Employment: Disciplinary and Grievance Procedures – Code of Practice – White Paper – September 2013 (R.109/2013) – Summary of Consultation Responses and revised Code of Practice

Subject/reference

Respondent's comment

Minister's response

Paragraph 1

Part 1  of  this  Code  of  Practice applies  in  cases  where  the employee  is  accused  of misconduct  by  the  employer. Disciplinary  situations  can  also include  poor  performance  and capability  issues.  If  employers have  a  separate  capability procedure,  they  may  prefer  to address performance issues under that procedure. If so, however, the principles of fairness set out in this Code  of  Practice  should  still  be followed, although they may need to  be  adapted.  This  Code  of Practice  is  not  intended  to  be followed  in  cases  of  business reorganisation or redundancy. Nor is it intended to cover dismissals based on the fact that the employee is  unable  to  work  because  of sickness or injury. It is important to  remember  however  that  in  all such cases the employer will still be under an obligation to behave reasonably in making a decision to dismiss.

"We do not support the use of this Code  of  Practice  in  capability matters.  As  an  employer operating not only on Jersey but also within the UK and Ireland, we aim to be consistent across all the territories in which we operate and  therefore  make  a  clear distinction between the use of the conduct and capability processes, as  per  best  practice/the  law  in those other territories. Moreover, the  underlying  reasons  for  a capability dismissal are normally outside  the  employee's  control, making the use of a disciplinary process  for  a  capability  matter both  demoralising  and perceptually  unfair  with  a potentially negative impact on the employer  brand."  (Employer, private sector)

"The  code  stipulates  that disciplinary sanctions can include poor performance and capability issues. However it then goes on to stipulate that it is not intended to cover dismissals based upon the fact that an employee is unable to work  because  of  sickness  or injury.  This  may  confuse employers and employees alike as a capability issue can be due to ill health."  (Jersey  Chamber  of Commerce)

The ACAS Code of Practice on  Disciplinary  and Grievance  Procedures' (2009)  states  that "Disciplinary  situations include  misconduct  and/or poor  performance".  This wording accurately describes the  intended  position  in Jersey  and  so  the  Code  of Practice  has  been  amended to state that "Part 1 of this Code of Practice applies in disciplinary situations which can include misconduct and poor  performance".  This will minimise confusion and will  provide  the  requested consistency  for  employers that  operate  across  the  UK

and Jersey.

The code stipulates that it is not intended to be followed in cases of  business  re-organisation  or redundancy.  It  would  also  be useful  to  include  "or  the  non- renewal  of  fixed-term  contracts on  their  expiry"."  (Jersey Chamber of Commerce)

The decision has been taken to  reflect  the  scope  of  the UK Code of Practice and the code  now  states  that  "This Code  of  Practice  is  not intended  to  be  followed  in cases  of  redundancy dismissals  or  the  non- renewal  of  fixed-term contracts on their expiry".

Subject/reference

Respondent's comment

Minister's response

Paragraph 3

The  fundamental  requirement  in dealing with issues of discipline is to  behave  reasonably.  What  is reasonable will vary depending on the circumstances of the case and the size of the employer. However, employers of all sizes should be in a  position  to  observe  the  basic standards of reasonableness.

"What is reasonable includes that reasonableness  will  vary depending  on  the  circumstances of  the  case  and  the  size  of  the employer. Given Article 64(4)(a) of the principal Law which also states  the  "administrative resources"  Chamber  believes  it would  be  useful  to  include  this part  too."  (Jersey  Chamber  of Commerce)

The  Code  of  Practice  has been  amended  to  state  that "What  is  reasonable  will vary  depending  on  the circumstances  of  the  case including  the  size  and administrative  resources  of the employer".

Paragraph 4

In all but the most exceptional of cases, a failure to observe any of the  above  fundamental  principles is  likely  to  render  any  dismissal unfair. The provisions of this Code of Practice are designed to ensure that  these  fundamental  principles of  fairness  are  followed  by employers of all sizes.

"The codes are there as guidance and  surely  only  an  enquiring court  or  tribunal  can  make  the decision  to  render  the  dismissal unfair."  (Jersey  Chamber  of Commerce)

The  paragraph  has  been amended  to  clarify  as follows: "The provisions of this  Code  of  Practice  are designed to ensure that these fundamental  principles  of fairness  are  followed  by employers  of  all  sizes.  In determining any complaint, the Tribunal or a court will take this into account, along with any other information that is relevant to the case. A failure to observe any of

the  above  fundamental principles may result in the Tribunal  or  a  court deciding  that  a  dismissal was unfair."

