News and Insights
22 March 2022
As a result of Covid-19, numerous people have been forced to work remotely. While the increasing digitisation of business means that remote working is far more common than it used to be, the concept is not new.
For decades, there have been Jersey registered companies which employ staff, under Jersey law governed contracts, working in other jurisdictions. This has frequently been seen in relation to peripatetic staff, such as private pilots, and workers who are literally offshore, such as those who work on oil rigs and ships.
Governments use contractors to provide services to armed forces personnel on operations. International contractors with staff deployed in Iraq and Afghanistan, or Ukraine in relation to the current conflict, may elect to base their headquarters in a politically stable jurisdiction and employ their staff through the HQ company.
There are many unanswered questions around the P&O case. It has been reported though that the employees who worked on ferries based in Dover were employed on Jersey law governed contracts, by a business (DP World) which is owned and managed in Dubai.
Arrangements where employees are not physically located in the same jurisdiction as their employer are rarely straightforward. They can raise questions in relation to tax, social security, insurance and health and safety law requirements. There are also questions around the security of electronic communications, data protection (where exactly is the data in question?) and confidentiality (who else is in the room on that sensitive call?). As the P&O situation demonstrates, there are also material issues around employee rights.
Difference between choice of contract law and applicable legislation
Under Jersey law the parties to a contract may, within reason, choose the law which will apply to their agreement (the “governing law” of the contract). Commonly where the employer is a Jersey registered company or a Jersey partnership, operating in Jersey, it is normal and appropriate that the governing law of the employment contract will be Jersey law, even if it has been agreed that the employee will work wholly or mainly outside of Jersey.
However, the legislative and regulatory regimes which apply where the work is done are generally mandatory. Often the laws of the place where the employee works will automatically be imposed – which in turn can raise a question about the meaning of “place of work”, where someone is working remotely.
In such circumstances, where the employing entity is in Jersey and the employee is working elsewhere there may be a difference between the law relating to:
- The contractual terms between the parties; and
- The statutory provisions and protections which apply to their relationship.
It is important to be aware of this distinction because if someone works entirely abroad, then even if they work for a Jersey employer they may not have the benefit of protection under the Employment (Jersey) Law 2003 (the “Employment Law”). In particular, if the person is dismissed from their employment they may have no right of recourse to the Jersey Employment & Discrimination Tribunal (a statutory body) because:
“[The Employment Law] applies to an employment which requires the person to work wholly or mainly in Jersey.” (Article 101.)
This issue has been addressed in Jersey cases including Wagner v Aviation Staffing Limited (1903-038/09) and Dickson v Ocean Rig Offshore Management Limited TRE077. It is a matter on which there has been a certain amount of lobbying on behalf of employees in recent years. Why should two employees of Jersey registered companies be in different positions as to employment protection purely because of where they carry out their work? The answer to this is that legislation is inherently territorial: broadly speaking, a government can only legislate for what happens within its own borders. While some jurisdictions (such as Afghanistan) may have quite limited labour rights other countries (such as England) may provide more extensive employment protection than that available in Jersey. Consequently, it is not the case that all employees working outside Jersey are in a worse position than those physically based here.
The position is further complicated where the employees are seafarers – marine law is a whole different barrel of ship’s biscuits. Article 101(2) of the Employment Law states:
“(2) This Law also applies to an employment on a Jersey ship unless –
(a) The employment is wholly outside Jersey; or
(b) The employee is not ordinarily resident in Jersey.
(3) In this Article –
(a) “Jersey” includes the territorial waters adjacent to Jersey; and
(b) “Jersey ship” has the meaning given in Article 2 of the Shipping (Jersey) Law 2002.”
In relation to P&O, a person who is employed by a Jersey company, under a Jersey law governed contract, but who is based in Dover, may be protected by English unfair dismissal legislation.
The way in which the P&O situation has been mismanaged, with hundreds of employees, including staff with over 30 years’ service, being fired by video link, has been widely condemned. The Archbishop of Canterbury, Justin Welby, issued a statement on Friday which begins with a biblical quote:
“But let justice roll down like waters, and righteousness like an ever-flowing stream.”
There are long-established obligations on employers, such as the need to consult employees before redundancies are made, which appear to have simply been ignored. (Having said that, the references to “redundancy” seem to have been pure fiction, given the bus loads of replacement workers waiting to take over.) It seems highly likely that further industrial action will follow. It is hoped that employers in Jersey, England and elsewhere will learn a salutary lesson from the P&O case.
Viberts provide advice on all aspects of Jersey law including redundancy, unfair dismissal, industrial disputes, offshore employment and Tribunal and Royal Court action.