EMPLOYMENT LAW UPDATER: CODE OF PRACTICE ON DISCIPLINARY & GRIEVANCE ISSUES

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1 EMPLOYMENT LAW UPDATER: CODE OF PRACTICE ON DISCIPLINARY & GRIEVANCE ISSUES MARCH 2014 EMPLOYMENT, PENSIONS & INCENTIVES W W W.C A R E YO L S E N.C O M B R I T I S H V I RG I N I S L A N D S C AY M A N I S L A N D S GUERNSEY JERSEY C A P E TOW N LO N D O N 1 / MARCH 2014 Employment Law Updater: Code of Practice on Disciplinary and Grievance Issues

2 IN A NUTSHELL... A revised Code of Practice (the 2014 Code) will replace the existing 2007 Code of Practice concerning Disciplinary and Grievance Procedures in Jersey. This will come into force on 1 April Breach of the Code of Practice does not of itself amount to a breach of the Law, but the Code of Practice will be taken into account by a Court or Tribunal when determining whether there has been a breach of the Employment (Jersey) Law 2003 (the Law). The 2014 Code is divided into Part 1 (disciplinary) and Part 2 (grievances). For the purposes of this note we have focussed on Part 1. For ease of reference we have used the same headings as contained in the Code and have included cross references to the relevant paragraph of the 2014 Code to which our comment relates in bold text. Where applicable we have included extracts from the 2014 Code in italics. The law concerning the right to a representative (Article 78A of the Law) remains unchanged. JACS has published guidance on the right to be represented: The 2014 Code is based on the ACAS Code of Practice and supporting guidance although there are some key differences. Employers should also remember that the Discrimination (Jersey) Law 2003 will come into force on 1 September 2014 applying initially to race discrimination. Appropriate disciplinary and grievance procedures are only part of the story, albeit a key part. STARTING POINTS Carey Olsen has produced three Starting Point Guides, which provide guidance on handling: Disciplinary issues Performance Grievances These guides are not intended to be definitive legal guides to such issues they are intended to assist employers (and managers) in getting to grips with the practical requirements of disciplinary, performance and grievance issues. KEY POINTS & COMMENTS When the 2014 Code applies Part 1 of the 2014 Code applies in disciplinary situations which can include misconduct and poor performance. If an employer has a separate capability (or 2 / MARCH 2014 Employment Law Updater: Code of Practice on Disciplinary and Grievance Issues

3 performance management) procedure then it should still follow the principles of fairness set out in the 2014 Code, although these principles may need to be adapted. The 2014 Code is not intended to be followed in the following cases: redundancy dismissals; the non-renewal of fixed term contracts on their expiry; and dismissals based on the fact that the employee is unable to work because of sickness or injury. However, it is important to recognise that there may be a risk of the employee bringing an unfair dismissal claim in such situations and so an employer should still behave reasonably in making a decision to dismiss. Behaving reasonably There is prominent reference at paragraphs 3 and 4 to judging the employer's obligation to behave reasonably with reference to the size and administrative resources of the employer: this reflects the language contained in the Law. Large employers will be expected to meet a higher standard than smaller employers but this does not give smaller employers a licence to flout the Law, and in particular all employers, no matter what their size, should be able to meet certain 'fundamental principles' (which are set out at paragraph 3). Conducting a fair investigation The investigation must be looking for evidence which tends to show that the employee is innocent just as much as evidence tending to show that he or she is guilty (paragraph 11). Failure to do this is likely to result in the tribunal being receptive to the suggestion that the outcome of the investigation was predetermined. Failure to pursue a plausible line of inquiry or speak to witnesses who are likely to have relevant evidence may be sufficient to render any subsequent dismissal unfair (paragraph 12). Arranging a disciplinary hearing Paragraph 14 of the 2014 Code states that the employee should be given copies of "all the written evidence that the employer intends to rely on. This should be given to the employee within sufficient time before the hearing to enable the employee to answer the case. The same written evidence should be provided to the person who will lead the hearing." Accordingly, you should not give the person holding the hearing additional information. If the written evidence contains sensitive and confidential information then you may not want this information to be taken off the premises. In such a situation you would need to make this information available for the employee to inspect and provide access to a meeting room or some other private space for the employee to use to prepare for the hearing. The employee should be given "adequate notice" of the disciplinary hearing - some guidance is given on how much notice should be given (see paragraph 15). In our opinion, when determining the amount of notice which should be given, use the amount of preparation time which is reasonably required as the gauge. 3 / MARCH 2014 Employment Law Updater: Code of Practice on Disciplinary and Grievance Issues

