CODE OF PRACTICE
Disciplinary and Grievance
Practice and Procedures
Introduction
1. Under the terms of Article 9 of the Jersey Advisory and Conciliation Law 2003, the Social Security Minister is empowered to issue or approve Codes of Practice providing practical guidance for the purpose of promoting the improvement of employment relations. This Code is intended to provide such guidance on the development and operation of disciplinary and grievance procedures.
2. The provisions of this Code are admissible in evidence and may be taken into account in determining any question arising in proceedings before the Employment Tribunal or a court. Failure to observe any provision of the Code does not, of itself, render a person liable to any proceedings, other than where the code refers to Part 7A of the Employment Law 2003 regarding the “right to representation” (see section 3).
Whilst every effort has been made to ensure that the summary of the relevant statutory provisions included in the Code is accurate, only the Employment Tribunal and the courts can interpret the law authoritatively.
Section 1 – Disciplinary procedures
Why have disciplinary rules and procedures?
3. Whilst employers are not required by statute to have disciplinary rules and procedures it is good employment relations practice so as to promote fairness and order in the treatment of individuals and in the conduct of employment relations. They also assist an organisation to operate effectively. Rules set standards of conduct at work; procedures help to ensure that the standards are adhered to and also provide a fair method of dealing with alleged failures to observe them.
4. It is important that employees know what standards of conduct are expected of them. Further, the Employment Law 2003 requires employers to provide written information for their employees in relation to any disciplinary rules and procedures that are relevant (1).
5. The importance of disciplinary rules and procedures has also been recognised in legislation, which allows for the fairness of a dismissal to be challenged before the Employment Tribunal. Although an employee’s “conduct” is recognised by that legislation (2) as a potentially valid reason for dismissal, the section further states that a dismissal must be reasonable in all the circumstances (3). This means that not only should dismissal be appropriate to the seriousness of the particular situation, but also the steps taken by the employer before deciding to dismiss ought to conform to a certain standard. Where a dismissal is found by the Tribunal to have been unfair, the employer is liable to pay compensation to the employee.
Formulating Policy
6. Managers are responsible for maintaining discipline and for ensuring that there are satisfactory disciplinary rules and procedures. However, if they are to be effective, the rules and procedures need to be accepted as reasonable both by those who are covered by them and by those who operate them. Employers should therefore aim to secure the involvement of employees when formulating new or revising existing rules and procedures. Where a trade union or staff association is recognised it would often be appropriate for its officials to participate in developing the procedures.
Rules
7. It is unlikely that any set of disciplinary rules can cover all circumstances; moreover the rules will vary according to particular circumstances such as the type of work, working conditions and size of establishment. When drawing-up rules the aim should be to specify clearly and concisely those necessary for the efficient and safe performance of work and for the maintenance of satisfactory relations within the workforce and between employees and their employer. Rules should not be so general as to be meaningless.
8. Rules should be readily available and managers should make every effort to ensure that employees know and understand them. This may be best achieved by giving every employee a written copy of the rules (4). In the case of new employees this should form part of an induction programme. Special allowance should be made for individuals whose first language is not English or who have a visual impairment or some other disability.
9. Employees should be made aware of the likely consequences of breaking rules. In particular they should be given a clear statement of the type of conduct that may warrant summary dismissal. If a rule prohibiting certain conduct has fallen into disuse through not having been the subject of recent disciplinary action, it is important that employees are given notice by their employer that the rule will again apply. This approach should be adopted even if the rule is written.
Essential features of disciplinary procedures
10. Disciplinary procedures should not be viewed primarily as a means of imposing sanctions. They should be designed to emphasise and encourage improvements in individuals’ conduct. In this way, the reasonable and consistent use of disciplinary rules and procedures will benefit employers in promoting good employee relations and in reducing the number of issues that arise for consideration.
11. Disciplinary procedures should:
(a) Be in writing.
(b) Specify to whom they apply.
(c) Not discriminate against any employee because of their sex, race, colour, language, religion, political view or any other status.
(d) Provide for matters to be dealt with quickly.
(e) Indicate the disciplinary actions which may be taken and specify the normal duration of warnings.
