Employment: Disciplinary and Grievance Procedures – Code of Practice – White Paper – September 2013.

STATES OF JERSEY

EMPLOYMENT: DISCIPLINARY AND GRIEVANCE PROCEDURES – CODE OF PRACTICE – WHITE PAPER – SEPTEMBER 2013

Presented to the States on 10th September 2013 by the Minister for Social Security

STATES GREFFE

2013   Price code: C  R.109

Social Security Department

White Paper

D  isciplinary and Grievance Procedures Code of Practice  12th September 2013 Purpose and type of consultation

To invite written comments on the Disciplinary and Grievance Procedures' Code of Practice prior to the Minister formalising the Code of Practice by Order under the Employment (Jersey) Law 2003.

Closing date: 7th November 2013 _____________________________________________________________________

Summary

A  revised  Disciplinary  and  Grievance  Procedures'  Code  of  Practice  has  been prepared following consultation undertaken by the Employment Forum.

The purpose of this Code of Practice is to help employers and employees in businesses of all sizes to deal with matters relating to discipline and grievance in a fair and appropriate way.

Article 2A of the Employment (Jersey) Law 2003 (the Employment Law') enables the Minister for Social Security (the Minister') to approve codes of practice for the purposes  of  the  Employment  Law,  subject  to  certain  requirements  being  met, including a requirement to consult stakeholders.

Your submission:

Please note that consultation responses may be made public (sent to other interested parties on request, sent to the Scrutiny Office, quoted in a published report, reported in the media, published on www.gov.je, listed on a consultation summary, etc.).

Please delete the following as appropriate:

• I agree that my comments may be made public and attributed to me
• I agree that my comments may be made public but not attributed (i.e. anonymous)
• I don't want my comments made public

Background

Article 2A of the Employment Law requires that, prior to approving any Code of Practice for the purposes of the Employment Law, the Minister must publish a notice in the Jersey Gazette –

1. stating  that  a  copy  of  the  Code  of  Practice  will  be  available  for inspection during normal working hours, free of charge, at a place specified in the notice;
2. specifying a period during which it will be available for inspection (being a reasonable period of not less than 21 days, beginning after the notice is published); and
3. explaining that anyone may make representations in writing to the Minister in respect of the Code of Practice at any time before the expiry of the 7 days following the period for inspection.

In addition, the Employment Law requires the Minister to consult the Jersey Advisory and Conciliation Service (JACS), the Employment Forum (the Forum') and other persons, or representatives of such persons that might be affected.

Employment Forum consultation

Earlier this year, the Minister directed the Forum to review and circulate Code of Practice and to make a recommendation to him. The Forum consulted during the period 25th February to 1st April 2013; details of which are on the website1.

The Forum presented its recommendation to the Minister on 25th July 2013, which included a revised Disciplinary and Grievance Procedures' Code of Practice. The Forum had concluded that, rather than modifying and revising individual elements of the Code of Practice, it would be beneficial to provide a simplified procedure. The Forum commented that: "the revised draft code of practice would provide greater clarity and a more straightforward approach that provides sufficient flexibility for any size of business. The revised draft code of practice covers the fundamental principles of a fair process which are set out in a logical order, using clearer language."2

Revised Code of Practice

The Minister presented the Forum's recommendation and the revised Code of Practice to the States on 6th August 2013. The Minister then considered the Forum's Code of Practice in conjunction with JACS and decided to make some minor revisions before inviting comments. Those revisions are shown as tracked changes in the attached Code of Practice. The two most significant of those changes are –

1 www.gov.je/Government/Consultations/Pages/CodesPracticeEmploymentForum.aspx 2 Page 15 of the Forum's recommendation, included in the Minister's report to the States

(R.98/2013) www.statesassembly.gov.je/AssemblyReports/2013/R.098-2013.pdf  

1. Paragraph 3 – The Minister has listed as one of the basic standards of reasonableness that the employee should have the right of appeal if the employer has taken disciplinary action. The Minister noted that it is evident from the decisions of the Tribunal that it will expect to see a right of appeal in a reasonable process, and the requirement for a right of appeal was already specified in the Code of Practice (paragraphs 43 to 46 and 58 to 61).
2. Appendices – The Minister has removed the appendices from the Code of Practice. The Minister considered it to be potentially confusing to include appendices that do not form part of the Code of Practice because it leaves their status questionable. The Minister decided that it would it be clearer for employers if there were only 2 sources of information; codes of practice that the Tribunal must consider, and JACS guides that the Tribunal is not required to consider. The appendices have been removed from the Code of Practice and will instead form the basis for JACS guidance. All references to the appendices in the Code of Practice have been replaced with references to JACS guidance.

The Minister believes that the Code of Practice is a great improvement and that a simplified, more streamlined procedure should make it easier for business of all sizes to take appropriate steps to provide a fair disciplinary and grievance procedure. The revised Code of Practice will help to address one of the findings of the recent review of the Employment Tribunal's decisions[3] – that we should increase employers' awareness of the need to provide fair warning of dismissal in order to help avoid employment disputes.

The Minister invites representations from stakeholders and will consider any comments received before making the Code of Practice by Order under the Employment Law.

Please submit your comments by 7th November 2013 by e-mail or by post to:

Kate Morel

Policy Principal

Social Security Department Philip Le Feuvre House

La Motte Street

St. Helier

JE4 8PE

Telephone: 01534 447203 E-mail:  K. Morel @gov.je  

Please provide the following information with your comments –

1. Your name and contact details.
2. Specify whether your comments are submitted on behalf of a particular business or organisation.
3. Indicate whether your comments may –

1. be made public and attributed to you;
2. be made public but not attributed to you (i.e. anonymous);
3. not be quoted publicly at all.

This Consultation Paper has been sent to the following:

The Public Consultation Register

The Employment Forum's consultation database

Supporting documents attached:

Disciplinary and Grievance Procedures Code of Practice (showing tracked changes).

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