4 Conducting a fair hearing "Wherever possible, the hearing should not be conducted by the same person who conducted the investigation." (paragraph 17). We suggest devising a plan, at the outset, of possible candidates to conduct different stages of the process, taking into account the possibility that the matter could go to the appeal stage of the disciplinary process. "There is no requirement for witnesses to be brought into the hearing in person. It is usually sufficient for witness statements to be presented and discussed. However, where witnesses are invited to attend the hearing in person, the employee should be allowed to put questions to them about their evidence." (paragraph 20). It is much easier to manage a disciplinary hearing where witness evidence is in the form of witness statements. However, it is important to bear in mind that the hearing may need to be adjourned to collect further evidence from witnesses as a result of questions or matters which arise at the hearing. The person holding the hearing (and the note-taker at the hearing) should make a careful note of the points which need to be followed up (and confirm these points with the employee). It is important to then follow up on these points and relay any additional evidence collected back to the employee with a request for them to provide any additional questions or comment. It is good practice for the person holding the hearing to record the fact that any additional questions or comments raised by the employee have been taken into account as part of their decision. Making a decision "Once the evidence has been heard, the person conducting the disciplinary hearing should adjourn the hearing to consider what finding to make and what, if any, action to take" (paragraph 24). It is very important to make it clear to the person holding the hearing that they should not make (or give any indication of) a decision at the hearing itself. This should be part of your training and briefing given to the person holding the hearing. The same point applies in the context of a person making a decision at the appeal stage of the process. We recommend obtaining legal advice before deciding to impose sanctions such as a demotion, a reduction in salary or a loss of seniority (paragraph 28). Warnings Paragraph 31 states that warnings should be time limited. If you do not already have a policy dealing with this point then we recommend putting one in place so that you ensure that a consistent approach is taken. The suggested periods are as follows: "A warning should be time-limited. Typically a written warning will last for either 6 months or one year and should be kept on the employee s personal file for that period." "A final written warning should also be time limited and should not normally last for longer than 12 months." (paragraph 34) This does not mean that longer periods cannot be adopted. However, any longer periods will need to be carefully justified. For example, regulated entities will need to consider the interaction with their regulatory obligations under the JFSC 4 / MARCH 2014 Employment Law Updater: Code of Practice on Disciplinary and Grievance Issues

5 Codes of Practice relevant to them which require regulated entities (amongst other requirements) to ensure the fitness and propriety of staff. This obligation may provide grounds to justify longer 'live' periods. USEFUL INFORMATION Link to the 2014 Code: Jersey Arbitration Conciliation Service: ACAS (which is a UK organisation but has some helpful material): Link to the ACAS Code of Practice 1 Disciplinary and Grievance Procedures (which also contains an embedded link to a non-statutory guide): FURTHER INFORMATION We are happy to supply specific advice where required. 5 / MARCH 2014 Employment Law Updater: Code of Practice on Disciplinary and Grievance Issues

6 CONTACT US For further information or professional advice please contact our lawyers below. JERSEY T +44 (0) Esplanade St Helier Jersey JE1 0BD Channel Islands SIOBHAN RILEY Partner T +44 (0) E siobhan.riley@careyolsen.com HUW THOMAS Of Counsel T +44 (0) E huw.thomas@careyolsen.com KATIE RIO Associate T +44 (0) E katie.rio@careyolsen.com SARAH TOWNSEND Associate T +44 (0) E sarah.townsend@careyolsen.com Please note that this briefing is only intended to provide a very general overview of the matters to which it relates. It is not intended as legal advice and should not be relied on as such. Carey Olsen / MARCH 2014 Employment Law Updater: Code of Practice on Disciplinary and Grievance Issues