Disciplinary policy for public servants

​Introduction

This document comes in two parts.

Part one sets out the Jersey public services policy and principles regarding disciplinary.

Part two provides the procedure, setting out how to implement the policy with links to toolkit items to give you more information. The procedure is intended as a guide only and may change or be varied from time to time.

This policy supersedes all previous policies, circulars and procedures connected with disciplinary within the Public Service.

Code of practice and policy family 

This policy forms part of the code of practice for performance and accountability. This code will be reviewed at the start of each term of States Employment Board, or earlier where relevant legislation or regulations change.

Disciplinary policy

Policy purpose

The purpose of this document is to provide guidance on the Jersey public services approach to dealing with disciplinary matters.

Policy principles

All our policies are underpinned by our values and behaviours.

This policy and procedure aims to:

• ensure everyone is treated in a fair, consistent, and equal manner, free from discrimination and victimisation
• be clearly written, easy to understand and apply
• ensure our compliance with the Employment (Jersey) Law 2003, Discrimination (Jersey) Law 2013 and other relevant legislation and regulations
  

Where appropriate, disciplinary matters will be dealt with informally. The formal disciplinary procedure will be used where informal resolution has failed or where disciplinary matters are more serious.

• disciplinary matters will be dealt with sensitively and where possible in a swift manner
• where an investigation is necessary, it will be fair, independent and confidential
• you have the right to be accompanied at any formal meeting
• wellbeing support is in place and available to everyone
  

People and Corporate Services will monitor data recorded in accordance with our Employee Privacy Notice regarding disciplinary to help address areas of concern and safeguard against future problems.

Policy scope

This policy applies to all Jersey public servants on permanent and non-permanent contracts of employment or agreements, including those on zero hours contracts. Whilst this is a Jersey Public Services policy, it applies to public servants employed by the States Employment Board. Any reference to public servants means the wider non-executive arm of public services.

This policy also applies to situations where there is an allegation of misconduct outside of the workplace which brings the Jersey Public Service into disrepute.

This policy does not apply to:

• police officers within the States of Jersey Police Force for whom a separate disciplinary procedure applies
• those working for the States Employment Board through a contract for services, on an interim, locum, self-employed, or agency basis
• voluntary staff or those on honorary agreements where there is no implied contract of employment
• office holders and Crown Appointments who should use the Departments of the Judiciary and Legislature (Jersey) Law 1965
• those engaged as independent regulators, commissioners or those appointed directly by ministers

However, those falling into these categories would be expected to participate where required in any investigation and subsequent or necessary part of the disciplinary procedure, for example, as a witness.

Doctors and dentists should read this policy in conjunction with the Policy for the Handling of Concerns and Disciplinary Procedures relating to the Conduct and Performance of Doctors and Dentists to determine the procedural steps to follow.

Performance and accountabilities

All of us 

We all have a responsibility to treat colleagues fairly and to live the values of our organisation:

• We are respectful
• We are better together
• We are always improving
• We are customer focused
• We deliver
  

Understanding what is expected of us and maintaining good standards of conduct and performance in accordance with our contract of employment, professional codes and standards and rules, policies and procedures and the Codes of Practice, including Standards in Public Service.

Taking ownership of our development. This includes undertaking any training provided to help with our understanding of this policy.

Letting our line manager know as soon as possible if there is a reason preventing us from maintaining good standards of conduct or performance.

If we are involved in a disciplinary procedure, we all have responsibility for:

• ensuring that we act promptly and that we do not unreasonably delay any part of the process
  
• maintaining confidentiality throughout the process
• declaring any conflicts of interest at any stage of the disciplinary process
• acting professionally and helping to resolve any negative effects after the disciplinary procedure has been completed
  

Line managers 

Our managers are role models, set clear standards and are supportive (People Strategy Commitment – Your Experience). As a line manager, you are responsible for modelling our values and behaviour.  You set the tone for your team.

Our People Strategy 

You are responsible for familiarising yourself with this policy and understanding your role in the procedure, particularly responding swiftly.  You are also responsible for undertaking any relevant management training or briefing session related to this policy or people management generally.

You must ensure that all members of your team are aware of the required standards of conduct and performance expected of them and give them assistance and support to meet them.

You are responsible for assessing the severity and risks of any disciplinary matter identified in your team.

You are responsible for ensuring good two way communication is maintained throughout any part of the process to keep all parties informed and up to date.

