Sunday 30 October 2011

The Right To A Friend; My Last Proposition.

On Tuesday apart from asking my last Oral Questions, I am also due to present my last proposition, P112/2011.

Although P112/2011 will be the last of the 29 propositions I have lodged during my last Term of Office, I have no idea as to the number of propositions I have lodged during the course of my 18 years service. Some I know have been successful but alas not all.

P112/2011 arises from the work I have carried out on suspension issues. About three years ago I became concerned about the suspension of a large number of States Employees. Not only was this harmful to the employees but it was causing a disruption in the workplace and the Tax Payer who was picking up the bill.

It became evident that there was a need for an efficient and fair policy to be adopted with procedures in place to ensure that suspensions were the last resort and safeguards in place for both the employer and employee. It was also important that employees were not subjected to lengthy suspensions.

Whilst much publicity had been given to the unlawful suspensions of high profile employees, too little attention had been given to employees lower down the scale. However the large number of suspensions was a costly affair which appeared to be of little concern to the States Employment Board.

In 2009 I lodged P46/2009 seeking approval to establish a formal suspension procedure. This included a set procedure when employees were being suspended and the establishment of a Body to review the suspension every 28 days if the suspension had not ceased. Very importantly I sought the right to a “friend” to accompany employees whenever necessary.

Despite opposition from the States Employment Board and Council of Ministers, four of whom also sat on the Board my Policy was adopted. Although the Chief Minister had lodged an amendment seeking to deny the right of a “friend” to accompany he withdrew it before the matter was voted on because it became patently obvious that following fierce opposition he would not succeed.

Since then the States has also supported another of my propositions which has led to two non executive States Members joining the States Employment Board. One would have thought that given my interest in employment and suspension matters the Chief Minister would have considered me to be an ideal person to join the Board. Unfortunately I was not asked.

Since the adoption of the new policy I have been contacted by several employees seeking advice and assistance. One major concern is their inability to receive adequate support when involved with disciplinary matters including Hearings or Appeals.

In 2003 the States approved the Employment Jersey Law 2003 with Paragraph 78A providing the right to be represented at Disciplinary and Grievance Hearings. Sub paragraph 78A (2) states that an employer must permit the employee to be represented at the hearing by one representative chosen by the employee who is (a) an employee or an official of a trade union or (b) another employee of the employer.  

Whilst the above may be of some assistance it is of no use to employees who do not have work place colleagues or if they do, they may not have the necessary skills to be of any value. Likewise not all employees are members of a Union and again, from experience, not all officials are competent. I believe the Law should be amended to allow for employees to be represented by a “friend.” Unfortunately the States Employment Board and organisations representing private employers are crying “foul” because they fear that a “friend” could be a lawyer.

Although article 78A only provides for workplace colleagues or Union Officials to represent employees, some employees have Codes of Practice or similar Codes which permits them representation by a friend. These include police officers, teachers, lecturers, doctors and dentists. However this does not extend to civil servants or manual workers. P112/2011 seeks to rectify that anomaly.

Those who oppose my proposition claim that it will involve additional cost because those representing the employers will need additional training and the assistance of legal advisors. The Treasury Minister and States Employment Board believe there will be a need to employ a lawyer in the HR Department. It is estimated that the cost could easily rise to £500.000+ per annum.

I have no idea how that figure has been arrived at because since the introduction of the new suspension policy, the number of suspensions has dramatically dropped. Also as mentioned above a large number of employees are already permitted the right to “friend” which has not led to additional training or the employment of a Lawyer.

As previously mentioned much of the concern arises because it is feared that the “friend” might be a lawyer or have some form of legal expertise. This would bring a different dimension into the proceedings in that the test in law is that of “beyond reasonable doubt whereas in employment terms the test is that of “balance of probabilities. It is also feared that the presence of a lawyer would undermine the professional integrity of the HR officer managing the case.

The threshold is very much in favour of the employer so it is understandable that they wish to retain their advantage. However experience has shown that lawyers have not been involved since the introduction of the new suspension policy. Also given that some employees have Codes of Practices which permits “friends” one is entitled to assume that HR staff are already highly trained to cope with what ever may arise, therefore one if left to wonder why those representing the employers are opposing my proposition.

Surely it is in everyone’s best interest that suspensions are dealt with fairly with all players partaking on a level playing field. 

It should be noted that my proposition was due to be debated in July but I agreed to Social Security’s request to defer to allow for more consultation. I believe that has occurred but unfortunately I have not received any feedback.                                                     


  1. So Long, Bob - thanks for all your hard work over the years.

  2. You will be missed Deputy. Thank you for all the hard work you have put in on behalf of the people of Jersey.