Subject-Matter Index

Adjudication procedure. See Employment & Discrimination Tribunal

Appeal against decision of GCRA. See Restraint of competition—appeal against decision of GCRA

Appeals. See Employment & Discrimination Tribunal—appeals. Termination—unfair dismissal

Burden of proof. See Termination—unfair dismissal

Civil servants. See Redundancy—civil servants

Company en désastre. See Employment & Discrimination Tribunal—naming of parties. COMPANIES (Désastre)

Company in administration. See Employment & Discrimination Tribunal—naming of parties. COMPANIES (Administration orders)

Company in liquidation. See Employment & Discrimination Tribunal—naming of parties. COMPANIES (Compulsory winding up), (Voluntary winding up)

Compensation. See Sex discrimination—compensation. Termination—unfair dismissal

Compensation for unfair dismissal. See Termination—unfair dismissal

Constructive dismissal. See Employment & Discrimination Tribunal—appeals. Termination—constructive dismissal

Correction of errors in decisions and notices. See Employment & Discrimination Tribunal—regulation of Tribunal’s procedure

Damages. See Termination—wrongful dismissal

Demotion. See Disciplinary sanctions—use of improper sanction

Disciplinary sanctions

use of improper sanction

employee may be estopped from pleading breach of contract if acquiesces in use of improper sanction, e.g. teacher estopped from claiming demotion invalid as not available disciplinary sanction if assumes otherwise, accepts sanction and continues demoted for several years before alleging employer’s improper exercise of powers: Smith v. States Education Council (C.A.), 2000–02 GLR 350

Discrimination. See Employment & Discrimination Tribunal. Sex discrimination

Duties of employee

confidentiality

implied duty to preserve trade secrets or equivalent material—trade secrets or equivalent material determined by principles of honesty and fair dealing—requires degree of confidentiality that disclosure to third party will inevitably and self-evidently harm previous employer—no duty to preserve confidential of information gained in course of employment if (a) trivial or open to public; or (b) has become part of employee’s skills and knowledge capable of being used after employment ceases: Old Mutual Intl. Servs. Ltd. v. Rooney (Royal Ct.), 2000–02 GLR N [5]

faithful service

implied term in contract that employee will render honest and faithful service to employer: First Call Recruitment v. Wright (Royal Ct.), 2005–06 GLR N [6]

Duties of employer

suitable working environment

implied term in contract that employer will provide suitable working environment, e.g. not to behave in manner likely to damage relationship of trust and confidence with employees: First Call Recruitment v. Wright (Royal Ct.), 2005–06 GLR N [6]

trust and confidence

implied term breached by employer if follows no recognized procedure for dismissal and cumulatively erodes employee’s trust and confidence by bullying and harassment: A.J. Troalic & Sons Ltd. v. Kinsey (Royal Ct.), 2009–10 GLR N [19]

implied term in contract that employer will observe relationship of trust and confidence with employees—limited to subsistence of employment and inapplicable to circumstances surrounding dismissal, e.g. no effect on damages for wrongful dismissal: Good v. Crédit Suisse (Guernsey) Ltd. (Royal Ct.), 2009–10 GLR 183

Employment & Discrimination Tribunal

appeals

appeal on point of law not allowed if appellant merely alleges Tribunal reached right decision for wrong legal reasons—to show further reason for overturning decision: Burford v. Flybe Ltd. (Royal Ct.), 2009–10 GLR N [10]

question of fact

not normally subject to appeal, but may be reviewed if results from Tribunal’s misdirection on question of law—complex legal issues better examined in court of law: Burford v. Flybe Ltd. (Royal Ct.), 2009–10 GLR N [10]