Paragraph 7

Where the employer believes that disciplinary  action  such  as  a written warning or even dismissal is appropriate, then it is important that a formal disciplinary process is  followed  to  ensure  that  the matter is dealt with fairly.

"This  wording  seems  to contradict  clause 17.  If  an employer  has  decided  that  a written warning or even dismissal is  appropriate,  how  can they  be going in with an open mind? We would  suggest  that  "if  dealing with  matters  informally  has  not worked then the matter should be progressed to a formal process." " (CIPD Jersey Group)

"The  way  this  is  worded contradicts  paragraph 17  and indeed  the  whole  open-minded fairness  argument."  (Jersey Chamber of Commerce)

This  paragraph  was  not intended  to  pre-empt  the outcome  of  a  disciplinary hearing, but to indicate to an employer  when  a  matter might be formal rather than informal.  The  code  is amended  to  clarify  that, "Where  an  employer considers  there  to  be  a possibility  that  disciplinary action  might  be  taken  in any particular case (e.g. a written  warning  or dismissal),  it  is  important that  a  formal  disciplinary process is followed to ensure that the matter is dealt with fairly."

Subject/reference

Respondent's comment

Minister's response

Paragraph 9

Formal disciplinary action should not be taken against an employee without  a  fair  investigation  first taking place.

"This  talks  about  a  fair investigation.  However,  existing case law all talk about reasonable not  fair.  "Burchell"  is  probably the most famous unfair dismissal case.  It  states  that  the  test  of whether  a  dismissal  for misconduct is fair is not whether the  employee  was  guilty,  but whether  the  employer  genuinely believed  that  they  were,  had reasonable grounds for that belief and  had  arrived  at  it  after  a reasonable  investigation  [Our emphasis]."  (Jersey  Chamber  of Commerce)

Paragraph 12 is amended to provide  that  "A  fair investigation  should  be reasonable  given  the circumstances  and sufficiently  thorough, particularly  when  key  facts are in dispute."

Paragraph 10

In a fair investigation the employer will  attempt  to  collect  all  the relevant  information  about  the alleged  misconduct.  This  may involve  gathering  appropriate documentation  or  talking  to individuals  within  the  business who are in a position to know what happened, as well as the employee who the allegation(s) is against.

"The employee must be asked – it cannot  be  optional."  ( Deputy R.G. Le Hérissier of St. Saviour )

The  paragraph  is  amended so that "A fair investigation will require the collection of evidence  about  the  alleged misconduct  which  might include  appropriate documentation  and  the holding  of  investigatory meetings  with  relevant individuals  within  the business. Where reasonably practicable, this will require an  investigatory  meeting with  the  employee  who  is the  subject  of  the allegation."

Paragraph 12

A  fair  investigation  should  be sufficiently  thorough,  particularly when key facts are in dispute. A failure to pursue a plausible line of inquiry or speak to witnesses who are  likely  to  have  relevant evidence will often be sufficient to render  any  subsequent  dismissal unfair.

"We  would  like  the  following wording  to  be  included  as  an additional  point:  "An investigation  needs  to  be reasonable  in  all  the circumstances"."  (CIPD  Jersey Group)

"This  talks  about  a  fair investigation.  However,  existing case law all talk about reasonable not  fair.  (Jersey  Chamber  of Commerce)

Paragraph 12 is amended to provide  that  "A  fair investigation  should  be reasonable  given  the circumstances  and sufficiently  thorough, particularly  when  key  facts are in dispute."

Subject/reference

Respondent's comment

Minister's response

Paragraph 13

When  the  investigation  has  been completed, the employer needs to decide whether there is sufficient evidence  to  hold  a  disciplinary hearing.

"We  believe  this  should  be expanded  to  say  that  the investigating  officer  needs  to decide if there is a case for the employee to answer and on what grounds." (CIPD Jersey Group)

Paragraphs 13  and  14  have been amended to address the comments  on  these  two paragraphs.  In  addition, paragraph 9 notes that more detail about the investigation process is provided in JACS guidance,  rather  than  the Code of Practice.

Paragraph 14

Where a hearing is to be held, the employee  should  be  given adequate notice to enable him or her  to  prepare  and  find  a representative. The law governing the  right  to  a  representative  is explained in the JACS guide to the right  to  be  represented.  In straightforward  cases,  notice  of one  or  two  days  may  well  be appropriate.  However,  the  more complicated  the  allegations,  and the more detailed the evidence, the longer  an  employee  will  need  to get ready for the hearing.

