Making a Complaint to the Employment & Discrimination Tribunal

This publication provides general guidance to Applicants on how to make complaints to The Employment & Discrimination Tribunal (the Tribunal) under:

• The Employment Protection (Guernsey) Law, 1998, see Legislation page number 8.
• The Employment Protection (Sunday Shop Working) (Guernsey) Law, 2001, see Legislation page number 20.
• The Sex Discrimination (Employment) (Guernsey) Ordinance, 2005, see Legislation page number 6.
• The Minimum Wage (Guernsey) Law, 2009, see Legislation page number 11.

If you think:

• you have been unfairly dismissed from your job
• your employer has, following a request from you, failed to provide you with written reason(s) for your dismissal
• that the reason(s) given by your employer for your dismissal is/are inadequate or untrue
• you have suffered a detriment for refusing, or proposing to refuse to work in a shop on a Sunday
• you have suffered a detriment/less favourable treatment which you believe was based on your gender, married status or because you intend to undergo, are undergoing or have undergone gender reassignment
• you are a worker who has been paid at less than the prescribed minimum wage
• you are a worker who has been refused proper access, by your employer, to relevant records in order to establish whether or not you have been remunerated at a rate that is less than the minimum wage; or
• you have suffered a detriment which you believe resulted from exercising your rights under the Minimum Wage Law

You can make a complaint (subject to certain restrictions, please see Section ‘Are there any Restrictions on Making a Complaint?’)

How Can I Make a Complaint?

You should contact the Employment and Equal Opportunities Service,  who will offer confidential and free advice on all aspects of employment and discrimination legislation including, if appropriate, how to make a complaint.

NB: Please note that complaints relating to failure to be paid the Minimum Wage can be taken to the Employment & Discrimination Tribunal or to the Civil Court; the information that follows relates only to those complaints brought to the Employment & Discrimination Tribunal.

The Intent to complain form can be found here. Complaints forms

(A full list of the types of complaint is to be found towards the end of this publication).

Additional forms can be obtained from the Employment and Equal Opportunities Service, Edward T Wheadon House, Le Truchot, St Peter Port, Guernsey, GY1 3WH.

Further contact details can be found at the end of this publication.

Forms may also be downloaded from the Employment Tribunal Service website.

Are There Any Restrictions on Making a Complaint?

Unfair Dismissal

In most cases, you are eligible to make a complaint as described above if you have been in the same employment for one year or more (known as the qualifying period).

However, if you have been dismissed:

• because you are pregnant or for any reason connected with your pregnancy
• because you were involved in legitimate trade union activities, or in relation to trade union membership
• for a reason connected to Health and Safety e.g. you were dismissed because you were asked to perform an unsafe or unlawful task, and refused
• because you asserted a relevant statutory right (examples include: you asked for a written contract of employment or payslip or properly requested access to relevant records in order to establish whether or not you have been remunerated at a rate that is less than the minimum wage)
• because you refused, or proposed to refuse to work in a shop on a Sunday (or if you have suffered a detriment for refusing, or proposing to refuse, to work in a shop on a Sunday)
• because you have suffered a detriment/less favourable treatment, or have been dismissed, for a reason which you believe was based on your gender, married status or because you intend to undergo, are undergoing or have undergone gender reassignment
• or because you have suffered a detriment/less favourable treatment for a reason which you believe was a result of exercising your rights under the Minimum Wage Law

you may be able to make a complaint even if you have been employed for less than one year.

Failure to be provided with a written reason(s) for dismissal

The one-year qualifying period also applies to the right to be provided with a written reason for dismissal. The only exception is when the dismissal occurred while the employee was pregnant or on maternity leave. In such cases, the woman is entitled to a written reason for her dismissal, without requesting it, regardless of the length of time she has been employed.

The Sex Discrimination (Employment) (Guernsey) Ordinance, 2005

Under the Sex Discrimination (Employment) (Guernsey) Ordinance, 2005, you may be able to bring certain types of complaint whilst still in employment (for example, discrimination on the grounds of gender, married status, gender reassignment etc. or for victimisation).

