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
where the employee is appealing against a dismissal
where related criminal charges are in progress against the
The main points of the recommendation on each of these is
summarised in the report but the key issues appear to be the
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
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
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.
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