The issue of representation at disciplinary and grievance hearings is relevant to employers and employees alike. Recommendations by the Jersey Employment Forum could lead to changes to the "Disciplinary and Grievance Procedures" Code of Practice, which in turn could lead to the need for changes to policies and procedures.
Currently, Part 7A of the Employment (Jersey) Law 2003, as amended, provides very basic provision for representation, namely, it is the right of an employee to be represented in disciplinary hearings where that hearing could result in some formal action being taken against the employee and in grievance hearings.
The employee has the right to take one of the following types of representative to such a hearing:
- A fellow employee who is employed by the same employer;
- An employee or an official of a trade union that is registered under the Employment Relations (Jersey) Law, 2007.
If an employer decides to permit some other form of representative to attend, then the law does not prevent this.
Article 78A of the law sets out the parameters of the role that any representative can play during the hearing.
The "Disciplinary and Grievance Procedures" Code of Practice is approved under Article 2A of the law.
Due to the above being considered inadequate in many day-to-day instances, the Jersey Employment Forum undertook a consultation on the issue in June 2011, which resulted in a 25 page report and recommendation to the Minister for Social Security. It included a consideration of the following instances:
- where the employee is a vulnerable person;
- where the employee is under aged 18;
- where the employee is the sole employee of the business;
- where the employee may be prevented from following his or her profession;
- where the employee is appealing against a dismissal decision;
- where related criminal charges are in progress against the employee.
The main points of the recommendation on each of these is summarised in the report but the key issues appear to be the following:
Review of the code
On 1 November 2011, the States decided that the law would not be amended to extend the types of representative permitted in both disciplinary and grievance hearings and the remit of the consultation was to review the code, which cannot overturn that decision or supersede statutory rights.
The definition of "vulnerable" was "someone who is or may be in need of support by reason of mental or other disability, age or illness and who is, or maybe unable to protect him or herself against significant harm". There was concern about who would ultimately make the decision about whether an employee was vulnerable or not, and that the term was too broad and also likely to put extra cost and burden on the process. Although there was support for other types of representatives in certain circumstances, it was unclear what form these should be.
Many did not consider that friends, family members or lawyers were appropriate. Some employers accepted that the following could be appropriate: a mental health worker, a support worker, a therapist or a key worker who has been assigned through official means, i.e. Health and Social services, Social Security, depending on the individual employee concerned. In other instances, a medical practitioner or someone from the Jersey Employers Network on Disability may be most appropriate.
An employee under the age of 18 may need to have an appropriate adult with them (for example, someone chosen from the list of persons on the police Appropriate adult scheme). If they were the parent or guardian of the young employee, there is the potential for them to be too closely related for the issue or process not to become personalised.
Bullying or harassment
Where there is an allegation of possible bullying and/or harassment, the Jersey Community Relations Trust considered that someone needs to be allowed to attend who can provide the employee with additional emotional support, if required.
Other types of representative
It was thought that the definitions of which circumstances should permit other types of representative should be narrow and specific so as to prevent misuse and avoid difficulties in determining whether they are applicable to the particular employee. Confusion and delay in arranging hearings were considered to be potential issues which may arise.
Others commented that employers should simply be allowed to apply their own discretion within the existing legislation and guidance and it was also noted that the UK does not have any additional provisions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.