Reference to the Employment Forum for consultation
The right to representation in disciplinary and grievance hearings
When the Employment (Jersey) Law 2003 (‘the Employment Law’) was developed, it was intended that reasonable procedures for disciplinary and grievance procedures would be set out in a code of practice rather than in primary legislation. The intention was to minimise litigation and provide a flexible procedure that would be suitable for any size of employer. Details of fair process were provided as a ‘Disciplinary and Grievance Procedures’ Code of Practice (‘the Code’) which was made under the Jersey Advisory and Conciliation (Jersey) Law 2003.
Deputy Southern however proposed to the States in 2006 that the Employment Law should be amended to entitle an employee to be represented by any person of their choice. To achieve an appropriately limited right, the former Social Security Minister reached an agreement with the Deputy on a limited right. The time constraints to achieve agreement meant that no consultation could be undertaken on the proposed amendment.
The States approved the amendment to the Employment Law in 2007 (inserting a new Part 7A) to give employees a right to representation, akin to the UK and Isle of Man. The right is limited in respect of the types of hearing that attract the right (formal disciplinary hearings that could result in some formal action being taken against the employee) and the representatives that may be selected –
- A fellow employee who is employed by the same employer, or
2. An employed trade union official of a union that is registered under the Employment Relations (Jersey) Law, or
3. A trade union official who is not employed by a union, but whom the union has reasonably certified in writing as having experience of, or having received training in, acting as an employee’s representative at disciplinary or grievance hearings.
The Code explains that an employee may choose an official from any trade union, regardless of whether the union is recognised by the employer, but where a trade union is recognised in a workplace, it is good practice for the employee to ask an official from that union to represent them. An employee does not have to be a member of a trade union in order to request representation by that union.
The Code also states that “some employers may extend the right further via employees’ contracts or company procedures, giving employees a contractual right to be represented by someone who may or may not be an employee of the same organisation, e.g. a partner, spouse, friend or legal representative. Whatever decision is taken by the employer in this respect, it is advised that the procedure should specifically address this issue to prevent disagreement and/or confusion from arising.”
Deputy Hill lodged a Proposition on 7 June 2011 which is due for States debate on 13 September, (P.112/2011 – Disciplinary and Grievance Hearings: Right to a friend). It asks Members to agree that the Employment Law be amended to provide that an employee is entitled to be represented by any person of their choice in a disciplinary or grievance hearing on the grounds that “it is possible that the Employment (Jersey) Law 2003 may no longer be Convention-compliant. This follows recent cases which have held that.”
Advice from the Law Officers’ Department confirms that the Employment Law remains human rights compliant and need not be amended in light of the court judgment referred to in the Proposition. English law has not been amended in consequence of the court judgment because it is not necessary for the purpose of human rights compliance. Further to this, the Court of Appeal decision referred in the Deputy’s accompanying report - the case of Governors of X School v G - was reversed on 29 June 2011 by the Supreme Court.
A number of interested parties provided comments to myself and to the Deputy in opposition to the Proposition which, to summarise, is on the following grounds;
- The States debate must be postponed to allow stakeholders to be consulted; an amendment to the Employment Law would be a significant departure from other jurisdictions.
- There are potentially significant financial and resource implications for the private sector and the public sector if legal representation is a statutory entitlement.
- Appropriate representatives for disciplinary and grievance hearings have knowledge of the workplace and an interest in maintaining good employment relations. Other representatives, such as family members, might personalise the issue and are inappropriate.
I attended a meeting on 26 July 2011 to discuss the Proposition with Deputy Hill, the States Employment Board and a small number of interested parties. It was agreed during the meeting that:
1) A more acceptable solution than legislative provision might be to amend the Code so that it outlines circumstances in which an employer should consider permitting different types of representatives, and
2) The Employment Forum should be directed to consult on such an amendment.
I therefore request that the Employment Forum consults on an amendment to the Code, to include what circumstances employers should be advised to consider permitting employees to be represented in formal disciplinary and grievance hearings by other types of representatives, including in any of the following circumstances;
- Where the employee is under age 18.
- Where the employee requires a specific types of support, e.g. on grounds of language or disability, e.g. a mental health advocate or translator.
- Where the employee is a sole employee of the business.
- Where an employee may be prevented from following their profession as a result of any disciplinary action taken, where employment is subject to approval by an authority or body and there is the potential for the authority to be influenced by the outcome of those proceedings.
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