However, please note that rights, under the Sex Discrimination Ordinance, are not limited to existing or ex-employees but are also available in other areas of the ‘employment field’ for example, to job applicants, contract workers, trade unions and partnerships.

For further information, please see the Department’s publication ‘Sex Discrimination at Work – Your Rights’, which also is available on the website, and for more comprehensive advice, speak to an Employment Relations Officer.

The Minimum Wage (Guernsey) Law, 2009

Under the Minimum Wage Law, you may be able to bring a complaint while you are still working for the employer if:

• you believe you been paid at less than the prescribed minimum wage
• you have been refused proper access, by your employer, to relevant records in order to establish whether or not you have been paid at less than the minimum wage; or
• you have suffered a detriment which you believe was as a result of exercising your rights under the Minimum Wage Law.

Please see the Employment Guide ‘Statutory Minimum Wage’, or speak to an Employment and Equal Opportunities Officer, for advice and for more comprehensive details of the complaints that can be brought under the Minimum Wage legislation.

Time Limits for Complaints

In the case of:

‘Unfair dismissal’ and or ‘Failure to be provided with a written statement of reason(s) for dismissal’ or where provided the Applicant considers the reason(s) to be inadequate or untrue;

a complaint must be submitted to the Secretary to the Tribunal within three months of the ‘effective date of termination’.

The ‘effective date of termination’ is:

• the date on which the notice period ends
• the last day at work (if the dismissal was without notice or with pay in lieu of notice) or
• if you are employed on a fixed term contract, which is not going to be renewed under the same contract, the ‘effective date of termination’ is the day the contract expires.

This means for example, that if your employment ends on the 30 March, your Application must be received by the 29 June; if your employment ended on the 5 April, your Application must be received by the 4 July. 

Sunday Shop Workers’ Protection

In the case of shop workers who have been dismissed for refusing or proposing to refuse to do shop work on Sundays, a complaint must be submitted within three months of the ‘effective date of termination’.

In the case of shop workers who wish to complain that they have suffered or are suffering a detriment for refusing or proposing to refuse to work in a shop on a Sunday, complaints must be submitted within three months of (or becoming aware of) the act, or failure to act, which caused the detriment.

Sex Discrimination Ordinance

A complaint must be submitted within a period of three months beginning on the day the discriminatory act complained of was done. An act extending over a period is treated as having been done at the end of the period and the three months’ time limit starts from the end of that period.

Minimum Wage Law

A complaint must be submitted within a period of three months, subject to the provisions in Sections 8 and 9 of the Law relating to the time limits for the production of relevant records.

‘Out of Time’ Complaints

If your Application is not received within the three months’ time limit, your Application will be rejected.

If you wish to apply for further time, on the basis that it was not reasonably practicable for the complaint to have been submitted within the time limit, you should make an Application to the Secretary to the Tribunal, who will transmit the Application form (ET1) to a Tribunal for consideration.

The decision of the Tribunal may be appealed, but only on a question of law.

Where Do I Send My Complaint?

Your completed form should be sent to:

Employment and Equal Opportunities Service, Edward T Wheadon House, Le Truchot, St Peter Port, GY1 3WH

Telephone number: 01481 220025

How Will My Application Be Dealt With?

When your Application is received and registered, you (the Applicant) will be informed in writing. A case number will be allocated to your complaint, which will be quoted in any further correspondence.

The employer (the Respondent) will then be sent a copy of your Application form and be asked to respond by completing form ET2, confirming whether or not they intend to resist the complaint.

The Respondent should then return the completed form, normally within two weeks. (A copy of the completed Response form (ET2) will be sent to you.)

Conciliation

Conciliation is a process whereby an independent and impartial Conciliation Officer will try to assist the parties to reach a mutually acceptable agreement to settle the complaint, avoiding the potential expense and stress of preparing for and attending an Employment Tribunal.

