Knowledge

This briefing summarises key changes to the Employment (Jersey) Law 2003 (the "Law") in connection with maternity, adoption, parental and flexible working rights (the "Family Friendly Rights").

Employment (Amendment No. 8) (Jersey) Law 2014 ("the Amendment") was registered in the Royal Court on 14 November 2014. The Amendment's provisions were introduced in two stages: 1 April 2015 and 1 September 2015. This briefing focuses on the provisions in force from 1 September 2015, which concern the core Family Friendly Rights.

Rationale for introducing the Family Friendly Rights
Many employers already have internal regulations regarding maternity leave and other family-friendly rights. The Amendment introduces minimum statutory requirements that all Jersey employers must comply with. It is hoped that the Family Friendly Rights will provide parents (and those caring for another) with greater flexibility in balancing their careers with family or care commitments.  

Maternity
Antenatal care
Pregnant employees that have been advised by their GP, a midwife, or registered nurse to attend an ante-natal care appointment during normal working hours will be entitled to paid time off for such purposes. The employer is entitled to request certain documentary evidence in connection with the appointment in advance of granting the leave.

Compulsory maternity leave ("CML")
CML is paid.  An employee is entitled to CML irrespective of her length of service. CML is for a continuous period of 2 weeks, beginning with the date of the birth. The employer must not permit the employee to work (remotely or otherwise) during this time.

Ordinary maternity leave ("OML")
OML is unpaid.  The period of OML entitlement is linked to the employee's length of service:

OML must be taken for a continuous period.

Adoption
Adoption leave ("AL")
AL is unpaid.  The period of AL entitlement is also linked to the employee's length of service:

In cases where persons are "matched jointly" as adopters (e.g. they may be undertaking the adoption as a married couple, as civil partners, or "partners" (living together in an enduring family relationship)), only one person may be the "adopter" for the purposes of the Law. Therefore, only one of the two may benefit from the right to take AL. However, if the other person is indeed a spouse, civil partner or partner then he or she may qualify for a portion of unpaid leave under the statutory parental leave regime. For more information about this, please see below.

The employee has certain options in connection with selecting the start date for his or her AL period. AL must also be taken for a continuous period.

Parental
Parental leave ("PL")
PL is unpaid.  An employee is entitled to two weeks' PL - irrespective of his or her length of service. Unlike leave in connection with maternity or adoption, PL does not need to be taken in one continuous period: it can be taken as a single two-week absence or be split over two one-week absences.

Subject to the employee meeting the qualifying criteria, he or she may apply for PL in connection with maternity or adoption. It must be for the purposes of (i) caring for a child or (ii) supporting the mother or adopter of the child (as the case may be).

Regarding PL in the context of maternity, the employee will qualify for leave if the employee is: the father of the child; the mother's spouse or civil partner; or the mother's partner. Regarding PL in connection with adoptions, the employee will qualify if he or she is: the adopter's spouse; civil partner or partner. In both cases the employee must have, or expect to have, parental or main responsibility for the adopted or new-born child (as the case may be).

Flexible working
If eligible, an employee is entitled to apply to his or her employer to have their terms and conditions of employment amended for flexible working purposes. Various conditions apply, to include:

• the employee must have at least 15 months' continuous service;
• the change must be for the purposes of enabling the employee to provide care for another person;
• the change relates to work hours, work times or place of work;
• the employee has submitted an application in writing in the form prescribed by the Law; and
• the employee has not made such an application in the previous 12 months.

An eligible employee who has complied with the application procedure is entitled to meet with the employer to discuss the application. Time limits apply to the employer convening the meeting and handing down its decision.

An application may only be refused with reference to a limited number of grounds.

If any employee's application is rejected, the employer must cite the ground(s) relied upon and sufficient explanation as to why the refusal grounds apply in the case.

An employee has the right to appeal his or her employer's decision, which must be in the prescribed form and submitted within the deadline stipulated in the Law.

Family Friendly Rights in practice
Various statutory rules apply in connection with the exercise by an employee of his or her rights in connection with the Family Friendly Rights, including but not limited to rules governing the following:

• application criteria and formalities (to include the evidence that the employee may be asked to submit);
• setting and/or amending leave dates;
• notification requirements;
• work undertaken by the employee during leave;
• actions by the employer to keep in touch with the employee during leave; and
• the employee's return to work following leave.

Unless varied by the provisions of the statute, the terms and conditions of an employee's contract of employment are preserved during CML, to include rights in connection with bank and public holidays and annual leave. In connection with OML, AL and PL the employer is also similarly obliged to honour the terms of the employee's contract, save for the right to remuneration, which is not payable during such absence.

The Family Friendly rights introduced by the Amendment are a significant step in the development of statutory employment protections in Jersey.

Businesses that already have policies in place should review their terms to ensure that these meet with the statutory requirements. Such a review, which we can assist with, should extend beyond checking minimum leave entitlement and consider other important factors (i.e. whether the procedures set out under the relevant policy capture the parties' obligations in connection with the administration of the entitlement in question). Businesses that do not have designated policies in connection with the Family Friendly Rights may wish to take advice as to their obligations under the Law (as amended) and what the new protections may mean for their business.