Royal Court only to interfere with Tribunal’s findings of fact if not based on evidence or otherwise perverse—court not to interfere merely because would itself have made different decision: Lange v. Waters (Royal Ct.), 2016 GLR 159

whether repudiatory breach of contract by employer amounting to constructive dismissal (i.e. entitling employee to leave without notice) is question of fact—court will rarely disagree on appeal: A.J. Troalic & Sons Ltd. v. Kinsey (Royal Ct.), 2009–10 GLR N [19]

right to appeal under Employment Protection (Guernsey) Law 1998, s.23(1) against adjudicator’s “decision or award” not limited to final decision on unfair dismissal—may appeal without leave against interlocutory ruling, e.g. decision to defer giving reasons on preliminary issue until end of adjudication: Credit Suisse (Guernsey) Ltd. v. Carré (Royal Ct.), 2005–06 GLR 364

stay of appeal—court has discretion to stay appeal against interlocutory ruling, e.g. may stay appeal against decision to defer giving reasons on preliminary issue until end of adjudication: Credit Suisse (Guernsey) Ltd. v. Carré (Royal Ct.), 2005–06 GLR 364

Tribunal’s decision to be read on basis that knew how to perform functions and which matters to consider, unless contrary shown: Burford v. Flybe Ltd. (Royal Ct.), 2009–10 GLR N [10]

A.J. Troalic & Sons Ltd. v. Kinsey (Royal Ct.), 2009–10 GLR N [19]

change of party’s name. See Employment & Discrimination Tribunal—naming of parties

companies. See Employment & Discrimination Tribunal—naming of parties

correction of Tribunal’s errors in decisions and notices

major correction may be made to decision by court’s use of power of interpretation under Employment Protection (Guernsey) Law 1998, s.28(1)—application by one party, both sides heard and written ruling given—procedure may be used more than one month after award made: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

rules for making minor and major corrections to decisions and notices set out in detail—preferable for Tribunal to make own minor corrections, leaving major corrections to be made on appeal or review: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

costs

Tribunal has wide discretion as to costs (under Employment and Discrimination Tribunal (Guernsey) Ordinance 2005, Schedule)—decision to make no costs order following complainant’s partial success not overturned on appeal: Lange v. Waters (Royal Ct.), 2016 GLR 159

directions to complainant

even if legal basis for complaint clear, when claim made in wide terms by unrepresented complainant, helpful if Chairman directs complainant to specify exact legal basis for claim: Cotterill v. Caring Companions Nursing Agency (Royal Ct.), 2014 GLR N [2]

frivolous or vexatious claims

if second claim brought soon after first claim dismissed, Tribunal entitled to question whether new claim frivolous or vexatious—under Employment Protection (Guernsey) Law 1998, s.19(3)(b), may refuse to consider complaint without hearing if submissions indicate no real prospect of establishing ground for claim: Cotterill v. Caring Companions Nursing Agency (Royal Ct.), 2014 GLR N [2]

inherent jurisdiction. See Employment & Discrimination Tribunal—regulation of Tribunal’s procedure

interpretation of award

Tribunal may use power to give decision on interpretation (under Employment Protection (Guernsey) Law 1998, s.28(1)) to make major correction to decision under guise of interpretation—both sides to be heard and written ruling given—procedure may be used more than one month after award made: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

naming of parties

conventions for naming foreign companies may be similar to Guernsey conventions but Tribunal to ask foreign company’s representatives for details applicable in place of incorporation: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

rules set out in detail for naming parties who change status before or during proceedings, e.g. single woman marrying, or company officially changing name, going into administration, liquidation or désastre: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

presumed knowledge of parties

aim of Employment Protection (Guernsey) Law 1998 to enable parties to use Tribunal without legal representation—parties presumed to have knowledge of law and Tribunal’s procedure: CAMS Ltd. v. Cluer (Royal Ct.), 2011–12 GLR N [21]

regulation of Tribunal’s procedure

by Employment Protection (Guernsey) Law 1998, Schedule, para. 1(1)(m), adjudicator to decide own procedure—may legitimately choose to divide adjudication into preliminary and substantive issues—not wrong in law to defer giving reasons for decision on preliminary issue until conclusion of substantive hearing if done with view to rapid resolution of dispute: Credit Suisse (Guernsey) Ltd. v. Carré (Royal Ct.), 2005–06 GLR 364

since Tribunal empowered by Employment and Discrimination (Guernsey) Ordinance 2005, para. 2(m) to regulate own procedure, no need to rely on inherent jurisdiction for authority to make procedural rules—desirable to follow general pattern of procedures adopted in other Guernsey courts and tribunals: In re Employment & Discrimination Panel Convenor’s Ref. (Royal Ct.), 2014 GLR N [1]

