A clash of laws: amendments to the Conditions of Employment Law - International Law Office

On May 27 2010 the States approved the preparation of an ordinance to amend the Conditions of Employment (Guernsey) Law 1985. The situation giving rise to the need for the amendment is one with which human resources professionals would be well advised to familiarise themselves.

While Guernsey retains a relatively light touch with respect to employment law, certain employee rights are enshrined in statute. Several of these statutory rights are contained in the Conditions of Employment Law. They include an employee's right to a written statement of his or her main terms and conditions of employment and the right to a statement of pay (ie, a pay slip).

When the law was drafted in 1985, the legislature took the pragmatic step of excluding those employed for less than 21 hours a week from the right to receive this written statement of terms and conditions.

At a time when fewer of the island's workers were employed in office-based roles, where established administrative procedures were the norm, this spared employers a potentially sizeable administrative burden in respect of part-time staff. The provision was amended in 1992 to exclude employees who worked for less than 15 hours a week. This remains the position. However, this position is seen to clash with the provisions of the Sex Discrimination (Employment) Guernsey Ordinance 2005.

The ordinance protects against both indirect and direct discrimination. Indirect discrimination protection makes it unlawful to apply a provision, criterion or practice which applies equally to men and women but might, by its nature, be to the detriment of a larger proportion of one gender than the other.

It is generally accepted that more women than men work for less than 15 hours a week. It is also generally appreciated that this is due to existing societal norms whereby women are more likely to manage childcare responsibilities alongside part-time work.

The net result of this is that fewer women than men have the right to receive written terms and conditions of employment or to receive a pay slip; thus, an undesirable tension is created between the two pieces of legislation.

The Commerce and Employment Department, in consultation with the legislature, identified certain knock-on effects of the exclusion of those working for less than 15 hours a week from these rights:

• Without the right to see their terms and conditions of employment, female employees could be prevented or hindered from pursuing a sex discrimination claim.
• With Guernsey's legislation on the minimum wage also now in force, those working less than 15 hours a week had no right to written confirmation of their 'normal working hours' and rate of pay. This could potentially have made an individual's claim that he or she was being paid less than the minimum wage extremely difficult.

In the United Kingdom, employees enjoy no right to written terms and conditions, irrespective of the number of hours worked.

While this change in the law should be noted, it is unlikely to lead to significant changes in business practice for most businesses. However, the change arises from an interesting example of the interplay between the different laws that impact upon the employment relationship. Occasionally, applying the law will require businesses to balance seemingly conflicting regulations – if in doubt, employers should seek legal advice.

For further information on this topic please contact Gareth Bell at Collas Day by telephone (+44 1481 723 214), fax (+44 1481 711 880) or email (gareth.bell@collasday.com).