(f) Specify those managerial and/or supervisory levels who have authority to take the various forms of disciplinary action, ensuring that immediate superiors do not normally have the power to dismiss without reference to senior managers.
(g) Provide for employees to be informed of the complaints against them and, where possible, all relevant evidence before any hearing.
(h) Provide employees with an opportunity to state their case before a decision is reached.
(i) Clarify whether the statutory right to be represented applies to the hearing, and who may represent the employee (see section 3).
(j) Ensure that, except for gross misconduct, an employee is not dismissed for a first incident of misconduct.
(k) Ensure that disciplinary action is not taken until the case has been investigated properly, and in a manner appropriate to the circumstances.
(l) Provide for a written explanation for any penalty imposed.
(m) Include a right of appeal and specify the procedure to be followed.
The procedure in operation
12. When a disciplinary matter arises, the supervisor or manager should establish the facts promptly before recollections fade, taking into account the statements of any available witnesses, which should be recorded in writing. In serious cases consideration could be given to a brief period of suspension while the case is investigated. This suspension should be with pay unless the circumstances justify otherwise.
The employee should be advised of their rights under the procedure and their statutory right to be represented by a fellow employee or a trade union official (see section 3). Before a decision is made, the employee should be interviewed and given the opportunity to state their case. The employee should be given sufficient time to prepare their case and the written records of any witnesses’ statements should be made available to the employee (although in exceptional circumstances they may be amended, but only to maintain anonymity). If the employee challenges the statement it may clarify matters if the witness attends the interview, provided the witness is willing to do so.
13. After investigation and interview, it may be that a situation can be best dealt with informally or by counselling the employee. Counselling may help if the employee’s actions are caused, or contributed to by medical, psychological or private circumstances. In many such cases, professional support will be important. In such cases it may be inappropriate to continue with the disciplinary procedure.
14. Often supervisors will give informal oral warnings for the purpose of improving conduct after minor infringements of standards of conduct. However, where the facts of a case appear to call for disciplinary action, other than summary dismissal, the following procedure should normally be observed:
(a) In the case of minor offences the employee should be given a formal oral warning, or if the issue is more serious, a written warning setting out the nature of the offence and the likely consequences of further misconduct. In either case the employee should be advised that the warning is the first formal stage of the procedure.
(b) Further misconduct might warrant a final written warning which should contain a statement that any recurrence would lead to suspension, transfer demotion or dismissal, as the case may be.
(c) The final step might be disciplinary suspension without pay or transfer or demotion (but only if these are allowed for by an express or implied condition of the contract of employment), or dismissal, according to the nature of the misconduct. Suspension without pay should be treated with caution. It should not normally be for a prolonged period.
15. Any disciplinary sanction should be confirmed in writing to the employee and should include details of any right of appeal, how to make it and to whom, even if the employee has previously received a written procedure outlining this.
16. When deciding the disciplinary action to be taken the supervisor or manager should bear in mind the test of reasonableness in all the circumstances. This means that, after investigation and interview, the employer should be able to demonstrate if called upon to do so that there are reasonable grounds for believing that the employee has committed the act(s), which are the subject of the disciplinary proceedings. So, at the very least, the supervisor or manager should consider it more likely than not that the employee is responsible. This standard should be applied not only to decisions regarding dismissal but also to those concerning warnings or other measures. So far as is possible, account should be taken of the employee’s record and any other relevant factors -- although consistency of overall standards is important, each case must be considered on its merits, including an employee’s particular situation
17. Special attention should be given to the way in which disciplinary procedures are to operate in certain cases. For example:
(a) Employees to whom the full procedure is not immediately available. Provision may have to be made for the handling of disciplinary matters among nightshift workers, workers in isolated locations or depots or others who may pose particular problems, for example because no-one is present with the necessary authority to take disciplinary action.
(b) Trade union officials. Disciplinary action against a trade union official can lead to a serious dispute if it is seen as an attack on the union’s functions. Although normal disciplinary standards should apply to officials’ conduct as employees, where the union is recognised, no disciplinary action beyond an oral warning should be taken until the case has been discussed with a senior trade union representative or fulltime official.