A copy of your Application form and the Response form is passed to a Conciliation Officer at the Employment and Equal Opportunities Service. Conciliation will then be offered to both parties, in order to reach a settlement without the need to refer the case to a Tribunal Hearing. Conciliation is voluntary and either side may refuse to take part (please refer to the Department’s publication ‘Conciliation for Individuals’ for further information on this process).

If a settlement is reached, the parties will sign the agreement, which will be countersigned by the Conciliation Officer, and no further action may be taken under the Law in respect of the complaint.

Should conciliation fail to reach a settlement, or one or both of the parties not wish to make use of the service, the complaint will then be referred to a Tribunal.

What Happens Next?

A Hearing before a Tribunal will be arranged (normally within six weeks of the complaint being registered, unless conciliation is still in progress with a view to a settlement). A Tribunal will be appointed to hear your complaint. After the Hearing, the Tribunal will either make an award or dismiss the complaint.

Attendance At the Hearing

The parties, where possible, will be advised of the date, time and venue at least twentyone days before the Hearing.

The Hearing will be held in public. In very exceptional circumstances, if there is a valid and pressing reason, the Tribunal may decide to hold some, or all, of the Hearing in private.

If either party chooses not to attend the Hearing, the Tribunal may still hear the case and make a decision and/or award.

What If The Parties or Witnesses Cannot Attend The Hearing?

If either party or their witness cannot attend the Hearing on the notified date, they should write to the Secretary to the Tribunal explaining that they cannot attend. There will need to be a significant reason why the party cannot attend, supported by evidence, otherwise the Tribunal will not consider changing the Hearing date.

It should also be made clear if there are any alternative dates that would not be suitable during the following six weeks. The Tribunal will then decide whether the Hearing should be postponed, and the parties will be notified.

Can Witness Statements Be Used Instead Of The Witness Attending?

Written statements of witness evidence may be used, however, evidence from a witness in person usually carries more weight. If the evidence of the witness is not likely to be disputed by the other party then this will not matter, otherwise it is always better to have your witness at the Hearing.

Preparation for the Hearing

If you are calling witnesses, make sure that they know about the time, date and venue of the Hearing. Unless summonsed by the Tribunal, it is your responsibility to ensure your witnesses attend on the day of the Hearing.

Both parties should send each other copies of any relevant documents to which they intend to refer at the Hearing.

If the parties can agree beforehand to which documents they wish to refer, then it may be simpler for them to agree a ‘bundle’ and for one party to provide a full set of documents to the other.

The Hearing will need a total of seven copies, preferably each copy will be fixed together and pages numbered. A list of contents at the front may also be helpful. If you and the other party agree, bring seven copies of your own documents to the Hearing. This should include relevant documents such as contracts of employment, letters of appointment, pay slips or wage records, your diary, medical certificates, staff handbook and any other documents you consider relevant to your case.

You may find it useful if you and your witnesses write or type what you/they intend to say, to ensure you include everything. Again, seven copies of each statement should be produced.

Summonsing Witnesses and Documents

The Tribunal, following a request from you, may summons a witness or relevant document to the Hearing.

If, following a request from you, a witness is reluctant, or refuses to attend the Hearing to give evidence, or refuses to produce a document as evidence, you may apply to the Tribunal, constituted as a single member, to issue a summons on your behalf.

Summons Applications will normally be accepted up until two weeks prior to the Hearing date.

The Tribunal will require brief details of the evidence the witness will be asked to give, and the relevance of this evidence, before it will consider issuing a summons.

Please note however, that Applications for the issue of a summons and any matters brought to the attention of the Tribunal by either party will, in the interest of openness, be disclosed to the other party.

It is for the Tribunal to decide whether or not it agrees to issue a summons.