You must ensure that individuals are aware of the support measures available to them and be mindful of general team wellbeing during any disciplinary process.

You are also responsible for helping repair working relationships after any process has concluded.

Group Director – People and Corporate Services 

You are the custodian of all Government of Jersey people policies.

You will ensure that this policy and its procedure:

• are implemented using appropriate communication methods, to aid organisation-wide awareness, in order that responsibilities can be fulfilled
• are reviewed in line with the schedule in the policy control sheet
• has been developed in keeping with the Corporate Policy Framework and Policy Guidelines, and our People Strategy
• have mechanisms in place to monitor data relating to concerns raised
  

HR Case Management 

Responsible for providing advice on this policy and procedure. Will monitor and oversee the quality and timescales of any investigations that may become necessary as part of this policy's procedure. 

Informing the appropriate full time Union Officer or Head of the Association at the earliest possible opportunity where a recognised representative of a registered Trade Union or recognised staff representative body may be the subject of a disciplinary procedure.

Chief Executive Officer, Chief Officers and Heads of Administration

You are accountable for familiarising yourself with:

•  our six Codes of Practice
  
•  this policy and procedure

You are responsible for ensuring line managers and employees within your department carry out their responsibilities, as set out in this policy. This includes the notification and recording of any breaches and upholding the spirit of the code of this policy and its procedure generally.

You are responsible for modelling and championing our values and ensuring that our organisation's standards and expectations are communicated clearly and fully adopted by your department. You set the tone for the behaviours both within your department and across the organisation.

States Employment Board 

The Board has a duty to issue Codes of Practice in accordance with Article 8 of the Employment of States of Jersey Employees (Jersey) Law 2005.  This code will be reviewed at the start of each term of States Employment Board, or earlier where relevant legislation or regulations change. 

Disciplinary definitions and examples

What is a disciplinary matter

A disciplinary matter can usually be defined as either:

• misconduct (conduct that is in breach of our values and behaviours, our organisation's rules and expectations or policies, professional standards, regulations, or legislation)
• wilful or deliberate unsatisfactory performance (unsatisfactory performance that is not wilful will be addressed through our Capability policy)
  

How serious is the alleged disciplinary matter

When a disciplinary matter is alleged, your line manager needs to establish its severity:

Disciplinary general rules and performance

Depending on the severity, there are a number of outcomes:

• informal action - the misconduct is minor and informal action is appropriate without the need for a five day fact find
• a five day fact find - conducted to establish what has happened and to determine the severity of the situation. This will provide more information to enable a decision on what action is required
• formal action (investigation) - the severity is allegedly serious or gross misconduct
• crime committed - speak to HR Case Management team immediately
• safeguarding concerns – refer to your safeguarding team lead immediately
• immediate suspension
  

The procedure

Informal action

Line managers oversee informal action and have a responsibility to act swiftly to address the misconduct.

Single, minor instances of rule breaking, or behavioural concerns are sometimes best dealt with informally.  An early honest discussion is often all that is required to identify the cause of and improve an employee's conduct or behaviour. This should be managed at the earliest opportunity in a private one-to-one meeting between the employee and line manager, or a delegate if not appropriate or due to absence.

The private one-to-one meeting should:

• be a private and confidential discussion between all parties involved
• active listening with an unbiased view
• establish and agree any areas of improvement
• establish and agree a training or development plan where a performance issue is identified
• establish and agree any timelines for improvement and likely outcome if the improvement is not made (formal action)

A file note will be prepared accordingly by the line manager or delegate, summarising the key points of any discussions and any agreed outcomes. A copy will be given to the employee for their own records and the original saved in the employee's personal file.

An informal file note is not part of the formal process so will not hold a right of appeal.

File note guidance

File note template

If you determine that the issue is more closely linked to performance and ability rather than behaviour, following the capability policy may be more appropriate.

Five day fact find

Five day fact finds form part of the informal process and line managers will carry these out to establish severity of the situation. They should be conducted within 5 days of the allegation or when reasonably possible.

Five day fact find guidance

Formal action

Formal action should be used in the following circumstances:

• further investigation is required following informal action
• insufficient improvement further to informal action within agreed timelines
• the outcome of the five day fact find suggests formal action
• the severity of the alleged misconduct is assessed as serious/ gross misconduct
• a live disciplinary sanction is in place at the time of the allegation and a subsequent disciplinary matter arises

There may be other situations not listed above where formal action is appropriate. In situations not listed above, line managers should make informed decisions about whether formal action is the necessary option.

