Accompanying report to the Employment Tribunal (Amendment No. 2) (Jersey) Regulations 201-
Background
The Employment Tribunal (Jersey) Regulations 2007 were drafted in accordance with best practice and with tenure for other similar bodies at the time of their approval and were intentionally restrictive. However, certain provisions of the Regulations would have the unintended effect of preventing appointments that would be permitted in accordance with appropriate practice as specified by the Jersey Appointments Commission (JAC) ‘Code of Practice for Appointments to Autonomous and Quasi-Autonomous Public Bodies and Tribunals’.
The views of the Chairman of the JAC have been taken during the preparation of the proposed amendment.
Proposed amendments
The Regulations would be amended as follows:
- The Employment Tribunal (Jersey) Regulations 2007 currently restrict Employment Tribunal appointments to two terms (for a maximum of five years per term) with no eligibility for an extension or re-appointment. To reflect best practice, the amendment would allow the Minister to further appoint members, subject to the process being overseen and conducted in accordance with JAC guidance (see Appendix 1). The code of practice specifies that the terms of office for members of upper tier bodies should not exceed ten years in total and it sets out the circumstances in which a further (second) re-appointment may be considered, such as if a member has served less than a total of 10 years in their first two terms. Further appointments would usually be subject to open recruitment, overseen by the JAC.
- The Minister would be permitted to appoint one or more legally qualified ‘Acting Chairmen’ who could be appointed on short notice where both the Chairman and the Deputy Chairman are unable to perform their functions, such as where both are unavailable or conflicted. This is a significant risk in a small jurisdiction. The appointment of an Acting Chairman would occur in consultation with the JAC. The code of practice recognises that emergency appointments are sometimes necessary, but this would not be achievable under the current Regulations as only a Chairman and a Deputy Chairman may be appointed, plus a full JAC recruitment process would be required prior to any appointment.
- A draft amendment to the Regulations was prepared that was intended to be progressed with the draft discrimination legislation. Accordingly the Minister wishes to apply the additional circumstances in which a member ceases to hold office.
Resource implications
There are no financial or manpower implications arising from this proposition.
APPENDIX 1
Jersey Appointments Commission (JAC) ‘Code of Practice for Appointments to Autonomous and Quasi-Autonomous Public Bodies and Tribunals’
Excerpt from 4.17 Terms and criteria for re-appointments
“(a) First re-appointments
First re-appointments (i.e., for a second term in office in the same role) may be made subject to satisfactory assessment of performance.
(b) Second re-appointments
Second re-appointments (i.e., for a third term in office in the same role) will be rare and can normally only be made if the individual has been considered alongside other applicants in open competition and has proved to be the most suitable candidate.
However, where the term of office of the member is comparatively short, i.e., not more than two years, the need to apply a competitive process can be delayed until the member has served six years.
4.18 Further, where one of the following criteria applies to the current postholder –
- She or he has particular skills or experience essential to efficient functioning of the Body; or
- She or he will provide continuity during a period of change (perhaps when a number of appointments are coming to an end simultaneously or bodies are merging); or
- Experience has clearly shown difficulty in attracting candidates with the requisite knowledge and experience;
the Commission would consider approving an extension of the person’s membership of the Body without the requirement to carry out a competitive process. An approach should be made to the Commission to approve such a way forward before any action is taken.”