Jersey's employment law regime has much in common with its near neighbour Guernsey, and also the UK. So much of our legislation is modelled on UK law. There are however some differences and one of those is holiday entitlements.

In Board v Tenby [2021] TRE 030 the Tribunal looked at entitlement to paid bank holidays under the Employment (Jersey) Law 2003 (EJL), and this point is important for employers to consider when reviewing their contracts. There is another point in Tenby that I think is more interesting and of wider practical impact, which is how long an employee has to bring a claim for unpaid holidays.

Holidays

In Guernsey they don't have any statutory holidays, so holidays are dealt with purely in contracts of employment. In the UK the holiday entitlement is drawn from EU law, which was never applicable in Jersey. Therefore simply modelling UK holiday policies into Jersey does not work.  Jersey has its own statutory entitlement under the EJL: a minimum of two weeks paid leave and paid leave on any public holidays in Jersey where those holidays fall on an employee's ordinary working day (so this year Liberation Day was not a holiday but the Corn Riots will be for the majority of employees). Employers should make sure holiday terms in contracts or policies are updated to reflect current Jersey law.

One issue that has not been determined previously is entitlement to paid bank holidays for employees working under a zero hours contract or working variable hours or shifts. The key points are:

1) The Tribunal will look at the substance of a contract and not its form. This case involved a zero hours contract but it was operated more like a contract of employment;

2) Entitlement to paid bank holidays arises where an employee ordinarily or normally works on that day. 

3) A shift worker who is not scheduled to work on a bank holiday is not entitled to be paid a day's leave or to have a day in lieu as they are not required to work that day. 

The Tribunal recognised that this might be harsh, but was applying the express wording of the EJL. It may be worth watching this space though as the judgment seems to invite the States of Jersey to review this issue.

Limitation - how long does an employee have to bring a claim?

So this may seem a tangential point, but it is fundamental and is another area where Jersey law differs from the UK position. Most employers are familiar by now with the strict time limit for bringing unfair dismissal claims under the EJL, ie within 56 days of the termination date, or discrimination claims, ie within 56 days of the act. These are expressly contained in the relevant laws. Similar time limits apply to a number of other claims including flexible working, statement of main terms, weekly rest periods, parental leave.

However, the EJL contains no time limits for bringing certain other claims including a claim for holiday pay or a claim for statutory notice pay. 

One view taken by practitioners in Jersey was that these were contractual claims, as the employment relationship is one that is founded on contract. The EJL supplements that contractual relationship but does not replace it. If that was the case then the ordinary limitation period of 10 years would apply.

The Tribunal has taken a different view. The Tribunal has held a claim for holiday/bank holiday pay is based on a statutory right, and so employees have only 3 years to bring a claim.

This issue was not subject to detailed legal arguments as neither party was legally represented so it may be subject to challenge down the line. But as it stands this is a very helpful decision for employers as it limits the exposure to historic holiday and bank holiday claims from 3 years to 10 years.