Ian Watts – providing legal services in Gibraltar since 2002
The Sources of Law
Gibraltar Employment Law Legislation
Employment Law in Gibraltar is essentially statute-based. The principal statute is the Employment Act 1932 (as amended) which is styled on British Industrial Law principles.
The following are English Statutes, certain provisions of which, are incorporated into the local Employment Act 1932: –
- The Truck Act 1831 (1 & 2 Will. 4 c. 37)
- The Employment of Women, Young Persons and Children Act 1920 (10 & II Geo. 5 c. 65)
- The Equal Pay Act 1970 (1970 c. 41)
European Union Law – Employment
EU Law also forms part of the laws of Gibraltar (Gibraltar is not a member in its own right but comes under Her Majesty’s Government for the United Kingdom as a territory for whose external relations she is responsible for). I should add that whereas Gibraltar is within the EU, she is outside the Customs Union; the VAT Directive does not apply in Gibraltar; and, Gibraltar is exempted from provisions of the Common Agricultural Policy (‘’CAP’’).
Transposition of EU Directives
Her Majesty’s Government for the United Kingdom is ultimately responsible for the transposition of EU Directives by the Gibraltar Legislature into domestic legislation. The Employment Act therefore transposes several framework directives such as, for example, that relating to collective redundancies; transfers of undertakings, businesses or parts of businesses; the supplementary pension rights of employees and self-employed persons moving within the EU Community; including, the Temporary Agency Workers Directive.
Various Items of Employment Legislation in Gibraltar
The Employment Act 1932 (as amended) also contains provisions on Equal Treatment in the workplace as well as on the law relating to ‘’whistle-blowing’’. Importantly, s.59 of the 1932 Act statutorily enshrines the right of an employee not to be unfairly dismissed by his employer.
Subordinate legislation is also made under the enabling provisions of the Employment Act 1932– these include, for example, rules concerning the establishment and constitution of the Gibraltar Employment Tribunal and other rules and regulations transposing EU Directives into Gibraltar Law.
Other statutes on Gibraltar employment law include the Equal Opportunities Act 2006 which transposes into municipal law, inter alia, EU Directives relating to the principle of non-discrimination in the workplace on grounds of e.g. sex, age or disability.
Enforcement of Employment Law Rights in Gibraltar
Gibraltar Employment Tribunal
In Gibraltar, the machinery for the enforcement of employment rights generally falls within the jurisdiction of the local Employment Tribunal (”formerly known as the Industrial Tribunal” until October 2016): however, some employment claims may be brought directly before the Supreme Court of Gibraltar in its original jurisdiction – for example, the Equal Opportunities Act 2006 specifies certain claims that may be brought in the Supreme Court.
Rules of Procedure
The Employment Tribunal is a creature of statute. The Employment Tribunal (Constitution & Procedure) Rules 2016 provide a comprehensive procedural code for the resolution of industrial disputes. The Rules provide for, inter alia, an ”overriding objective” in dealing with cases, an encouragement upon the Tribunal, wherever appropriate, to encourage the parties to resolve their disputes by recourse to mediation or ADR and powers of the Tribunal to make Case Management Orders.
Appeals to the Supreme Court of Gibraltar
Appeals from the Employment Tribunal on points of law lie to the Supreme Court of Gibraltar. The procedural regime dealing with appeals to the Supreme Court are contained in the Employment Tribunal (Appeals) Rules 2016.
Gibraltar Employer Insolvency
The Gibraltar Development Corporation (Employers Insolvency) Regulations 1991 transpose into Gibraltar employment law the provisions of EU Directive 2008/94/EC on the protection of employee rights in the event of an employer insolvency.
An employer insolvency scenario may arise in the case of an employer who is an individual or a partnership (in which case the process is one of ‘bankruptcy’); or in the case of an employer who is a Gibraltar company, in which case, the process is one of liquidation. Either way, employees of an insolvent employer in Gibraltar will, to a certain extent, be preferential creditors in the insolvency proceedings.
The Gibraltar Regulations allow employees to make a claim against a local fund established for the purposes of giving effect to the EU Directive aforesaid. Claims which can be made against the fund include the following:
- Unpaid wages, including payments in lieu of notice
- Unpaid bonuses and commissions earned
- Holiday pay
- Redundancy payments
- Rights in the context of employer contribution to pension schemes
- Awards made by the Gibraltar Employment Tribunal in respect of unfair dismissal claims.
For further information on Employment Law in Gibraltar, please contact Ian Watts.
©Ian Watts, Barrister-at-Law, 2017-2021. All Rights Reserved.