"Notice of a disciplinary hearing should  be  given  in  witting." (CIPD Jersey Group)

"Given  that  many  employers  in Jersey are small and many do not have dedicated HR professionals, Chamber  believes  that  these paragraphs  should  go  a  little further and stipulate that if there is a case to answer, the employee should be notified in writing and this  notification  should  contain sufficient  information  about  the alleged  misconduct  or  poor performance  and  its  possible consequences  to  enable  the employee to prepare. In addition, the employee should be advised of the date, time and place of the hearing."  (Jersey  Chamber  of Commerce)

Paragraphs 13 and 14 have been amended as follows:  "13.  If  it  is  decided  that there is a disciplinary case to answer and a hearing is to  be  held,  the  employee should  be  given  adequate notice  of  the  hearing  in writing, including the date, time  and  place  of  the hearing.

14.  The  notice  to  the employee  should  contain sufficient  information  about the  alleged  misconduct  or poor  performance  and  its possible  consequences,  as well  as  copies  of  all  the written  evidence  that  the employer intends to rely on. This should be given to the employee  within  sufficient time  before  the  hearing  to enable  the  employee  to answer the case. The same written  evidence  should  be provided to the person who will lead the hearing."

Paragraph 15

The hearing will usually be held in the  employer's  offices  or  some other  suitable  location.  The hearing  should  be  conducted  in private,  away  from  other employees if possible.

"Drop  "if  possible"."  ( Deputy R.G. Le Hérissier of St. Saviour )

Paragraph 15  (now paragraph 16)  has  been amended  so  that  "The hearing should be conducted in private, away from other employees".

Subject/reference

Respondent's comment

Minister's response

Paragraph 16

Prior to the hearing, the employee should  be  given  a  copy  of  the results of the investigation and an opportunity  to  examine  the evidence  that  the  employer  has gathered.

When you talk about a copy of the results what do you mean? for clarity it should state "Prior to the hearing  it  would  normally  be appropriate to provide copies of any written evidence (which may include  witness  statements)  to both  the  employee  and  the disciplinary  chair/panel."  (CIPD Jersey Group)

"By stipulating that the employee should  be  given  a  copy  of  the results  of  the  investigation, employers or indeed investigators may think they have to give an outcome  rather  than  establish fact."  (Jersey  Chamber  of Commerce)

Having  taken  into  account the comments, paragraph 16 has  been  deleted  as  this  is now dealt with in the revised paragraph 14.

The new paragraph 16 notes that  "More  information  is provided in the JACS guide to  Disciplinary Investigations.

Paragraph 21

The hearing must be conducted in a way which allows the employee to  explain his  or  her  side  of the story. If the employer asks further questions of the employee during the hearing, these questions should genuinely be aimed at discovering the employee's  version  of  events rather than simply catching him or her out.

"In order to create balance and a level  playing  field  these provisions  should  also  explicitly apply  to  any  questioning  and cross-examination  of  managers and  witnesses  by  the  employee and  their  representative." (Anonymous  Human  Resources Professional, public sector)

Paragraph 21  has  been amended to:

"The  hearing  must  be conducted  in  a  way  which allows  the  employee  to answer  the  case.  If questions  are  asked  of anyone  present  during  the hearing,  the  questions should genuinely be aimed at discovering the facts".

Paragraph 23

The  employer  should  make  a written  note  or  minute  of  the hearing which should be agreed by all parties who were present at the hearing.

"I have known it to be impossible to  secure  "agreement"  to  such notes/minutes – it is more reliable to  place  an  obligation  on  the Chair of the panel to ensure that as reasonable a record as possible is  made –  "agreement"  is unrealistic  I  am  afraid." (Anonymous  Human  Resources Professional, public sector)

The following sentence has been added to paragraph 23: "If  agreement  cannot  be reached on the content of the note  or  minute,  then  both versions  of  the  account should be placed on file."

Paragraph 25

Before  deciding  what  action  to take, the employer should consider all the surrounding circumstances, including  whether  there  are  any particular  circumstances  or  other facts  that  should  be  taken  into account  which  may  make  the conduct less serious.

"I am very surprised at losing the reference  to  "mitigating circumstances" – there are many classic cases in the body of UK and  EEC  law  where  these  are vital  and  compelling." (Anonymous  Human  Resources Professional, public sector)

This  was  removed  to simplify the language of the Code  of  Practice  (Plain English).  The  term mitigating  circumstances' was  thought  to  be  overly technical and it is considered that  the  same  intention  is expressed  more  simply  as revised. No change.

Subject/reference

Respondent's comment

Minister's response

Paragraph 28

Disciplinary  action  will  normally take  the  form  of  a  warning  or  a decision  to  dismiss.  Employers should  be  aware  that  sanctions such  as  demotion,  suspension without pay or a financial penalty may  be  offered  instead  of dismissal.