In cases of repeated minor misconduct, the fast-track procedure can be considered if misconduct is acknowledged by the employee.

Line managers must complete a case management referral form to make a formal referral.  However, if you wish to discuss this prior to submission, you can contact hrcasemanagement@gov.je or contact 01534 440055.

Case Management Referral Form

Fast-track process

The fast-track process can be more appropriate in certain circumstances. It is an alternative to a disciplinary hearing and can allow for faster resolution.

When the fast-track process is appropriate

Prior to an investigation between a line manager and employee

• in cases of alleged misconduct that do not constitute gross misconduct and therefore dismissal would not be considered
  

Or;

during any stage of the formal investigation process between the commissioning manager and employee

• in cases of alleged gross misconduct where dismissal is not an option and
• the fast-track process has been discussed and agreed by HR case management as an option to proceed

and;

• the employee does not have a live disciplinary sanction at the time of the allegation on file
  
• the employee does not wish to contest any of the allegations
• when an employee admits the initial allegations put to them in full and states that they have learnt from the experience
• the employee agrees that they do not wish to proceed with a full disciplinary investigation or hearing in line with the Disciplinary policy
• the employee agrees to proceed with the fast-track process
• a fact find has been conducted to provide sufficient evidence to support any potential sanction issued
• line manager or commissioning manager have referred to HR case management for guidance if unsure of severity of the alleged misconduct

In these circumstances and where an employee does not wish to contest the allegations, the employee can opt to request that their case be dealt with by way of this fast-track process.

When the fast-track process is not appropriate

The fast-track process should not be used in the following instances unless advised otherwise by HR case management:

• where there are safeguarding issues
• where a referral may need to be made to a professional body or DBS
• if there is a connected disciplinary process involving another colleague
• if the employee does not or is unable to fully comprehend what the fast-track process entails and means to them
  

Fast-track procedure

An appropriate informal fact find or investigation needs to have been conducted to provide sufficient evidence to support any potential sanction being issued and referral to HR case management for guidance if unsure of severity of the alleged misconduct or to confirm whether the fast-track process is appropriate.

The procedure;

• line manager or commissioning manager meets with employee to discuss concern and conduct appropriate fact find or investigation
• employee admits to allegation/concerns in full
• line manager or commissioning manager and employee discuss fast-track process option if meets eligibility and outlines terms of the process;
  

1. no right to appeal
   
2. right to representation
3. 10 days' notice given prior to fast-track meeting
   

There is no obligation for an employee to move forward with the fast-track process if they decide it is not appropriate for them. If an employee decides they do not want to proceed, then the formal disciplinary investigation or hearing process should be followed.

If both the line manager or commissioning manager and employee mutually agree to move forward with the fast-track process and guidance or agreement sought from HR case management where required, a fast-track meeting will be arranged:

• formal invite sent to employee in line with confidentiality guidelines
• terms of process to be provided to the employee alongside invite
• any documentation related to the allegation for example, fact find notes, are to be provided to employee in advance
  

It is important that a fast-track meeting does not take place unless the employee has been informed of all terms of process.

• a minimum of 10 working days' notice will be given
• employee informed they have right to representation
  

Fast Track Form - Line Manager

Fast Track Form - Commissioning Manager

Fast-track form is to be sent to employee prior to fast-track meeting.

Fast-track meeting and who will be involved

• the meeting will be held by the line manager or commissioning manager
• employee will be present
• employee representative in line with the right to be accompanied guidelines
• HR case management if the line manager or commissioning manager require advice and guidance during the meeting
  

What will happen in an agreed fast-track meeting

• the fast-track form will be completed during the meeting
• the line manager or commissioning manager will outline the nature of the allegation or allegations which you have admitted to and confirm that you accept them in full as previously stated
• you will have the right to put forward any comments or statements relating to the matter
• any mitigation or lessons learnt discussed
• manager confirms sanction to be given
• any additional comments are discussed and added
• all parties read over the completed fast-track form to ensure what has been noted is a true reflection
• form is signed by both the employee and line manager or commissioning manager to agree the decision and outcome are mutually agreed
• line manager or commissioning manager will send the complete signed form to HR case management along with any supporting documents
  

HR Case Management involvement in fast-track process

• sign fast-track form to acknowledge the fast-track process
• issue agreed sanction in writing to the employee within 5 working days
• save a copy of the completed signed fast-track form, any additional relevant supportive documents and sanction letter in the employees personal file in line with the timeframe associated with the sanction
  

There is no right to appeal once the fast-track process has been agreed and implemented.

