Suspension of States employees and States of Jersey Police Officers: revised procedures (P.46/2009) – second amendment.

STATES OF JERSEY

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SUSPENSION OF STATES EMPLOYEES AND STATES OF JERSEY POLICE OFFICERS: REVISED PROCEDURES (P.46/2009) – SECOND AMENDMENT

Lodged au Greffe on 21st April 2009 by the Chief Minister

STATES GREFFE

2009   Price code: B  P.46 Amd.(2)

SUSPENSION OF STATES EMPLOYEES AND STATES OF JERSEY POLICE OFFICERS: REVISED PROCEDURES (P.46/2009) – SECOND AMENDMENT

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1. In paragraph (a)(ii), after the word "representative" insert the word "or" and delete the words "or friend".
2. In paragraph (a)(iii) for the words "a panel drawn from within the public service which shall be independent of the department where the suspended person  is  employed  and  which  will  report  its  findings  to  the  States Employment Board" substitute the words "the States Employment Board or in the case of Police Officers, an appropriate senior officer, in conjunction with the appropriate Chief Officer".
3. Delete paragraph (a)(iv).
4. In paragraph (b) for the words "42 days" substitute the words "3 months".

CHIEF MINISTER

REPORT

1. The  proposition  seems  to  be  based  on  a  misunderstanding  that  States employees and Police Officers are suspended without any real thought being given to the decision and almost "in the heat of the moment" and that once suspended, they are effectively forgotten about! Nothing could be further from the truth. First, only a Chief Officer, or his/her nominee (clearly a senior manager), has the authority to suspend an employee. Second, an employee is suspended  because  of  alleged  gross  misconduct,  pending  an  investigation and/or hearing, on full pay, and where there is a view that his/her presence at work could interfere with an investigation or pose potential dangers to the department, the public or fellow staff. Thirdly, the department in question invariably incurs significant additional costs in a suspension for, in addition to paying the suspended employee's normal pay, it has to pay overtime costs or the  costs  of  a  temporary  replacement  to  cover  the  suspended  employee's duties. It is simply not true to say that these decisions are taken lightly and that the continued suspension is ignored.
2. The  report  which  accompanies  the  proposition  is  based  on  inaccurate, misleading and unsubstantiated comments. For example –

• The report says that "it is alleged that some employees are still being suspended  without  receiving  anything  in  writing."  This  is  highly unlikely and where is the evidence for this allegation?

• The report says that "it is also apparent that there has been little adherence  to  employees'  Human  Rights".  Again,  where  is  the evidence for this assertion, which is denied by the employer? Paid suspension is a precautionary act only, pending a full disciplinary hearing at which the employee is given the right to present his/her case; the right to representation and the right of appeal if appropriate.

• The report says that "much more needs to be done to ensure that suspensions are not seen to be the first option rather than the last." This is a very sweeping statement. Employees are suspended by a Chief Officer, or his/her nominee, in circumstances of alleged gross misconduct. Suspensions are costly as staff often need to be covered by overtime working or temporary cover in addition to the suspended employee's normal pay which continues to be paid throughout the suspension.

• The report says that "it is not uncommon for employees to be called before an employer and informed that he/she is being suspended and they  would  receive  "something  in  writing  in  due  course".  Again, where is the evidence for this? The practice is that employees are normally advised orally of the reasons for suspension at the point of suspension and these are put in writing within a period of at most 3 days.

• The report says that "examination of some suspensions has shown that investigations' have taken months and even years." Again, this is a misleading statement. Suspensions of this duration are extremely rare

and  normally  occur  only  in  cases  involving  highly  complicated investigations, normally involving Police or criminal proceedings.

• The  report  says  that  "the  suspended  person  is  presumed  guilty therefore there is no need to rush things." This is a gross exaggeration. The  employee  is  not  presumed  guilty;  he/she  is  presumed  to  be innocent until at least the investigation and hearing are completed, let alone any appeal. As stated above, there is every reason to expedite matters given the cost of covering the employee's work in addition to paying his/her normal salary. Suspensions are always deemed to be precautionary only and hence normal salary is paid.

• The report says that "there appears to be an absence of any joined-up approach  or  urgency  when  investigating  suspensions,  particularly Neutral Acts'." Again, where is the evidence for this assertion?

