What was it about?
Non-payment of wages
What were the facts?
The Claimant’s complaint, was that he was not paid by the Respondent for a period of time he was not working owing to the Coronavirus lockdown and the Respondent’s shutdown resulting from this.
The Respondent accepted that during the relevant period the Claimant was not at work, but said that this was in accordance with a lay off provision contained within his contract. It accepted the Claimant was not paid for that period of time as it had made an error in its understanding of the Government of Jersey COVID-19 Co-Funded Payroll Scheme (“the Scheme”) and, when it realised this error, the States of Jersey rejected its application for payment of the Claimant as the application was late.
The Claimant stated that even if there was a valid contractual term it was hidden away on page 11 of the handbook, it was never drawn to his attention when he signed it, so first time it was drawn to attention was the email of 3rd April 2020, informing him of the lay off period. The Respondent’s stated this all started off because of COVID-19, if they did not do what they did they would not be trading. These are unprecedented times, never in this situation, they were learning day by day, week by week, the only thing they could do as a company was to carry out the duty as an employer in contract of employment, they sent a letter to all employees that if they did get paid by co-funding they would pay employees, 95% did get paid. The Claimant was laid off on a temporary basis. That is the overriding factor. If they had been paid co-funding they would have paid the Claimant, but in these circumstances they were late and Social Security was, at end of the day, not helpful in the application they did put in for the Claimant. They did not like the situation, but they do feel the contract is the overriding factor.
The Scheme’s aim was to assist employers with wages bills and avoid mass redundancies at a time of great economic shock. The Scheme constitutes an arrangement between the States and the Employer. Any employee is not directly impacted by the Scheme: their contract with their employer and the employee’s entitlement to pay under it, still remains in place, unaffected by the Scheme and its existence. Whether the employee has been paid appropriately is a matter between the employee and the employer, and not the States.
Employees will often be provided with a substantial volume of documentation on starting work. These documents may be presented under a variety of titles such as employer policies and company handbook. In practise they are often more voluminous than the statement of written particulars or any document which is according to its own terms a contractual document. The question is what the parties intended on the basis of the words used and their context. The question then is whether the parties have expressly or impliedly agreed that the document form part of the contract between them. If they have, the terms of this document must be “apt” to be incorporated. The staff handbook is referred to in the contract and the contract states that part of the Handbook has contractual effect. The handbook itself states that Section two of the handbook, has contractual effect and contains a term empowering the Respondent to lay the Claimant off for short periods of time. From the documentation and wording used in the contract of employment it appears that this term has been incorporated into the contract: whilst it is in the staff handbook, the Claimant has signed the contract and therefore acknowledges he agrees to be bound by the term of that contract, which, expressly refers to the handbook at various points and highlights the contractual effect of parts of that Handbook. The Claimant confirmed he received a copy of this handbook.