"To be included within a contract has been deleted, are you saying that  it  does  not  need  to  be included  in  contractual  terms? The  above  words  have  been replaced  by  "may  be  offered instead  of  dismissal"  firstly, Chamber  believes  that  sanctions given to an employee should be of  the  employer's  choice –  not offered – as you could then be left with  a  situation  of  non- acceptance.  This  new  wording could  also  result  in  more dismissals  occurring."  (Jersey Chamber of Commerce)

"You  have  removed  the clarification  for  employers  that this needs to be in their contracts to be able to demote, etc. – is this no longer the case?" (CIPD Jersey Group)

"In  my  view,  it  is  important  to emphasise  that  alternative sanctions  such  as  demotion  or suspension without pay may only be  imposed  provided  there  is contractual  authority  to  do  so – otherwise such action may be in breach  of  contract  (unless  the employee accepts such a sanction being  imposed).  For  example, demoting  an  employee  without sufficient reason may constitute a breach  of  mutual  trust  and confidence, but a demotion is in any event likely to be a breach of the express terms of the contract, unless it is specifically permitted in  the  contract  or  the  employee gives their consent to it (Hilton v Shiner  Ltd.  Builders  Merchants [2001]  IRLR  727).  The  final sentence  of  para. 28  could therefore  read:  "Employers  may decide to impose other sanctions, such as demotion or a reduction in salary where contracts permit such  sanctions.  If  the  contract does  not  permit  demotion  or

The  relevant  sentence  has been replaced with "Unless specifically provided for in a contract  of  employment, sanctions, such as demotion, a  reduction  in  salary  or  a loss  of  seniority  should  be agreed  with  the  employee, otherwise such action might amount  to  a  breach  of contract which could result in a claim to the Tribunal or a court".

Subject/reference

Respondent's comment

Minister's response

salary  reduction,  the  employer may  be  in  breach  of  contract unless the employee agrees to the sanction being imposed." " (Huw Thomas, Carey Olsen)

"The  statements  here  are  most welcome – I can however imagine circumstances where a demotion or downgrading  may be defined as a dismissal from post "A" and re-engagement into post "B" and therefore deemed to be a matter for the JET to decide. This could create as much work for JET as it avoids."  (Anonymous  Human Resources  Professional,  public sector)

Paragraph 32

Once that time period has expired, then  the  warning  should  be disregarded  in  any  future disciplinary  proceedings  and removed  from  the  employee's personal file.

"Whilst  we  would  obviously never treat an expired warning as live',  we  would  not  advocate removing  them  from  personnel files  in  case  a  pattern  of behaviour could be demonstrated in  the  future  and  influence  a disciplinary  outcome  as  an additional  (but  not  determining factor)  as  per  the  UK Employment  Tribunal  case Airbus UK Ltd v Webb (2008)." (Anonymous  employer,  private sector)

"It  is  impractical  to  request employers to remove disciplinary notes,  letters,  etc.  from  a personnel file once the warning is no  longer  in  play.  For  various reasons, documents of this nature do need to be held on file (but not referred  too),  especially  if  the employee brings a claim later, for example  personal  injury. Removing it would mean that the employer  would  not  have  the paperwork  to  defend  such  a claim." (CIPD Jersey Group)

"A  warning  should  not  be removed from the file even when expired. There are other laws and regulations  that  come  into  play

The  words  "and  removed from  the  employee's personal  file"  are  removed from paragraph 32.

Subject/reference

Respondent's comment

Minister's response

within  the  employment  context e.g. H&S duty of care and should an employer give a warning about wearing  personal  protective equipment  then  that  warning should remain on file in case of a defence for any potential personal injury  claims  which  might  only arrive at the employers desk after 3 years.  This  is  paramount." (Jersey Chamber of Commerce)

Paragraph 38

However,  even  in  cases of  gross misconduct,  the  employer  should still  follow  a  fair  procedure. Indeed, the fact that the employee is  accused  of  gross  misconduct makes it even more important that the  principles  outlined  in paragraph 3  of  this  Code  of Practice are adhered to.

"This paragraph could emphasise more  explicitly  that  the commission  of  an  act  of  gross misconduct  will  not  necessarily make  a  dismissal  fair –  the employer  must  follow  a  fair procedure,  including  considering any  mitigating  factors  advanced by the employee or known to the employer,  such  as  any explanations  for  the  employee's actions,  the  employee's  long service,  the  consequences  of dismissal  and  any  previously unblemished record. (Brito-Babapulle v Ealing Hospital NHS Trust UKEAT/0358/12.)"

