Quite a lot actually, as it turns out, and this can have significant implications for Jersey based employers if they get it wrong. In the recent Jersey Employment & Discrimination Tribunal decision of Docherty v Bespoke Treasury Services, the Tribunal looked at a case where an employer gave oral notice in a pub on 25 October and followed it up in writing at a later date stating that the termination date was 17 October.
From the facts, it was unclear if the employee was being summarily dismissed or being placed on notice. The employee was paid their salary and benefits for a further two months. The employer argued notice was given with effect from 17 October, or at the latest 25 October. The employee successfully argued that the notice had been ambiguous, and that it expired three months after it was given, ie on 25 January. This meant the employee qualified for protection from unfair dismissal.
The key points that come out of the judgment are:
1) If an employer merely states that they are paying an employee in lieu of notice (PILON), this is ambiguous and could allow the employee to argue that their full notice period continues to run (which could trigger the accrual of statutory rights, greater compensation for unfair dismissal, or contractual payments/bonuses). PILON is not the same as summary dismissal and does not necessarily terminate the employment relationship;
2) Any ambiguity will be interpreted in favour of the employee - the Tribunal will interpret the Employment (Jersey) Law 2003 so as to protect employees;
3) If an employer wants to summarily dismiss an employee they need to be clear about this, and clear on the date that employee's employment is terminating;
4) When sending notice in writing, this takes effect the date the employee sees the notice, not when it is sent.
5) You cannot retrospectively set or create a termination date. This is a factual question and the Tribunal will look at the facts.
As always, we recommend taking legal advice when before terminating an employee, particularly when they are nearing a career milestone.
A payment in lieu of wages does not necessarily mean that there has been a summary dismissal. An employer can dismiss from a future date and offer to pay the wages in lieu of notice. In such a case the employment ends at the end of the notice period even though the employee has been paid in lieu. Whether the employee was dismissed summarily or not depends on the correct construction of the termination letter.