The Hearing

The Hearing is formal, and you may present your own case, the parties may be represented should they so wish. Each party will be given an opportunity to put its own case, call witnesses or produce written evidence as necessary. Both parties, with the Tribunal’s permission, may also ask questions of the other party’s witnesses.

When the Tribunal has heard the full case put forward by each party and is satisfied that its questions have been fully answered, the Hearing will be closed in order for the Tribunal to consider the evidence.

Can My Application Be Withdrawn Before the Hearing?

Yes. If the Applicant wants to withdraw their Application, they should notify the Secretary to the Tribunal, in writing, as soon as possible.

Can A Settlement Be Agreed Before or During the Hearing?

Yes. If the parties think they can agree a settlement, either before or during the Hearing, they should request an adjournment from the Tribunal to see if this is possible.

If the parties settle before the Hearing, they should notify the Tribunal as soon as possible, in writing, that a settlement has been reached.

Compromise Agreements

Ordinarily, people cannot ‘contract out’ of the rights to claim unfair dismissal, sex discrimination etc.

An exception to the above rule is where settlement is reached through the conciliation process, as referred to earlier in this publication.

Another exception is where the parties reach what is called a ‘compromise agreement’, making it possible for parties to reach an agreement without reference to the Tribunal or conciliation processes.

However, for a compromise agreement to be legally binding, it must meet certain prescribed conditions as follows:

• the agreement must be in writing
• the agreement must relate to the particular complaint
• the Applicant must have received advice from a fully insured, independent adviser as to the terms and effect of the proposed agreement, in particular, its effect on his/her ability to pursue their rights before the Tribunal
• the agreement must identify the adviser
• the agreement must state that the conditions regulating compromise agreements under the Sex Discrimination (Employment) (Guernsey) Ordinance, 2005, see Legislation page number 6, or the Employment Protection (Guernsey) Law, 1998, see Legislation page number 8, are satisfied.

A person is an independent adviser if he is a lawyer, or an officer, official, employee or member of an independent trade union (certified in writing by the union as competent to give advice and authorised to do so). A person is not an independent adviser if he/she is employed by, or is acting in the matter for the other party, or a person connected with the other party.

The Award

Unfair Dismissal

When the Tribunal is satisfied that it has heard and seen all the relevant evidence submitted by the parties, it will consider the facts and the parties will be notified of the Tribunal’s decision/award, in writing, usually within a few weeks of the Hearing.

When a complaint is upheld, an award will be made. Awards made by a Tribunal for unfair dismissal will be equal to six months’ pay, or for weekly paid staff, one week’s pay multiplied by 26.

Reduction of award in certain cases

Before making an award for unfair dismissal, the Tribunal will take into account whether or not reinstatement was offered. If an offer was made and was unreasonably refused, the Tribunal may reduce the award.

Further, if a Tribunal considers that, by reason of any other circumstance, it would be just and equitable to reduce the amount of the award of compensation for unfair dismissal, then it may reduce the award to whatever extent it sees fit.

However, the facility to reduce the award, as described above, does not apply if it is shown that the reason for the dismissal, or in a redundancy case – the reason for selecting the Applicant for dismissal - was one of the following automatically unfair reasons:

• because the Applicant is pregnant, or for any reason connected with her pregnancy
• because the Applicant was involved in legitimate trade union activities, or in relation to trade union membershi• for a reason connected to Health & Safety, e.g. the Applicant was dismissed because he/she was asked to perform an unsafe or unlawful task, and refused
• because the Applicant asserted a relevant statutory right (examples include: he/she asked for a written contract of employment or payslip or properly requested access to relevant records in order to establish whether or not he/she has been remunerated at a rate that is less than the minimum wage)
• because the Applicant refused or proposed to refuse to work in a shop on a Sunday (or if he/she has suffered a detriment for refusing or proposing to refuse to work in a shop on a Sunday); or
• because the Applicant’s dismissal constituted an act of discrimination prohibited by the Sex Discrimination (Employment) (Guernsey) Ordinance, 2005.