(Huw Thomas, Carey Olsen)

Paragraph 38 is amended to "However, even in cases of gross  misconduct,  the employer should still follow a fair procedure because an act  of  gross  misconduct does not necessarily make a dismissal fair. The fact that the  employee  is  accused  of gross  misconduct  makes  it even more important that the principles  outlined  in paragraph 3 of this Code of Practice are adhered to."

"I would make an exception if the employee admits "guilt" after due reflection. Obviously this must be documented."  ( Deputy R.G. Le Hérissier of St. Saviour )

Such  an  exception  could create  problems,  including the  potential  for  coercion. No change.

Paragraphs 44 and 45

Where  the  size  of  the  employer permits this, the appeal should be conducted by a more senior level of manager than presided over the disciplinary hearing and who has not previously been involved in the case.

In smaller employers this will not be possible, but an appeal should still  be  offered  so  that  the employer  has  a  chance  to reconsider the action that has been taken  and  listen  to  any  fresh

"To ensure a fresh review, could an employer in a small company, with  the  employee's  agreement, bring in a third party such as a senior manager from elsewhere?" ( Deputy  R.G.  Le Hérissier  of St. Saviour )

"A more senior level of manager may not always be practical, for example, would a director be able to  chair  the  disciplinary  hearing and another director not be able to chair the appeal?" (CIPD Jersey Group)

Paragraphs  44  and  45  are amended  to  reflect  the comments and to clarify that this may also be an issue for reasons other than the size of the business –

"44.  The  appeal  should  be conducted by a more senior level  of  manager  than presided  over  the disciplinary  hearing,  if possible, or at least someone who has not previously been involved in the case."

Subject/reference

Respondent's comment

Minister's response

arguments that may be presented.

"Appeals may not always be held by a more senior person, indeed in  a  case  where  there  are  two directors, one could attend to the hearing  whilst  the  other  to  the appeal.  Rather  than  say  "senior person" you could say "someone not  previously  involved,"  again this would need to be subject to the  size  and  resources  of  the employer."  (Jersey  Chamber  of Commerce)

Paragraph 46

An appeal should essentially abide by the same principles of fairness as  a  disciplinary  hearing – including the right of the employee to be represented. It may amount to a complete rehearing of the case but it is also acceptable to focus on particular grounds of appeal raised by the employee.

"We would recommend that the appeal hearing is adjourned prior to  an  outcome  being  given, therefore  we  would  like  the follow  clause  added  to  both sections  of  appeal.  "Once  the appeal has been heard, the person conducting  the  appeal  should adjourn  the  hearing  to  consider the information before making a decision." " (CIPD Jersey Group)

Paragraphs 45 (and 60) are amended:

"45.  This  may  not  be possible,  but  an  appeal should still be offered so that the employer (or the person nominated by the employer) has a chance to reconsider the  action  that  has  been taken and listen to any fresh arguments  that  may  be presented.  Once the appeal has been heard, the person conducting  the  appeal should adjourn the hearing to consider the information before making a decision."

"This states that an appeal hearing may involve a complete rehearing of the case, Chamber would like the  following  wording  added "depending upon the grounds of the  appeal".  It  should  also  be stated here that an adjournment is required  before  any  decision  on the  appeal  is  given."  (Jersey Chamber of Commerce)

Paragraph 46 is amended to: "It  may  amount  to  a complete  rehearing  of  the case, if appropriate..."

Paragraph 47

A grievance is a complaint raised by an employee about the way in which he or she is being treated by the  employer.  A  reasonable employer will seek to deal fairly with  grievances  raised  by  an employee.

"A grievance can be raised by an employee due to the treatment of another  employee –  it  does  not always  have  to  the  be  the employer!" (CIPD Jersey Group)

"Grievances  are  not  only  raised by  employees  against  their employer,  they  are  also  raised against other employees." (Jersey Chamber of Commerce)

Paragraph 47 is amended to "Grievances  are  concerns, problems or complaints that employees  raise  with  their employers."

Paragraph 2  has  also  been amended  to  state  that "Part 2  of  the  Code  of Practice  applies  in grievance  situations  which

Subject/reference

Respondent's comment

Minister's response

arise where employees raise concerns,  problems  or complaints  with  their employer".

Paragraph 50

On  receiving  the  grievance  the employer  should  organise  a hearing  with  the  employee  to discuss his or her concerns. This should be arranged as quickly as possible  and  take  place  at  a reasonable time and place.

