JFSC’s "toxic" battle with ex-employee spills into Royal Court

Tuesday 16 June 2020

Details of a “toxic” relationship between Jersey's finance regulator and a former worker were heard in the Royal Court yesterday, as part of a legal battle centred on whether the actions of JFSC forced the employee to quit her job.

The hearing came after former Head of Communications Emma Mathew brought a claim of constructive unfair dismissal to the Employment and Discrimination Tribunal last year, stating that the way she had been treated had led her to resign.

The JFSC in turn appealed to the Tribunal to strike out the claim, but the Tribunal felt the case should still be heard. 

Disagreeing with the decision, the JFSC yesterday stepped up its battle, appealing to the Royal Court to stamp out the proceedings. 

The substance of the JFSC’s claim was that Ms Mathew had started working in a new job as the Government of Jersey’s Head of Communications for Justice and Home Affairs just days before her gardening leave was finished.

Having worked for the JFSC for over four years, she resigned on 7 January 2019, giving three months’ notice, meaning her contract would come to an end on 6 April. 

However, she started her new role in the Government on 1 April.

Pictured: Ms Mathew filed a complaint for constructive unfair dismissal against the JFSC in May 2019.

On 31 May 2019, she filed a complaint for constructive unfair dismissal against the JFSC. Her claim also made reference to a discrimination claim which she later withdrew.

On 25 June 2019, the JFSC brought a counterclaim asking for the salary it had paid between 1 and 6 April 2019, which Ms Mathew said she would be fighting, acknowledging she had indeed started other employment on 1 April.

The JFSC argued that Ms Mathew starting another job meant she had “resigned on her own initiative” and applied for her claim to be struck out. In addition, they said that if there had been a dismissal, the claim had been made after the deadline of 26 May as her contract had ended on 1 April.

The JFSC’s application was heard on 17 January 2020 by Hannah Westmacott, Deputy Chair of the Employment Tribunal. Advocate Vicky Milner argued that Ms Mathew starting work with a new employer had been a “deliberate act... which amounted to a repudiatory breach” of her contract. 

Pictured: The JFSC argued that Ms Mathew's contract had ended on 1 April following her resignation.

Ms Mathew, represented at the time by Dexter Flynn, argued in return the start of her new role didn’t alter the end of her contract with the JFSC.

She argued the Commission would not have taken issue with her starting work with the Government – as the JFSC didn’t want her to go back to work for them – “were it not for the fact that it enabled [the JFSC] to bring this application to strike out”.

The Tribunal eventually ruled in favour of Ms Mathew, concluding that her conduct had not been “serious enough” to be treated as repudiatory and that therefore she had not resigned. “It was merely a breach that meant that the contract subsisted, and [the JFSC] had a choice between dismissing the Claimant or claiming damages,” the Deputy Chairman wrote.

In her judgment, she noted that the JFSC appeared to be “seeking to benefit from the Claimant’s alleged wrongdoing by requesting that a potentially valid claim... be struck out”.

The Tribunal Chairman, Hilary Griffin, allowed the JFSC to appeal that decision, a case which was heard by the Bailiff, Timothy Le Cocq, in Royal Court yesterday.

Pictured: The Tribunal eventually ruled in favour of Ms Mathew concluding that her conduct had not been “serious enough” to be treated as repudiatory.

Advocate Milner suggested the Tribunal had “erred in law” in allowing Ms Mathew’s claim to proceed.

She said that a contract of employment remained live during a notice period and that both parties remained subject to its terms and conditions, which in the case of Ms Mathew included the “main duty” of not going to work for somebody else.

She argued Ms Mathew could have received payment in lieu of notice and “that would have been the end of it” but had instead wanted to remain employed and signed off or put on garden leave until 6 April. She also argued Ms Mathew could have asked to leave earlier. 

While Ms Mathew was not working during her notice period – she was signed off and then on garden leave – Advocate Milner said she was still required to perform her obligations under the contract just as the JFSC was required to perform theirs.

She concluded her submission saying the only decision that could have been reached by the Tribunal was that Ms Mathew had “repudiated her contract by walking out of her employment and into her contract with the States of Jersey” and that her contract had ended on 1 April by way of resignation.

Pictured: The Bailiff, Timothy Le Cocq, heard the JFSC's appeal.

Advocate Ashley Hoy, who was representing Ms Mathew, described the relationship between his client and the JFSC as “toxic” and said there was a “lack of desirability of contact” between the two parties.

He argued that the JFSC knew of her new role, relying on text communications between her and the JFSC.

Advocate Hoy said it couldn’t be said the Government were competitors for the JFSC and that therefore Ms Mathew’s move couldn’t have caused detriment to the regulator. 

He rejected the view that not going to work for someone else was a fundamental issue of contract, as consent could be given to allow an employee to finish their notice earlier. 

The Bailiff has reserved his judgment, which will be released at a later date.