Jersey: Carey Olsen Starting Point Employment Law Guides: Disciplinary Issues

Introduction

Carey Olsen Starting Point Guides are intended as a general introduction and guide to different aspects of Jersey law.

They are a summary of the most important issues that we come across. It is very much the edited highlights of those issues. If you would like legal advice in relation to any specific circumstances, please do give us a call.

The aim of this Starting Point Guide is to:

  • raise management awareness of the issues surrounding disciplinary issues; and
  • ensure that managers are provided with practical and easily understood tools to be able to manage disciplinary issues within their teams.

This Starting Point Guide should be read in conjunction with your organisation's disciplinary policy and procedures.

Managing conduct

The management of conduct is a process which seeks to maximise the performance of the organisation through enabling individual employees and teams to achieve high levels of performance through positive behaviours and conduct.

  • Recruitment and Retention – getting and keeping the right people is key to achieving high standards.
  • Standards of Behaviour – individuals and teams need to know what is expected of them; be clear and be consistent.
  • Confronting Problems – unless employees know that their conduct is unacceptable, how can they improve?

Why is it so important?

Ensuring that standards of conduct and behaviour are set and adhered to helps individuals, teams and organisations to achieve a happier and more productive workplace and thereby assist in achieving and maintaining high levels of performance.

More fundamentally, the unfair dismissal regimes in both Jersey and Guernsey identify conduct as a potentially fair reason for dismissal. A dismissal on conduct grounds will however generally only be fair as long as the employer can demonstrate that a full and fair procedure has been followed (see the section on Corrective Action) below.

Setting standards

Employees must:

  • know the standard of conduct and behaviour expected of them and be encouraged to seek clarification if unsure;
  • be kept informed of progress at all stages of any formal procedure;
  • be advised that they may be represented by a colleague or trade union representative; and
  • undertake any additional training or development or other remedial action recommended by their supervisor or Manager.

Managers must:

  • know and communicate the standard of conduct and behaviour expected of their staff and provide clarification where appropriate;
  • monitor and manage conduct and behaviour appropriately;
  • investigate all the salient facts;
  • advise or warn the member of staff of the problem as soon as their conduct and behaviour falls below expected standards;
  • inform the member of staff that they may be represented at the formal stages by a colleague or trade union representative;
  • take any appropriate action to assist and support the member of staff during any review period (whether formal or informal); and
  • maintain a complete, written record of all discussions and actions throughout the formal process. This record is confidential and should be restricted to those who need to know, i.e. the member of staff, those involved in the process and HR.

Corrective action

Disciplinary procedures

Disciplinary procedures are designed to manage staff whose conduct and behaviour is not of an acceptable standard.

They do not generally form part of contracts of employment although they may result in contractual consequences (such as the termination of a contract of employment).

Employers naturally seek to ensure that staff achieve and maintain a high level of conduct and behaviour in their work. To this end managers need to ensure standards are established, conduct and behaviour is monitored and that staff are given support to meet these standards. When it is apparent that a member of staff is not adhering to the required level of conduct and behaviour, managers need to confront matters at an early stage.

When are disciplinary procedures not appropriate?

In certain circumstances it may not be appropriate to apply a disciplinary procedure. For example:

  • the disciplinary policy may state that it does not apply to new staff who are still within their probationary period (although such staff are often appraised);
  • cases of capability and/or poor performance should be handled under performance management procedures; or
  • cases of incapacity due to ill health may initially be handled under incapacity/sickness absence procedures.

It is often difficult for managers to decide which procedure should apply. The following guidance may assist:

  • if the employee is unable to deliver the requisite performance, consideration should be given to:
    • performance procedures; or
    • incapacity/sickness absence procedures (in the event of ill health);
  • if the employee is unwilling to deliver the required standard, disciplinary procedures should be considered.

There is a degree of overlap - HR specialists can assist in deciding the best course of action.

Lack of Capability implies that there is no element of choice in the employee's failure to measure up to the required standards. This may be due to an innate lack of ability, skill or experience or to a lack of adequate training and/or supervision. In these cases, staff should be given reasonable help and encouragement to reach a satisfactory level of performance, before any formal action is embarked on. The organisation also needs to make sure that objectives, expectations and standards are clearly documented at the outset.

Download - Carey Olsen Starting Point Employment Law Guides: Disciplinary Issues (November 2016)

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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