"My recent experience in the UK suggests that it is more and more common  to  avoid  the  use  of "hearings"  as  the  label  in grievance  processes  so  it  seems retro to replace the more neutral "meetings" with the more formal/ adversarial: "hearings" as appears to be the case in this document. It seems  a  backward  step." (Anonymous  Human  Resources Professional, public sector)

The  term  hearing'  was already  used  throughout most  of  this  code. References  to  a  meeting' were removed to clarify that the  code  relates  to  formal disciplinary  and  grievance hearings,  not  informal meetings. Formal' does not necessarily  mean adversarial'.  Whilst employers may be using the term  hearings'  less frequently  in  practice,  the ACAS code uses both terms without defining a difference between the two, which may be  confusing.  The statutory right  to  representation  only arises  in  relation  to  a disciplinary/grievance hearing'. To call a grievance hearing  a  meeting  may inadvertently imply that it is different  or  of  less importance. No change.

Paragraph 54

Ideally  the  investigation  will  be carried out by a manager who will not  be  conducting  the  grievance hearing  itself,  but  this  is  less important  in  the  case  of  a grievance  hearing  than  it  is  in relation to a disciplinary matter. In smaller  employers  especially,  the investigation will often be carried out by the same manager who will eventually conduct the hearing.

"We  do  not  see  the  need  for  a separate investigation officer in a grievance  case.  A  disciplinary needs to have three independent decision-makers  to  ensure  the requirements of natural justice are met  when  a  dismissal  or  other sanction is contemplated In a grievance, the matter is instigated by  the  employee,  not management. The purpose of the process is simply to look at the facts presented by the employee and make sufficient investigations to  decide  whether  or  not  to uphold  their  complaint.  We believe one independent manager is sufficient to gather, review and decide on the facts. If there has been any bias on the part of the

As  far  as  possible,  this should  be  undertaken  by different  people.  The  code already  accepts  that  the requirements  may  be different  in  the  case  of  a grievance  hearing  and particularly  for  smaller employers. The paragraph is amended to "If possible the investigation will be carried out by a manager who will not  be  conducting  the grievance hearing itself".

Subject/reference

Respondent's comment

Minister's response

hearing  manager,  this  can  be rectified at appeal." (Anonymous employer, private sector)

Paragraphs 56 and 57

If  the  grievance  is  upheld,  the employer will need to decide what action  to  take.  This  can  be  as simple  as  offering  an  apology  to the  employee  or  it  may  involve reversing a decision or agreeing to changes in working practices.

If  the  grievance  is  rejected,  this should be clearly explained to the employee along with the basis for the  decision.  While  this  may  be done  orally,  it  should  also  be confirmed  in  writing.  The employee should also be informed that  he  or  she  has  the  right  to appeal.

"Appeals  should  be  available against  the  first  decision  of  a grievance  hearing  even  if  the grievance  is  upheld.  Our suggestion would be to include a new  paragraph 58  which  deals with  appeals  and  take  the sentence  at  the  end  of  57. Possible  wording  "Where  an employee  feels  their  grievance has  not  been  satisfactorily resolved  they  should  have  the right  of  appeal"."  (Jersey Chamber of Commerce)

Paragraphs 58 and 59 have been replaced, as follows:

"58. The employee should be informed  of  the  right  to appeal  if  he  or  she  is  not content with the decision.

The right to appeal

59.  An  employee  who  feels that their grievance has not been  satisfactorily  resolved should  advise  the  employer in writing of the grounds for their  appeal.  An  appeal should  essentially  abide  by the  same  principles  of fairness  as  a  grievance hearing – including the right of  the  employee  to  be represented."

Paragraph 60

The  manager  conducting  the appeal  should  consider  carefully the points made by the employee before reaching a decision.

We  would  recommend  that  the appeal hearing is adjourned prior to  an  outcome  being  given, therefore  we  would  like  the follow  clause  added  to  both sections  of  appeal  "Once  the appeal has been heard, the person conducting  the  appeal  should adjourn  the  hearing  to  consider the information before making a decision." (CIPD Jersey Group)

Paragraph 60 is amended as suggested:

"60. The person conducting the  appeal  should  consider carefully the points made by the  employee  and  should adjourn  the  hearing  to consider  the  information before reaching a decision."

Paragraph 62

Once  a  grievance  has  been concluded, the employer may want to  give  consideration  to  what actions  are  needed  to  improve relationships in the workplace.

"I  suggest  that  this  should explicitly refer to and commit the employee  too."  (Anonymous Human  Resources  Professional, public sector)

Paragraph 62 is amended to "Once a grievance has been concluded,  the  employer may  want  to  give consideration  to  what actions  could  be  taken  by the  employer  and/or  the employees  to  improve relationships  in  the workplace."