Tribunal generally entitled to determine its own procedure and may choose to determine application on papers—right for Tribunal to reserve full hearing for cases with legitimate dispute requiring resolution—parties not deprived of opportunity to clarify positions if informed of decision not to hold full hearing and given opportunity to contact Secretary to Tribunal: Cotterill v. Caring Companions Nursing Agency (Royal Ct.), 2014 GLR N [2]

stay of appeals. See Employment & Discrimination Tribunal—appeals

withdrawn complaint

complainant not entitled to reinstate complaint if withdrawn before Tribunal considers it and no attempt made to reinstate complaint when given opportunity by Tribunal—cannot appeal on basis that claim should have been successful as no decision from which to appeal: Cotterill v. Caring Companions Nursing Agency (Royal Ct.), 2014 GLR N [2]

Employment-related housing licences. See HOUSING (Housing licences—employment-related licences)

Express dismissal. See Termination—express dismissal

Faithful service. See Duties of employee—faithful service

Fisheries. See Safety—breach of statutory duty. Safety—safe system of work

Foreign companies. See Employment & Discrimination Tribunal—naming of parties. COMPANIES (Foreign companies)

Frivolous or vexatious claims. See Employment & Discrimination Tribunal—frivolous or vexatious claims

Guernsey Competition and Regulatory Authority. See Restraint of competition

Hourly rate. See Minimum wage—hours worked

Implied terms. See Duties of employee—faithful service. Duties of employer—suitable working environment. Duties of employer—trust and confidence

Industrial disputes

definition of “industrial dispute”

“industrial dispute” has wide meaning in Industrial Disputes and Conditions of Employment (Guernsey) Law 1993, s.18—includes any employment-related dispute or difference between employer and employee—includes notifications by Guernsey Police Association, Association of Guernsey Firefighters and group of senior civil servants of dispute with States as employer concerning changes to pension scheme in States of Guernsey (Public Servants) (New Pension and other Benefits) Rules 2016: States of Guernsey v. Le Maitre (Royal Ct.), 2022 GLR 468

existence of industrial dispute

if earlier decision by former Industrial Disputes Officer that no industrial dispute was based on mistake of fact, decision was null and current Industrial Disputes Officer may make valid decision as to existence of industrial dispute: States of Guernsey v. Le Maitre (Royal Ct.), 2022 GLR 468

Industrial Disputes Officer not required to take legal advice when deciding whether “industrial dispute” exists under Industrial Disputes and Conditions of Employment (Guernsey) Law 1993, to be referred to Tribunal: States of Guernsey v. Le Maitre (Royal Ct.), 2022 GLR 468

referral to Industrial Disputes Tribunal

Industrial Disputes Officer wrong to refer to Industrial Disputes Tribunal complaint made by members of Unite concerning changes to pension scheme in States of Guernsey (Public Servants) (New Pension and other Benefits) Rules 2016—Unite members were bound by previous agreement which compromised rights to pursue grievances in respect of 2016 Rules: States of Guernsey v. Le Maitre (Royal Ct.), 2022 GLR 468

Minimum wage

hours worked

if employer fails to keep written record of hours worked by employee, hours to be ascertained from employment contract—if live-in carer’s contract (although poorly drafted) provides for 6-day week with 2-hour rest break per day, carer works 22 hours per day, making 132 hours per week—considered to be working even when asleep—Tribunal erred in disregarding contract in favour of “just and equitable” result: Lange v. Waters (Royal Ct.), 2016 GLR 159

Naming of parties in Tribunal proceedings. See Employment & Discrimination Tribunal—naming of parties

Non-compete provisions. See Restraint of competition

Pensions. See Industrial disputes

Public officers. See PAROCHIAL ADMINISTRATION (Constable), (Parish officers)

Reduction of compensation for unfair dismissal. See Termination—unfair dismissal

Redundancy

civil servants

enhancement of benefits

change of long-standing policy to grant full redundancy benefit enhancement amenable to judicial review if generally applicable to members of pension scheme and each has equal chance of being detrimentally affected: Bichard v. States (Royal Ct.), 2005–06 GLR 388

legitimate expectation of full redundancy benefit enhancement if previous clear policy of Public Sector Remuneration Committee to grant it changed without full consultation with Pensions Consultative Committee—consultation to include consideration of all relevant factors, e.g. reasons for change, close analysis of States’ financial position and whether feasible to grant smaller enhancement rather than none: Bichard v. States (Royal Ct.), 2005–06 GLR 388

