Are islanders’ jobs adequately protected?
IN THE island’s 1998 Employment Protection Law it says in the ‘Unfair Dismissal’ section that it is for employers to establish the ‘capability and qualifications’ of the employee to do the job they are offered. This appears to inform employers of their obligations to their employees regarding their employment.
However, in a recent case a judge ruled that, because this statement appears in the Unfair Dismissal section, it only counts after the dismissal has taken place and passed to the Unfair Dismissal stage where it can be used as a reason for compensation which, at the time of the situation being judged, was payment of a few months’ salary and ‘No Reinstatement’, a phrase that confirms the law has failed to perform its intended purpose and that the employer’s obligation has no effect on ‘protection’.
What is the point of the employers obligations being included in the Employment Protection Law when, in reality, they serve no purpose to the title of the law in which they appear?
The complainant who had been offered a ‘take it or leave it’ change of position from the specialist post for which he had been employed, to a different specialist post in an area he had no talent or qualifications and had never worked in before suggested the offer contravened the law. The judge disagreed and clarified the situation in answer to a scenario put by the complainant that this meant that employers could offer a change of job offer to a cleaner, for example, to take on a specialist technical role and then sack them if they refused it. The judge said ‘Yes they can’, and then gave this explanation.
It is potentially ‘fair’ and within Guernsey law for an employer to make a ‘change of job offer’ to any employee despite that employee having no talent in the post being offered and no qualifications – providing the procedure was also ‘fair’. Are islanders aware of this?
Firstly, in no stretch of the imagination can it be considered even ‘potentially’ fair to offer someone a position they are unable to fill.
Secondly, the procedure is irrelevant if the unfair job offer still remains.
Thirdly, what is the point of any employer making an offer like this unless it is an obvious, malicious move to remove the employee from the workforce?
To sum up why were the obligations put in this law if it was not to prevent exactly this type of job offer?
Comments from employers and employees would be welcome.
J F BEASLEY