Subject/reference

Respondent's comment

Minister's response

Other comments on the revised Code of Practice

"Throughout  the  codes  it  talks about  employers  behaving reasonably  and  fairly  and  we believe that employees should be reminded  to  act  the  same  when going  through  any  process. Issues  such  as  delays, postponements,  stress-related concerns, no-shows and, the most common, providing sick notes so the  process  stalls  for  an  age  is something  that  many  employers face on a monthly basis." (Jersey Chamber of Commerce)

The introduction to the code has been revised to include reasonable  employee behaviour:  "In  preparing this  Code  of  Practice,  the Minister  has  had  careful regard  to  the  need  not  to burden  employers  with excessive bureaucracy. It is hoped  that  this  Code  of Practice  can  contribute  to the success of businesses in Jersey by setting out a clear framework  of  reasonable and fair treatment. This will help  employers  deal effectively  with  issues  that arise  in  the  workplace  and help employees to raise their concerns  in  a  constructive and  proportionate  manner and  to  act  reasonably throughout the process."

"The  grievance  procedure  is  for individual  issues  and  should  be not  used  for  collective  issues, collective  grievances  should  be dealt with in accordance with the employers'  collective  dispute procedures." (Jersey Chamber of Commerce)

A  new  paragraph  is  added similar  to  that  included  in the ACAS Code of Practice: "Collective grievances

63.  This  Code  of  Practice does not apply to grievances raised  on  behalf  of  two  or more  employees  by  a representative  of  a recognised  trade  union where there is a trade union recognition  agreement  in place  with  the  employer. These grievances should be dealt  with  in  accordance with  the  employer's collective grievance process or  the  recognition agreement, as appropriate."

"It  should  be  a  disciplinary offence to fail to comply with the Code  of  Practice.  So  that  the codes are properly enforceable. If staff ignore the codes under the law  there  should  be  sanctions, otherwise  what  is  the  point?" (Anonymous)

This is a Code of Practice, not  law,  and  so  we  cannot create an offence. The code must be taken into account by  the  Tribunal  or  a  court where  it  is  relevant  to  any proceedings. No change.

Subject/reference

Respondent's comment

Minister's response

"There  should  be  the  right  of appeal  by  a  complainant, e.g. third party complaint against a staff member, dealt with, etc., then third party (other member of staff  or  member  of  the  public) needs  to  be  notified  and  have right of attendance at hearing, and if dissatisfied with any part of the process  the  right  to  an independent  review  of  the proceedings  and  process  and outcome." (Anonymous)

Such a provision is unlikely to  be  appropriate  for  this Code  of  Practice.  The intention  of  revising  the 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. No change.

General  comments  on disciplinary  and  grievance procedures

"There should also be some form of  oversight  to  the  process  of investigating and adjudicating on complaints  against  senior members of staff. For example in the  civil  service  a  complaint against a senior member of staff would be investigated by another senior member of staff. To ensure transparency and fairness to staff member and complainant, as well as the appointed investigator, an independent set of eyes, such as from  JACS  or  a  Jurat,  or mediation-trained  Advocate  to ensure  fairness  and  impartiality, and  avoid  suggestions  and inferences  of  a  "closed  shop" sticking together." (Anonymous)

Such a provision is unlikely to  be  appropriate  for  this Code of Practice. Employers may have their own internal policies/procedures for such matters. No change.

"In  particular  the  timetables involved  for  investigation  and adjudication should be rigorously set  and  enforced.  Maybe  some corporate  central  reporting  on statistics such as:

- Complaints made

- Grievances lodged

- Punctuality and timekeeping

- - - - -

Internal or external Investigations conducted Hearings conducted Outcomes/sanctions Complainant  satisfaction with process (feedback on complaints).

It  is  unlikely  to  be appropriate  to  include rigorous  timetables  given that  the  procedure  in  the Code of Practice is intended to be appropriate for all sizes of business.

A requirement for an annual review  is  unlikely  to  be appropriate  for  a  Code  of Practice. The intention is to set out a general procedure so that the Code of Practice does  not  have  to  be repeatedly  reviewed  and made  by  Order.  Employers are  likely  to  value

Subject/reference

Respondent's comment

Minister's response

There  then  needs  an  annual review by senior HR professional on whether the revised procedures are working maybe in conjunction with  Industrial  tribunal,  JACS, and  local  HR  private  sector professional  to  ensure  best practice." (Anonymous)

consistency  and  familiarity with  straightforward processes, rather than having to  frequently  review  their own  procedures.  Any difficulties or concerns that arise  in  relation  to  the revised Code of Practice are likely  to  come  to  the attention  of  JACS.  No change.

