GIBRALTAR Law and Practice Contributed by: Nick Cruz, Marc X Ellul, Arcelia María Hernández-Cordero and Kayleigh-Anne Revagliatte, Ellul & Cruz
If the employee is paid more often than monthly, notice periods are as follows: • less than two years’ service – one week; • between two and five years’ service – two weeks; • between five and eight years’ service – four weeks; • between eight and ten years’ service – eight weeks; and • more than ten years’ service – 13 weeks. Employment contracts can provide for longer notice periods and for payment in lieu of notice. Dismissal Without Notice and Breach of Contract Claims Employees can be dismissed without notice in cases of gross misconduct. Otherwise, failure to provide appropriate notice will give rise to a claim for wrongful dismissal. Fixed-term employees who are dismissed before the expiry of their contract are entitled to 50% of the sum that would have accrued during the unex - pired period of the contract. The employer must file a Notice of Termination with the Department of Employment within seven days of the dismissal. To avoid breach of contract claims, the employer must comply with any contractual obligations regarding ter - mination. A fair process must be conducted to avoid claims for unfair dismissal. Although not a statutory requirement, the Employment Tribunal will consider the process followed by the employer. Different considerations will apply in cases where dis - missal is on the grounds of capability or redundancy. 7.3 Dismissal for (Serious) Cause Generally speaking, an act of gross misconduct is considered to be serious enough to overturn the con - tract between employer and employee, thus justifying summary dismissal. It is still vital that the employer follows a fair procedure as for any disciplinary offence. Failure to establish the facts before taking action and failure to hold a meeting with the employee, as well as denying the employee the right to appeal, are highly
likely to be considered unfair at an Employment Tribu - nal and lead to a claim against the employer. 7.4 Termination Agreements The conditions regulating compromise contracts in respect of complaints presented to the Employment Tribunal for harassment or discrimination are set out in Section 62 (2) of the Equal Opportunities Act 2006. The conditions under Section 62 (2) are that: • the contract must be in writing; • the contract must relate to the particular complaint; • the complainant must have received advice from a relevant independent adviser as to the terms and effect of the proposed contract and, in particular, its effect on their ability to pursue a legal com - plaint; • when the adviser gives the advice, there must be in force a contract of insurance – or an indemnity provided for members of a profession or profes - sional body – covering the risk of a claim by the complainant in respect of loss arising as a conse - quence of the advice; • the contract must identify the adviser; and • the contract must state that the conditions regulat - ing compromise contracts under Section 62 (2) are satisfied. A person is a relevant independent adviser for the pur - poses of Section 62 (2) if: • they are a qualified lawyer (barrister or solicitor); • they are an officer, official, employee or member of a trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union; or • they work at an advice centre (whether as an employee or a volunteer) and have been certified in writing by the centre as competent to give advice in relation to employment and equal opportunities law and as authorised to do so on behalf of the centre. A person is not a relevant independent adviser in rela - tion to the complainant if:
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