JACS Guide to Revised Disciplinary and Grievance Code of Practice
JACS Guide to the revised Disciplinary and Grievance Code of Practice (2 November 2007)
Right to be represented at disciplinary and grievance hearings
The right is provided in a new PART 7A of the Employment (Jersey) Law 2003 – "Disciplinary and Grievance Hearings"
A Code of Practice made under the Jersey Advisory and Conciliation (Jersey) Law 2003 has been revised by the Social Security Minister to reflect an amendment to the Employment (Jersey) Law 2003
The Employment (Amendment No. 3) (Jersey) Law 2007 gives employees the right to be represented by a fellow worker or trade union official in certain formal disciplinary and grievance hearings and came into force on Friday November 2nd 2007.
About the right
An employee is entitled to be represented at a disciplinary or grievance hearing by any one of the following;
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a fellow employee who is employed by the same employer
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an employed trade union official (who may or may not be an official of a union that is recognised by the employer, but the union must be registered under the Employment Relations Law),
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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 companion at disciplinary or grievance hearings.
A ’disciplinary hearing’ is one that could result in a formal written warning or some other formal disciplinary action being taken against the employee (or the confirmation of such a warning or action).
A ’grievance hearing’ is one concerning an employee’s complaint about the performance of a duty owed to them by their employer (i.e. a statutory, contractual or common law duty).
If the representative cannot attend at the time proposed by the employer, the employee may propose a reasonable alternative time for the hearing within 5 working days of that proposed by the employer. Where the representative is a fellow employee, he is entitled to a reasonable amount of paid time off to prepare and attend the hearing.
A representative must be allowed:
- to put the employee’s case;
- to sum up that case;
- to respond on the employee’s behalf to any view expressed at the hearing; and
- to confer with the employee during the hearing,
Representatives are not allowed:
- to answer questions on behalf of the employee;
- to address the hearing against the employee’s wishes;
- to obstruct the employer or any other person from explaining or contributing to their case
Enforcement
(The new rights provided in Part 7A are enforced via a new Article 78B, Paragraphs (1) to (3) of the Employment Law and the existing unfair dismissal provisions of the Employment Law.
An employee has the right not to be subjected to any detriment for exercising or seeking to exercise the right to be represented, or to act as representative to another employee.
If the employer fails to allow (or threatens not to allow) an employee or their representative to act in accordance with the right to representation, the employee may make a complaint to the Employment Tribunal within 8 weeks of the failure or threat
(which may be extended in certain circumstances at the discretion of the Tribunal).
Where the claim is successful, the Tribunal may award compensation of up to 4 weeks’ pay and quash any action taken by the employer in respect of the disciplinary or grievance matter (other than dismissal).
An employee who is dismissed for representing (or proposing to represent) another employee, and an employee who is dismissed for asserting the right to be represented in a disciplinary or grievance hearing, are automatically protected against unfair dismissal. If the employee is subsequently dismissed, having been refused this statutory right, then an award of automatic unfair dismissal award could also be made.
Confidentiality
At the commencement of any hearing in which an employee is represented, the employer should make it clear that the matters discussed are subject to the Data Protection Law and that statement should be recorded in the written record of the hearing. It is recommended that the employer should also ask the employee and his or her representative to sign a non-disclosure statement.
December 3rd 2007