"The  chapman  report  defined bullying and harassment and this needs to be weaved into the codes of practice so that all employers and  HR  departments  are  fully sighted on the definition, as well as the impact on members of staff so affected." (Anonymous)

Such  a  provision  would  be too  specific  and  not appropriate  for  this  code. JACS  website  includes guidance  on  bullying  and harassment,  including  a model policy and procedure, an  investigation  flowchart and  guides  for  employers and employees. No change.

"First and foremost l must remind you  that  you  are  able  to correspond  with  me  and  others because it is entirely the private sector that pays your wages, even the taxes you pay comes from the private  sector.  I  remind  you  of this because in many instances l know  that  this  is  forgotten  by public  service  sector  which includes  civil  servants.  An example of this is that the civil service  thinks  it  is  alright  that pension benefits exceed those that have  to  pay  for  them.  Now  as long as you pay the private sector the same and put up everyone's taxes,  I  would  feel  good  about civil servants' demands.

Back  to  this  question  of grievances.

Freedom and relationships are the key.  In  small  companies  or businesses there is a relationship between employer and people that work for small businesses. If an employer sacks an employee it is enough to say that they do not see

The intention of revising the 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. No change.

Subject/reference

Respondent's comment

Minister's response

eye to eye. The employee is free to leave his or her employment at any  time.  The  employer  must have that freedom. If you choose to legislate there will always be built in complications in writing legislation, hence this is why you are  amending.  You  cannot legislate  for  relationships however hard you try. So what I suggest  is  that  this  legislation should  only  apply  to  businesses that  employ  over  a  certain number,  a  dozen  sounds  about right.

Freedom is the basis of evolution. legislation is forcing people to do something they may not want to do  and  in  this  you  allow  those people  not  to  learn  in  a  very personal  way  from  their mistakes." (Gino Risoli)

"I realise what the intention of the department is with initiatives like this.  In  effect  what  you  are attempting  to  do  is  pass  on  the responsibility entrusted to you to provide  assistance  to  people  in need to employers by preventing them from dismissing employees who  continuously  break  the contracts  they  have  entered  into of  their  own  free  will.  By preventing  employees  from leaving a position of employment (except  to  go  into  other employment)  without  a  good cause',  a  good  cause  being  one which  will  result  in  an  award from  the  ridiculously  biased employment  tribunal.  This  is going  to  be  done  without  any compensating  decrease  in  the amount of tax extorted from the people (or social security as one form  of  tax  is  sometimes euphemistically referred to).

The intention of revising the 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. No change.

Subject/reference

Respondent's comment

Minister's response

Such  measures  always accompany  the  decline  of bureaucracies  from  the  Roman Empire in the 5th Century to the present  day.  The  attempt  to  set things  in  stone,  merely  hastens the decline. The one consolation is  that  those  working  for  the States today will not get to enjoy their pensions as there simply will be no money left, whilst those of us  who  are  not  dependant  on someone  else  for  our  own financial  security  will  not  be affected.

The Public of Jersey would be far better  served  by  changing  the manner and method of awarding such  benefits.  There  is  the subsidy paid by the department to Rentiers  which  does  little  but over-inflate  Jersey  property prices.  There  are  the  pensions which are paid to the profligate and  wasteful  older  generation who  would  prefer  to  see  their children and grandchildren starve rather than use their own savings to  support  themselves  in  their own old age.

I realise that the older generation are more likely to vote and elect the  Minister,  however  as  such concerns  form  the  basis  of  the decisions  made  I  consider  the Minister  to  be  in  breach  of  the trust the public has placed in him. He should serve without fear or favour and without regard to the personal  consequences  for undertaking the responsibilities of trusteeship in good faith.

The final consideration is whether this  law  is  in  line  with  the demands  of  Article 8  of  the European Convention on Human Rights. It interferes with the God- given free will of individuals to enter  into  contracts  with  each

Subject/reference

Respondent's comment

Minister's response

other  in  whatever  form  they choose, is that even Lawful? Is it truly  necessary  in  a  democratic society to treat all employees like children?

This I am afraid is tyranny and oppression.  As  it  says  in  the preamble  to  the  United  Nations Declaration  of  Human  Rights "Man is compelled to rebellion against tyranny and oppression". The rebellion will take the form of potential employers simply not employing  people  in  Jersey  but outsourcing  to  self-employed people and to other jurisdictions.

Congratulations on another waste of  taxpayers'  money  which  will damage  the  economy  of  Jersey further  still.  At  least  it  ensures that  the  revolution  will  come sooner rather than later, so it's not all bad." (Darius Pearce)