Restraint of competition

appeal against decision of GCRA

appeal allowed against decision of GCRA, having found that non-compete provisions infringed prohibition on preventing competition (Competition (Guernsey) Ordinance 2012, s.5(1)), to direct appellant to remove non-compete provisions from partnership agreement and employment contracts—decision disproportionate—GCRA should have considered whether period of non-compete provisions should be reduced: Medical Specialist Group LLP v. Guernsey Competition & Regulatory Auth. (Royal Ct.), 2023 GLR 17

appeal allowed against decision of GCRA that non-compete provisions in The Medical Specialist Group’s partnership agreement and employment contracts infringed prohibition on preventing competition (Competition (Guernsey) Ordinance 2012, s.5(1))—some of GCRA’s reasons for decision unreasonable and/or based on material factual errors—principal issue is scope and duration of non-compete provisions—matter remitted to GCRA: Medical Specialist Group LLP v. Guernsey Competition & Regulatory Auth. (Royal Ct.), 2023 GLR 17

grounds of appeal under Competition (Guernsey) Ordinance 2012, s.46 wider than conventional judicial review—appeal to court with full jurisdiction, although not able to retake decision—s.46 of Ordinance compliant with ECHR: Medical Specialist Group LLP v. Guernsey Competition & Regulatory Auth. (Royal Ct.), 2023 GLR 17

penalties

appeal allowed against GCRA’s decision to impose penalty of £1,532,590 on The Medical Specialist Group for infringement of prohibition on preventing competition—issue of infringement remitted to GCRA—penalty decision also remitted: Medical Specialist Group LLP v. Guernsey Competition & Regulatory Auth. (Royal Ct.), 2023 GLR 17

prohibition on preventing competition

GCRA has legal burden of establishing infringement of prohibition on preventing competition (Competition (Guernsey) Ordinance 2012, s.5(1))—appellant has evidential burden of providing evidence that non-compete provisions objectively justified: Medical Specialist Group LLP v. Guernsey Competition & Regulatory Auth. (Royal Ct.), 2023 GLR 17

Safety

breach of statutory duty

burden of proof—employer of fishing crew in breach of duty under Health and Safety at Work (General) (Guernsey) Ordinance 1987, s.1(1) and (2) has burden of proof to show crew member failed under s.6 to take reasonable care for own safety: Stone v. Hickman (C.A.), 2007–08 GLR N [23]

employee’s duty to take reasonable care—crew member of fishing boat not guilty of failure to take reasonable care for own health and safety under Health and Safety at Work (General) (Guernsey) Ordinance 1987, s.6 if merely momentary inattention in stressful work conditions, not amounting to contributory negligence—normally requires evidence that consciously did something wrong, disobeyed instructions or wilfully took greater risk than required: Stone v. Hickman (C.A.), 2007–08 GLR N [23]

video evidence of general misconduct of employees 4 years after alleged breach of employer’s duty of safety not admissible in proceedings for injury based on that breach—remoteness in time means weak probative value and risks distracting Jurats from material issues: Cosheril v. Felix Shipping Ltd. (C.A.), 2000–02 GLR N [9]

contributory negligence of employee. See Safety—breach of statutory duty. Safety—safe system of work

safe system of work

burden of proof—employer of fishing crew in breach of duty to provide safe system of work on boat has burden of proof to establish contributory negligence by showing crew member failed to take reasonable care for own safety: Stone v. Hickman (C.A.), 2007–08 GLR N [23]

employee’s duty to take reasonable care—crew member of fishing boat not guilty of failure to take reasonable care for own safety if merely momentary inattention in stressful work conditions, not amounting to contributory negligence—normally requires evidence that consciously did something wrong, disobeyed instructions or wilfully took greater risk than required: Stone v. Hickman (C.A.), 2007–08 GLR N [23]

