poll by the Trades Union Congress found that nearly three in five women (58%) had experienced sexual harassment, bullying or verbal abuse at work. Our event considered protections under Guernsey law, recent changes in the UK including the positive legal duty to prevent sexual harassment of workers, and steps employers in the islands can take. The impacts of sexual harassment in the workplace are serious and wide-ranging, affecting morale, stress levels, absenteeism, turnover, reputation and a business's ability to comply with its regulatory and ESG obligations. Attendees recognised the benefits of taking steps to develop effective policies, engage with staff, undertake risk assessments and implement reporting and training on handling harassment complaints.

And finally…

Lloyds Banking Group has kindly shared with us a Disability & Neurodiversity training module which it has created. Initially developed for its colleagues and line managers, to support Lloyds Banking Group in creating an inclusive workplace, the Group has now launched a public facing version of the module which any individual, business owner or organisation can access. You can access the training here. We found it very impactful and would encourage you to take a look.