(c) Criminal offences outside employment. These should not be treated as automatic reasons for dismissal. The main considerations should he whether the offence is one that makes the employee unsuitable for his or her work or in some circumstances, unacceptable to colleagues. Employees should not be dismissed solely because a charge against them is pending or because they are absent through having been remanded in custody for a short period. As such circumstance are likely to vary, appropriate advice should be taken, e.g. from JACS, before dismissing an employee in such circumstances.
Appeals
18. Grievance procedures can be used for dealing with individual disciplinary appeals. A preferred process of providing for an appeal, however, is through a specific provision in the disciplinary procedure.
Records
19. Records should be kept detailing the nature of a breach of disciplinary rules, the action taken and the reasons for it, whether an appeal was lodged, its outcome and any subsequent developments. These records should be kept confidential and retained in accordance with any relevant provisions of the Data Protection Law. The employee should be asked to sign the records to confirm that they represent an accurate and complete record of the meeting(s).
20. Except in special circumstances breaches of disciplinary rules should be disregarded after a specific period of satisfactory conduct, normally no more than twelve months. The duration of any warning should be communicated to the employee and recorded in any written warning given to the employee, particularly if that duration exceeds the normal period specified in a disciplinary procedure.
21. Rules and procedures should be reviewed periodically in the light of any developments in employment legislation or industrial relations practice to ensure their continuing relevance and effectiveness. Any amendments and additional rules imposing new obligations should be introduced and applied after reasonable notice has been given to all employees and, where appropriate, their representatives have been consulted. Changes to individual contracts should only be made with agreement, except in exceptional circumstances where advice should be sought.
Section 2 – Grievance procedures
Why have a grievance procedure?
22. In any organisation employees may have problems or concerns about their work, working environment or working relationships that they wish to raise and have addressed. A grievance procedure provides a mechanism for these to be dealt with fairly and speedily, before they develop into major problems and potentially collective disputes.
23. Whilst employers are not required by statute to have a grievance procedure it is good employment relations practice to provide employees with a reasonable and prompt opportunity to obtain redress of any grievance. Employers are statutorily required in the written statement of terms and conditions of employment to specify what grievance procedures are available to employees (1).
24. In circumstances where a grievance may apply to more than one person and where a trade union or staff association is recognised it may be appropriate for the problem to be resolved through collective agreements between the trade union(s)/staff association and the employer.
Formulating procedures
25. It is in everyone’s best interest to ensure that employees’ grievances are dealt with quickly and fairly and at the lowest level possible within the organisation at which the matter can be resolved. Management is responsible for taking the initiative in developing grievance procedures which, if they are to be fully effective, need to be acceptable to both those they cover and those who have to operate them. It is important therefore that senior management aims to secure the involvement of employees and their representatives, including trade unions where they are recognised, and all levels of management when formulating or revising grievance procedures.
Essential features of grievance procedures
26. Grievance procedures enable individuals to raise issues with management about their work, or about their employers’, clients’ or their fellow workers’ actions that affect them. It is impossible to provide a comprehensive list of all the issues that might give rise to a grievance but some of the more common include: terms and conditions of employment; health and safety; relationships at work; new working practices; organisational change and equal opportunities.
27. Procedures should be simple, set down in writing and rapid in operation. They should also provide for grievance proceedings and records to be kept confidential.
28. The procedures should recognise that employees have a statutory right to be represented at grievance hearings, either by a fellow employee or by a trade union official (see section 3).
29. In order for grievance procedures to be effective it is important that all employees are made aware of them and understand them and if necessary that supervisors, managers and employee representatives are trained in their use. Wherever possible every employee should be either given a copy of the procedures or provided with access to it (e.g. in the personnel handbook or on the company intranet site). Special allowance should be made for individuals whose first language is not English or who have a visual impairment or some other disability.
The procedure in operation
30. Most routine complaints and grievances are best resolved informally in discussion with the employee’s immediate line manager. Dealing with grievances in this way can often lead to speedy resolution of problems and can help maintain the authority of the immediate line manager who may well be able to resolve the matter directly. Both manager and employee may find it helpful to keep a note of such an informal meeting.