Sex discrimination

compensation

in considering reduction of compensation under Sex Discrimination (Employment) (Guernsey) Ordinance 2005, s.47 following employee’s rejection of offer of reinstatement, Tribunal to make and record principled inquiry whether (a) employer’s offer would put employee in all respects in position in which would otherwise have been; and if does (b) whether employee’s refusal of offer unreasonable—only if finding that employee’s refusal unreasonable, Tribunal to consider whether to reduce award—mere statement by Tribunal that “no consideration could be given to any reduction” insufficient evidence of principled inquiry: Europcar Guernsey v. Dent (Royal Ct.), 2014 GLR N [6]

principles applicable

dismissal not discriminatory if, although female employee unable to return to work for childcare reasons, dismissal due to her conduct, e.g. refusing to apply for standard career break after extended maternity career break: Burford v. Flybe Ltd. (Royal Ct.), 2009–10 GLR N [10]

when deciding whether prima facie discriminatory measure justified, Tribunal to consider that (a) burden of proof lies on employer to show justification; (b) allegedly discriminatory measures to correspond to real need, and necessary and appropriate for achieving objectives pursued; (c) more serious discriminatory effect requires more cogent justification; (d) Tribunal to weigh reasonable needs of employer’s objective against discriminatory effect of measure and to assess whether former outweighs latter; and (e) in considering justification, Tribunal to analyse circumstances critically and reflect analysis in reasoning: Burford v. Flybe Ltd. (Royal Ct.), 2009–10 GLR N [10]

Suitable working environment. See Duties of employer—suitable working environment

Summary dismissal. See Termination—wrongful dismissal

Termination

compensation. See Termination—unfair dismissal

constructive dismissal

employee constructively dismissed (under Employment Protection (Guernsey) Law 1998, s.5(2)) if employer’s serious breach of obligations under employment contract entitles employee to terminate contract without notice: Lange v. Waters (Royal Ct.), 2016 GLR 159

express dismissal

to be communicated to employee and employment continues until then: Burford v. Flybe Ltd. (Royal Ct.), 2009–10 GLR N [10]

sex discrimination. See Sex discrimination

summary dismissal. See Termination—unfair dismissal

unfair dismissal

burden of proof

burden of proving fairness/unfairness in unfair dismissal proceedings is, by Employment Protection (Guernsey) Law 1998, s.6(3), neutral—both sides to advance own case on merits: Hamilton Brooke v. Solway (Royal Ct.), 2000–02 GLR N [7]

compensation

court may consider reduction of compensation under Employment Protection (Guernsey) Law 1998, s.23(2) even though not raised before, or considered by, Tribunal: A.J. Troalic & Sons Ltd. v. Kinsey (Royal Ct.), 2009–10 GLR N [19]

employer to submit evidence to Employment and Discrimination Tribunal to reduce award of compensation—if fails to do so, Tribunal’s not reducing award under Employment Protection (Guernsey) Law 1998, s.23(2) not necessarily Wednesbury unreasonable—Tribunal not to conduct own enquiries in order to exercise discretion to reduce compensation: CAMS Ltd. v. Cluer (Royal Ct.), 2011–12 GLR N [21]

in considering reduction of compensation under Employment Protection (Guernsey) Law 1998, s.23(1) following employee’s rejection of offer of reinstatement, Tribunal to make and record principled inquiry whether (a) employer’s offer would reinstate employee fully; and if does (b) whether employee’s refusal of offer unreasonable—only if finding that employee’s refusal unreasonable, Tribunal to consider whether to reduce award—mere statement by Tribunal that “no consideration could be given to any reduction” insufficient evidence of principled inquiry: Europcar Guernsey v. Dent (Royal Ct.), 2014 GLR N [6]

respondent’s failure to follow fair dismissal procedure not of itself enough to prevent reduction of compensation: Burford v. Flybe Ltd. (Royal Ct.), 2009–10 GLR N [10]

under Employment Protection (Guernsey) Law 1998, s.23, Tribunal may reduce award to any extent if just and equitable—discretion to consider wide range of matters it thinks relevant, e.g. whether employee’s conduct contributed to dismissal and respondent’s failure to follow fair dismissal process—failure to follow fair dismissal process not of itself enough to stop reduction: Burford v. Flybe Ltd. (Royal Ct.), 2009–10 GLR N [10]