3. The States Employment Board require every suspension to be notified to the Human  Resources  Department;  it  requires  a  Chief  Officer  to  review  the reasons for a continuing suspension in his department every month; and it receives  a  report  every  6 months  on  the  numbers  of  suspensions,  the departments involved, the reasons and the outcomes.
4. It is a fact that the vast majority of suspensions which exceed 28 days do so because  of  complicated  internal  investigations,  police  inquiries  and  legal proceedings involved, and that the procedures proposed in the propositionwould have minimal effect on these.
5. Paragraph (a)(i)  of  the  Proposition  reflects  existing  policy  of  the  States Employment Board. The Board is satisfied now that employees are given a reason for suspension at the point of suspension and that this is followed up in writing within at most 3 days. Indeed, the disciplinary procedure of the largest pay group, the Civil Service, specifically provides for this.
6. The word "friend" in paragraphs (a)(ii) and (iv) of the proposition presents difficulties. In the disciplinary procedures, both the Board and the recognised trade unions invariably try to avoid allowing lawyers to participate in in-house employment  matters.  Their  adversarial  approach  has  a  tendency  to  over- complicate matters and to bring criminal law tests to the proceedings which are out of place in the employment context. By using the term "friend" in this respect,  the  proposition  is  effectively  allowing  lawyers  to  join  the proceedings. Under the Employment (Jersey) Law 2003, employees have a legal right to be represented only by workplace colleagues and trade union representatives  in  grievance  issues.  The  Jersey  Advisory  and  Conciliation Service (JACS) has confirmed that it does not support the use of lawyers in in- house grievances and disciplinary matters and that the intention of modern employment  practice,  as  reflected  in  the  current  Employment  Law,  is  to encourage settlement of issues in a "non legal" framework wherever possible. Amendment (1) seeks to achieve this whilst still allowing a broad level of support.
7. Paragraphs (a)(iii) and (iv) of the Proposition call for a panel drawn from within the public service to review suspensions beyond 28 days. No specific terms of reference are proposed for this panel. This proposal would create difficulties.  Firstly,  it  would  create  the  danger  of  the  panel  effectively

investigating or trying the disciplinary case involved. This would clearly be wrong, and would usurp the authority of the agreed procedures. Secondly, it would be resource-hungry. It is estimated that, given the proposal that the panel actually meets with suspended individuals, their representatives and Chief Officers, some 7 working days per month would be incurred for each panel  member  involved.  In  addition  to  the  time  spent  by  employees  as members of the panel at the review hearings, it is estimated that the process would involve the dedication of half a post to support the administration involved in the proposed process.

8. It is considered that it is the responsibility of the States Employment Board to review  these  cases  with  its  officers  and  the  Chief  Officers  involved,  and amendment (2) acknowledges that.
9. Given that the staff disciplinary procedures for some 20 pay groups will need to  be  amended,  in  agreement  with  appropriate  trade  unions  and  staff associations, 42 days is not long enough a period to implement the changes proposed.  Hence  amendment (4)  proposes  a  period  of  3 months,  which  is more realistic. It is understood that the Minister for Home Affairs will be bringing amendments to this proposition.
10. The Chief Minister and the States Employment Board are very concerned that matters affecting the contractual terms and conditions of States employees and Police  Officers  are  being  brought  to  the  States  Assembly  for  debate  and determination. In as long ago as the 1950s, the States decided that it was not appropriate for 53 States members to determine the terms and conditions of a large and very varied workforce, and appointed appropriate bodies specifically for this purpose. These bodies were initially the Civil Service Board and Establishment Committee; followed by the Human Resources Committee and the Policy and Resources Committee, which had a sub-committee specifically for this purpose; and since 2005 the States Employment Board. These bodies have  exercised  this  responsibility  in  negotiation  and  consultation  with recognised  trade  unions  and  staff  associations.  It  is  regretted  that  the proposition runs counter to this long-standing arrangement.
11. Short of rejecting the whole proposition, Members are urged to support these amendments  which  are  designed  to  improve  as  far  as  possible  a  loosely worded proposition and create a simpler, workable arrangement.
12. There are no additional financial or manpower implications for the States arising from these amendments.