31. Where the grievance cannot be resolved informally it should be dealt with under the formal grievance procedure. The number of stages contained in the procedure will depend on the size of the organisation, its management structure and the resources it has available. It is for employers to decide the procedure suitable for their business, taking into account the need to develop a fair procedure. A model grievance procedure is appended to this code.
32. In most organisations it should be possible to have at least a two-stage grievance procedure. However, where there is only one stage, for instance in very small firms where there is only a single owner/manager, it is especially important that the person dealing with the grievance acts impartially.
33. In certain circumstances it may, with mutual agreement, be helpful to seek external advice and assistance during the grievance procedure. For instance where relationships have broken down an external facilitator might be able to help resolve the problem.
Special considerations
34. Although not required by law, some organisations may wish to have specific procedures for handling grievances about unfair treatment e.g. discrimination or bullying and harassment, as these subjects are often particularly sensitive. Organisations may also wish to consider whether they need a whistle-blowing procedure. This provides strong protection to employees who raise concerns about wrongdoing (including frauds, dangers and cover-ups), but again is not required by law.
35. Sometimes an employee may raise a grievance about the behaviour of a manager during the course of a disciplinary case. Where this happens and depending on the circumstances, it may be appropriate to suspend the disciplinary procedure for a short period until the grievance can be considered. Consideration might also be given to bringing in another manager to deal with the disciplinary case.
Records
36. Records should be kept detailing the nature of the grievance raised, the employer’s response, any action taken and the reasons for it. These records should be kept confidential and retained in accordance with any relevant provisions of the Data Protection Law. Copies of any meeting records should be given to the individual concerned although in certain circumstances some information may be withheld, for example to protect a witness. The employee should be asked to sign the records to confirm that they represent an accurate and complete record of the meeting(s).
37. All documents to be used in a disciplinary and grievance hearing must be fully disclosed by both parties within a specified time (e.g. within five days of the hearing).
Section 3 - Arranging for Disciplinary and Grievance Hearings
The right to be represented
38. The right to be represented is important to ensure a fair process. Part 7A of the Employment Law gives employees the right to be represented where their employer requires or requests them to attend a disciplinary or grievance hearing and the employee tells the employer that he or she wishes to be represented at the hearing.
39. The right to be represented only applies to disciplinary hearings where the hearing could result in a formal written warning or some other formal disciplinary action being taken against the employee (or the confirmation of one of the above), including appeal hearings. Informal disciplinary hearings, such as meetings to investigate an issue, do not attract the right to be represented. If it becomes clear during the course of such a meeting that disciplinary action is necessary, a formal hearing should be arranged where the employee has the right to be represented.
40. Grievance hearings also attract the right to be represented where an employer deals with an employee’s complaint about the performance of a duty (whether statutory or contractual) owed to them by their employer. For example, a grievance about a pay rise is unlikely to fall within the definition, unless the right to a pay rise is specified in the employee’s contract.
41. The Employment Law provides that an employee may be represented by one of the following people in formal disciplinary or grievance hearings:
1. A fellow employee who is employed by the same employer,
2. 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 2007),
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.
42. An employee may choose an official from any trade union, regardless of whether the union is recognised by the employer. 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. Trade unions should ensure that officials are trained in the role of representing employees.
43. An employee does not have to be a member of a trade union in order to request representation by that union. Fellow employees and union officials are not obliged to accept a request to represent an employee and should not be pressurised to do so.
44. Where there is a dispute about the chosen representative, the Employment Law provides that the Tribunal may consider whether the location of the chosen representative at the time of the request for a hearing makes the choice of that representative unreasonable (e.g. geographically remote).
45. 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.
46. The employer should try to agree a mutually convenient date for the disciplinary or grievance hearing with the employee and their representative to ensure that hearings do not have to be delayed or postponed at the last minute. The Employment Law provides that there should be flexibility in setting the time and date of the hearing, so that hearings are not allowed to drift, but that there is consideration of the reasonableness of employers’ actions and employees’ requests.