employer retains common law right to dismiss without reason, subject only to damages for breach of contractual notice—despite creation of alternative remedy for unfair dismissal, common law rules preserved for civil actions by Employment Protection (Guernsey) Law 1998, s.30: Good v. Crédit Suisse (Guernsey) Ltd. (Royal Ct.), 2009–10 GLR 183

finality

provision as to finality in Employment Protection (Guernsey) Law 1998, s.17(3)(a) relates only to adjudicator’s determining reasonableness of Board of Industry’s decision not to allow complaint out of time under sub-s. (2)(b)—no relevance to adjudicator’s substantive decision on unfair dismissal—therefore not precluded from reconsidering e.g. decision on effective date of termination of employment: Warden v. Fermain Legal Servs. Ltd. (Royal Ct.), 2003–04 GLR N [35]

preliminary issues

complaint of unfair dismissal not to be disposed of by Board of Industry as preliminary issue—complainant entitled to have case heard and determined by adjudicator under Employment Protection (Guernsey) Law 1998, s.17: Warden v. Fermain Legal Servs. Ltd. (Royal Ct.), 2003–04 GLR N [35]

in proceedings for unfair dismissal, whole matter to be determined by adjudicator before any appeal to Royal Court—undesirable for preliminary issue to be raised and appealed separately, since may preclude quick and cost-effective disposal of proceedings as intended by Employment Protection (Guernsey) Law 1998: Garenne Group Ltd. v. Falla (C.A.), 2000–02 GLR N [15]

reasonable dismissal procedure—codes of industry practice, though not legally binding, relevant as evidence of whether dismissal procedure reasonable for employer in that industry: Hamilton Brooke v. Solway (Royal Ct.), 2000–02 GLR N [7]

under Employment Protection (Guernsey) Law 1998, s.6(1), employer to provide and prove reason for dismissal—no requirement for adjudicator to establish reason falling under s.6(2), as may not be possible if summary dismissal without reason: Burford v. Flybe Ltd. (Royal Ct.), 2009–10 GLR N [10]

under Employment Protection (Guernsey) Law 1998, s.12, dismissal unfair if reason (or principal reason) is employee bringing proceedings to enforce, or alleging infringement of, relevant statutory right—reason must be operative at time of dismissal—employee not unfairly dismissed if employer unaware of alleged breaches before resignation: Lange v. Waters (Royal Ct.), 2016 GLR 159

wrongful dismissal

damages

Lord Lowry’s five “aids to navigation” not satisfied so as to allow development of “stigma” damages for wrongful dismissal from employment—doubtful and uncertain solution; would alter well-established common law employment relationship; States enacted employment protection legislation without referring to or changing law on damages for manner of dismissal: Good v. Crédit Suisse (Guernsey) Ltd. (Royal Ct.), 2009–10 GLR 183

no right to damages for manner of dismissal, injured feelings, stigma associated with dismissal making harder to obtain new employment—common law rules not affected by or incorporated into Employment Protection (Guernsey) Law 1998: Good v. Crédit Suisse (Guernsey) Ltd. (Royal Ct.), 2009–10 GLR 183

when developing common law by reference to foreign law, specific area of foreign law to be similar to Guernsey’s—no similarity between French and Guernsey employment law—Guernsey law historically and practically developed by reference to English concepts and principles: Good v. Crédit Suisse (Guernsey) Ltd. (Royal Ct.), 2009–10 GLR 183

“without prejudice” document admissible as evidence in support of contention that unlawful threat of dismissal made—threat if statement that unpleasant consequences would result if employee did not resign, but not unlawful if merely statement of consequences if did not accept terms offered: Gilliham v. NRG Distribution (Royal Ct.), 2003–04 GLR 247

Unemployment benefit. See SOCIAL SECURITY (Unemployment benefit)

Unfair dismissal. See Employment & Discrimination Tribunal—appeals. Termination—unfair dismissal

Use of improper sanction. See Disciplinary sanctions—use of improper sanction

Vexatious claims. See Employment & Discrimination Tribunal—frivolous or vexatious claims

Vicarious liability. See TORT (Vicarious liability)

Withdrawal of complaint. See Employment & Discrimination Tribunal—withdrawn complaint

Wrongful dismissal. See Termination—wrongful dismissal