Complaints other than unfair dismissal:

The Sex Discrimination (Employment) (Guernsey) Ordinance, 2005

Where the Tribunal finds that a complaint under the Sex Discrimination Ordinance is founded, it will make an award of three months’ pay, or where the applicant is weekly paid, one week’s pay multiplied by 13.

Employment Protection (Guernsey) Law, 1998, as amended

An award made for failure to provide a written statement of reason(s) for dismissal (or, where reasons are provided, these are found to be inadequate or untrue) will be equal to half a month’s pay or, for weekly paid staff, one week’s pay multiplied by two.

The Employment Protection (Sunday Shop Working) (Guernsey) Law, 2001

An award made by a Tribunal for suffering a detriment for refusing, or proposing to refuse, to work in a shop on Sundays, or on a particular Sunday, will be equal to one month’s pay or for weekly paid staff, one week’s pay multiplied by four.

The Minimum Wage (Guernsey) Law, 2009

1. In a complaint of ‘failure to allow access to records’ - the Tribunal can award 80 times the minimum wage per offence
2. In a complaint of failure to be paid the Minimum Wage - the Tribunal can award the difference between the Minimum Wage and what has been paid to the worker during the period of underpayment
3. In complaints brought under the Employment Protection Law, involving the minimum wage regulations - the Tribunal can award one month’s pay in ‘suffering a detriment’ claims and six months’ pay in ‘unfair dismissal’ claims.

The Tribunal’s decision will be posted for seven days in the Royal Court and a copy of the full, reasoned decision may be obtained, on request, from the Secretary to the Tribunal.

Appeals

The decision reached by the Tribunal will be final and legally binding upon both parties. An appeal may be made to the Royal Court, only on a point of law and within one month of the date of the decision/award of the Tribunal.

What Costs are involved?

The confidential advisory and conciliation service is free to both parties.

Each party will normally be responsible for any costs involved in preparing and presenting its own case.

A Tribunal may, in certain circumstances, award costs to either party, however, this will not include costs for legal representation. Legal fees are not recoverable, win or lose.

Note:

In a complaint or an appeal brought before the Magistrates/Royal Court, the parties may be subject to any costs incurred under the Royal Court procedures.

Before you make a complaint, please:

• read the relevant Department’s publication, copies of which can be downloaded from the Employment Relations website; and
• seek advice, if required, from an Officer at the Employment and Equal Opportunities Service – contact details can be found at the end of this publication.

For advice concerning the Tribunal process, please contact the Secretary to the Tribunal on 01481 220025.

Types of Complaint

In section one of the ET1 (Application Form), you are asked to indicate the type of complaint(s) you are making, please see below a complete list of the types of complaint which are possible; please consider them carefully before completing Box 1 of the ET1 form:

• discrimination on the grounds of gender, married status or gender reassignment
• victimisation (e.g. if you have been treated less favourably as a result of bringing proceedings, giving evidence or information in proceedings, or because you alleged that a person has done something which amounts to discrimination under the Sex Discrimination (Employment) (Guernsey) Ordinance, 2005)
• having suffered a detriment for refusing, or proposing to refuse, to work in a shop on a Sunday
• unfair dismissal
• that the employer unreasonably failed to provide a written statement giving particulars of the reasons for dismissal, or that the reasons given for the dismissal are inadequate or untrue
• you are a worker who has been paid at less than the prescribed minimum wage
• you are a worker who has been refused proper access, by your employer, to relevant records in order to establish whether or not you have been remunerated at a rate that is less than the minimum wage; or
• you have suffered a detriment which you believe was as a result of exercising your rights under the Minimum Wage Law.

Advice and Conciliation

The Employment and Equal Opportunities Service also provides a free and confidential advisory service to both employers and employees on any employment related matter.

Where appropriate a confidential conciliation service may also be provided, free of charge, and is a positive means of resolving disputes between employers and employees. The service is provided by trained staff who are impartial and able to assist in resolving disputes at all levels.