47. If a chosen representative cannot be available at the proposed hearing time, the Employment Law provides that an employee must be able to propose an alternative time, which must be within a reasonable period after the date that had been proposed by the employer, for example, within 5 working days of the day proposed by the employer. In proposing an alternative date, the employee should have regard to the availability of the relevant manager, e.g. it would not normally be reasonable to ask for a new hearing date when it was known that the manager was going to be absent on business or on leave, unless it was possible for someone else to act for the manager at the hearing. The location and timing of any alternative hearing should be convenient to both employee and employer.
48. Both the employer and employee should prepare carefully for the hearing. The Employment Law gives representatives the right to a reasonable amount of paid time off during working time to prepare and represent an employee, but only where a fellow employee is being represented (i.e. they both work for the same employer). Where a union official who is not a fellow employee is acting as a representative, time off is a matter for agreement between the union official and his or her own employer.
49. The employer should ensure that, where necessary, arrangements are made to cater for any disability the employee or their representative may have. Where English is not the employee’s first language there may also be a need for translation facilities. The employee should think carefully about what is to be said at the hearing and should discuss with their chosen representative their respective roles at the meeting.
50. Before the hearing, the employee should inform the employer of the identity of their chosen representative. Representatives have an important role to play, as set out in the Employment Law. The Law requires the employer to permit the representative to address the hearing in order to; put the employee’s case, sum up the case, respond on the employee’s behalf to any view expressed at the hearing, and confer with the employee during the hearing. The representative is not permitted to answer questions on behalf of the employee, address the hearing if the employee indicates that they do not wish them to do so, prevent the employer from explaining his or her case, or prevent any other person at the hearing from making a contribution to it.
51. Employers must be aware that the Employment Law provides that 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, would be automatically protected against unfair dismissal.
52. Where an employer has failed to allow (or threatened not to allow) an employee to be represented, the Tribunal may award up to 4 weeks pay as compensation and quash any action taken by the employer in respect of the disciplinary or grievance matter (other than dismissal). In an unfair dismissal claim, the Tribunal may take into account an employer’s failure to allow the employee to be represented in deciding whether a dismissal was fair or unfair.
Footnotes
(1) Part 2 of the Employment (Jersey) Law 2003 requires employers to provide employees with a written statement of the main terms and conditions of their employment. Such statements must specify any terms and conditions relating to disciplinary and grievance procedures that are applicable. The employer may satisfy these requirements by referring the employees to a reasonably accessible document, which provides the necessary information.
(2) The Employment (Jersey) Law 2003, A.64 (2) (b).
(3) The Employment (Jersey) Law 2003 Article 64 (4) (a) and (b) provides that “the determination of the question whether the dismissal was fair or unfair (having regard to the reason shown by the employer) shall depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case”.
(4) See footnote (1)
25 May 2007
Appendix: A model grievance procedure
First stage
Employees should put their grievance, preferably in writing, to their immediate line manager. Where the grievance is against the line manager the matter should be raised with a more senior manager. If the grievance is contested the manager should invite the employee to attend a hearing in order to discuss the grievance and should inform the employee of his or her right to be represented depending on the nature of the grievance. The manager should respond in writing to the grievance within a specified time (e.g. within five working days of the hearing or, where no hearing has taken place, within five working days of receiving written notice of the grievance). If it is not possible to respond within the specified time period the employee should be given an explanation for the delay and told when a response can be expected.
Second stage
If the matter is not resolved at Stage 1 the employee should be permitted to raise the matter in writing with a more senior manager. The choice of this person will depend on the organisation. The manager should arrange to hear the grievance within a specified period (e.g. five working days) and should inform the employee of the right to be represented. Following the hearing the manager should, where possible, respond to the grievance in writing within a specified period (e.g. ten working days). If it is not possible to respond within the specified time period the employee should be given an explanation for the delay and told when a response can be expected.
Final stage
Where the matter cannot be resolved at Stage 2 the employee should be able to raise their grievance in writing with a higher level of manager than for Stage 2. The choice of this person will depend on the organisation. Employees should be permitted to present their case at a hearing and should be informed of their right to be represented. The manager dealing with the grievance should give a decision on the grievance within a specified period (e.g. ten working days). If it is not possible to respond within the specified time period the employee should be given an explanation and told when a response can be expected.
gov.je