Investigation

If formal action is necessary, an investigation will take place, coordinated by the HR case management team. An employee must be notified prior to being investigated and informed of any allegation made against them.

• a case manager is assigned to provide support, advice and policy guidance
• a commissioning manager is also assigned, who is the decision maker. They will consider the investigation report and inform the public servant of the outcome 
  

To find out more information on how investigations are completed, you can read our investigation framework.

Investigation outcomes

• no further action
• informal action
• formal action

Where the outcome is formal action, it will progress to a disciplinary hearing or if appropriate, the fast-track process for faster resolution.

Disciplinary hearing

The Disciplinary Hearing should be chaired by a manager determined by the Employer, appropriate to the severity of the allegation who should not have had any prior involvement in the investigation.

You will be given 10 working days notice to attend a disciplinary hearing and will follow the formal hearing procedure.

The formal hearing procedure for public servants can be found on MyStates.

Disciplinary hearing outcomes

• no action
• informal action
• first written warning - valid for 9 months, except in instances of safeguarding, where this remains indefinitely
• final written warning - valid for 12 months except in instances of safeguarding, where this remains indefinitely
• dismissal with pay in lieu of notice
• summary dismissal without notice

The rationale for the outcome

• where applicable, the improvement required, with any relevant timescales
• any further action that may be incurred if there is no satisfactory improvement or if further misconduct occurs
• their right to appeal
  

No action and informal action – due to the steps (five day fact find and investigation) in this procedure, it is unlikely that disciplinary matters which result in no action would reach a formal disciplinary hearing, however this is still a valid outcome if deemed appropriate.

All disciplinary warnings will remain in force for a fixed period, as defined in the outcome letter sent to the employee following the disciplinary hearing.

All records of disciplinary hearings, decisions and warnings will be kept on the employee's personal file in accordance with data protection legislation.

All warnings will be applied with effect from the date of the hearing irrespective of whether an appeal is pending.

Dismissal

In cases where the outcome is dismissal (except in the case of gross misconduct) the employee will be paid in lieu of notice, at the rate of pay being paid at the date that notice is given, irrespective of whether an appeal is pending.

Dismissal following cumulative warnings will normally be with pay in lieu of notice.

Employees dismissed with pay in lieu of notice will not be required to work their notice.

In the case of gross misconduct, the employee will be dismissed with immediate effect and without notice, irrespective of whether an appeal is pending.

Criminal offences or charges are not automatic reasons for dismissal. The line manager together with HR case management should consider the facts and whether the charge or offence is relevant to the individual's employment.

Appeal

There is a right of appeal against the outcome of a formal hearing. Grounds for your appeal should be set out in writing, within 10 working days of the hearing outcome and sent to the HR case management team.

The appeal procedure for public servants can be found on MyStates.

Roles and responsibilities during this procedure

A Public Servant or Employee is:

• any employee with disciplinary allegation/s against them.

A Commissioning Manager is:

• the person who is ultimately responsible for a formal case. A commissioning manager is usually from the business area, but for smaller departments, a commissioning manger can be sought from across the Government where there are concerns of conflict or has had prior involvement in the case 
• therefore, this may or may not be the employee's line manager

A Line Manager is:

• generally, someone unconnected to the employee's section or team and they may be called into the hearing as a witness by either party. 
• In less complicated investigations the investigation officer may be the employees line manager
  

A Panel Chair is:

• a senior representative with appropriate authority and experience to conduct the hearing and have no prior involvement in the case

HR Support to Chair is:

• a representative from People & Corporate Services who provides procedural advice to the Chair

A Trade Union Representative:

• works in partnership with the Government of Jersey to promote the ethos of this policy and its procedure
• adequately supports any member who approaches them with a concern
• ensuring your representatives are adequately trained and undertake any training provided by the Government of Jersey to assist with understanding of responsibilities within this policy

A Companion Support:

• under discrimination legislation, employers must make reasonable adjustments to accommodate an employee with a disability. This may mean flexibility in agreeing to a companion such as a support or care worker. This is in addition to the union representative or workplace colleague

Commissioning Manager responsibilities:

There may be circumstances when the line manager is not the commissioning manager. In this situation, the line manager is responsible for completing the case management referral form.

