A clear identification of contractual and non-contractual benefits avoids confusion. If you feel that you have not been paid properly, the first step is to document the problem in writing to the employer. Specify exactly which payments were not made, by . B regular wages, overtime, sickness benefits or missed paycheque. If the Personnel Manual contains contractual rights, the Jersey Labour Court has indicated that employees should have easy access to them, otherwise the requirements of section 3 of the Employment (Jersey) Act 2003 may not be met. Whether you have to reimburse this service or not depends on the contractual agreements. It is not uncommon for the terms of a benefit granted to stipulate that a full or partial refund should be made if you leave the employment relationship within a certain period of time. Alternatively, there may be a provision that a deduction is made from your last salary. To avoid confusion, manuals should be divided into sections that clearly indicate which section contains contractual rights and which section contains discretionary benefits. As an additional protection, non-contractual services should not be referred to as “claims”. It is common for bonuses to be a mix of both.
For example, an employer may grant the employee a contractual right to be eligible for the bonus program, but it is at the employer`s discretion how much the employee receives. The section on sickness benefits of the manual published in April 2005 established a right to higher sickness benefits. The Manual stated that, even if it had not been contractually agreed, any proposed changes would be subject to consultation and negotiation. It is apparent from that judgment that, when granting a discretionary advantage, the employer must ensure that it is not implicitly or contractually agreed. Around April 2005, the applicant was issued and signed his employment contract. Under the contract, he was entitled to higher sickness benefit in “exceptional or deserved” cases at his employer`s discretion. The contract specifically referred to the staff manual on sickness benefits. It concluded that the manual was not contractually bound.
This was repeated in the manual itself. In Watkins v. Journeys Towards Recovery ET/1606842/10, the Court found that parts of a manual described as non-contractual were in fact included in the applicant`s employment contract. It is important to remember that not all conditions that must be set out in the written statement of employment need to be contractual. For example, while it is necessary to make arrangements for disciplinary and complaint procedures, jacS would advise making it clear that these are not contractually bound. In other words, the procedures specify how disciplinary measures or complaints are handled, but the fact that they are not contractual means that the procedure does not have to be followed to the letter. If your employer removes a contractual benefit (which they may consider when finances are tight), you have several options. You can continue to work and accept the violation, but you will not be able to easily withdraw from this position, especially if a longer period has passed.
Alternatively, you can continue to work, but “under protest” by making it clear that you do not accept the violation. This would give you the opportunity to make a claim at a later date. Overall, premiums can be contractual or discretionary in nature. It found that the sickness benefit provisions of the Personnel Manual had been included in Mr Watkins` employment contract. A general finding that the manual was not contractually bound was not sufficient to make it so if it contained important conditions which were not included in the employment contract but which were expressly mentioned in the employment contract. It also noted that the claimant had not accepted the amendments to his contract, either expressly or implicitly. When looking at the “employment package”, there can easily be confusion between the benefits to which employees are contractually entitled and the discretionary benefits, i.e. the employer can choose whether or not to apply in a particular case.
Finally, it should be noted that if an employer wishes to change a contractual claim, these changes must be agreed with the employee after a consultation phase – see Modifying a contract. Employees and contract workers have the right to expect to be paid, and it`s hard to know what to do if your paycheck doesn`t arrive. If the bonus is contractual, the employer must make these payments if the employee meets the required criteria. For example, if you set clear performance goals and the employee achieves them, you will have to pay the bonus. The wording associated with any benefit can also be misleading. The use of words such as “entitled person” has led the courts to rule that the term should be interpreted as a contractual right (Court of Appeal: Keeley v. Fosroc International Ltd 2006). For example, if sickness benefit is to be at the discretion of the employer, it is not advisable to make a statement in the manual, for example .B. “Employees with less than two years of service are entitled to two weeks of sickness benefit.” The words “. are entitled to… ” would likely mean that sickness benefit would be interpreted as a contractual right, regardless of the employer`s intention.
However, in many cases, benefits appear along with other terms, policies and procedures in an employee handbook or corporate intranet and are referred to as “non-contractual”. In these cases, an employer has much more leeway to withdraw benefits. However, it can be argued that if it has continued to be provided for a long period of time, the service has become an “implied contractual clause” and therefore has full contractual status. Employers would then have the same difficulty in imposing a change as if the benefit was originally a full duration of the contract. The factors that can be taken into account in determining whether a bonus system is discretionary or contractual are the formulations used. The use of words such as “right” or “will be paid” may indicate that the plan is indeed contractually bound. Other relevant factors are the frequency of these payments and the basis on which they are made. Employees and contract workers (independent contractors) (including freelancers and home-based contractors) have different compensation situations and legal protection in the event of non-payment.
Finally, employers must be very careful that, when exercising their discretion, they are not allowed to do anything that could constitute discrimination […].