• completing the case management referral form and submitting to peopleconsultancyservices@gov.je
  
• agreeing the terms of reference for the investigation with the case manager
• meeting the employee with the case manager to inform the employee of the allegations against them
• deciding on the course of action following the conclusion of the investigation
• discussing the suspension with the Chief Officer or delegate or nominee of the department
• writing the management case if moving to a formal Disciplinary Hearing
• writing questions to ask the employee and any witnesses being called to the formal Disciplinary Hearing
• presenting the management case at the formal Disciplinary Hearing

Case Manager responsibilities:

• reviewing details in the case management referral form, ensuring the form submitted is the current version and has been appropriately completed
• ensuring a five day fact find has been completed prior to proceeding to a formal process
• contacting the commissioning manager within 48 hours of being allocated the case
• reviewing disciplinary rules to establish the level of the case for example misconduct or gross misconduct
• providing advice on whether suspension should take place, if the allegations are gross misconduct or agreeing what alternatives can be put in place, in line with the completed risk assessment
• arranging HR support if the employee is suspended
• writing the report and attending the suspension review panel for each case where the employee is suspended
• agreeing the terms of reference for the investigation with the commissioning manager and determining the level of misconduct
• writing the letter to the employee advising of the terms of reference for the investigation
• securing and appointing appropriate independent investigator(s)
• ensuring regular updates are received from the independent investigator(s) and parties to the process are updated
• reviewing the investigation report for quality and ensuring it meets the required standard, prior to sharing with the commissioning manager

Responsibilities of HR Support when an employee is suspended:

• contacting the suspended employee on a weekly basis
• maintaining the contact log to be forwarded to the case manager ahead of the Suspension Review Panel
• immediately raising any concerns they may have for the suspended employee's wellbeing with the case manager

Investigator responsibilities:

• prepare and draft an investigation plan
• identify sources of evidence
• carry out interview with employees and any witnesses
• raise any wellbeing issues to the case manager
• provide a statement to witnesses after the investigation meeting in line with agreed timescales
• produce a report
• attend the hearing if required

Panel Chair responsibilities:

• clarifies the process followed at the hearing including roles and responsibilities
• outlines the procedure of the hearing to all parties
• decides on any exception to the hearing, with procedural advice from People & Corporate Services
• determines the findings based on evidence provided
• facilitates the panels deliberations
• decides on the appropriate outcome of the hearing
• informs the relevant parties of the outcome ideally in person and in writing, within 5 working days of the hearing taking place

HR Support to Chair responsibilities:

• provides HR advice to the chair on procedure
• ensures policy and procedure is being followed during the hearing
• advises Chair on employment and discrimination legislation, and on policy and procedural matters
• accompanies Chair to deliver the outcome of the hearing

Trade Union Representative's responsibilities:

• to accompany the employee at the hearing when required
• cannot act in any legal capacity
• may respond to any views expressed at the hearing
• may confer with employee
• may question witnesses if required
• cannot answer questions on the employees' behalf
• may address the hearing in accordance with the wishes of the employee
• cannot prevent the management or investigating officer from explaining their case
  

Suspension

Dependent on the nature of the disciplinary action, immediate suspension may be necessary. This would be done prior to a five day fact find. Suspension is viewed as a neutral act and is not a disciplinary sanction. Examples of when it might be necessary to suspend include:

• allegations of gross misconduct
• safeguarding allegations
• criminal activity
• lapsed registration under the Health Care (Registration)(Jersey) Law 1995

Read our suspension policy​ for further information.

Criminal proceedings

If police or criminal proceedings commence during an internal investigation of a disciplinary matter then the investigator may consider, upon advice from HR Case Management, whether to put their investigation on hold until the criminal proceedings have concluded. There are agreements in place which will be adhered to including the States of Jersey JDO and Adult Safeguarding.

Right to be represented or accompanied, including companion support

By law, any employee can bring one person to a formal meeting, this can be a trade union representative or a workplace colleague. In addition, employees who require reasonable adjustments may also be entitled to companion support.

Right to be accompanied

Support and wellbeing

Your wellbeing is our priority, everyone should feel safe and supported in the workplace, sources of wellbeing support and guidance can be found for public servants on MyStates

Confidentiality

We all have a right to confidentiality throughout this procedure. Read our confidentiality toolkit for more guidance.

Confidentiality

Glossary of terms

See our glossary of terms for definitions or explanations.

Glossary