Staff Appeals Policy. Contents. Overview. Key Information A guide for all staff

Transcription

1 Overview 1 Summary 2 Further Information 3 Review Key Information A guide for all staff Purpose 1.2 Statement 2 The Right to Appeal 2.1 Who to Appeal To Primary Information A guide to the procedure for anyone considering making an appeal 1 Circumstances in Which Appeals Apply 1.1 Formal Disciplinary Warnings 1.2 Dismissal 2 How to Make an Appeal 2.1 Time Limits 2.2 Right to be Accompanied 3 Process 3.1 Who Hears the Appeal? 3.2 Date of the Appeal Hearing 4 Grounds for Appeal 5 New Evidence 6 Conduct of the Hearing 6.1 Introduction 6.2 Procedures for Hearing 6.3 Witness 6.4 Outcome 7 Date of Termination 8 Employment Tribunals Supporting Information A guide for the conduct of appeals hearings 1 Procedure for Hearing Flow Chart Contents Page September 2012 Ref:POL0006

2 Contents Supporting Information Senior Post Holders 1 Procedure for Hearing 1.1 Dismissal Disciplinary 1.2 The Right to Appeal 2 Circumstances in which Appeals Apply 2.1 Formal Disciplinary Warning 2.2 Dismissal 3 How to Make an Appeal 3.1 Time Limits 3.2 Who to Appeal To 3.3 Right to be Accompanied 4 Process 4.1 Who Hears the Appeal 4.2 Date of the Appeal Hearing 5 Grounds for Appeal 6 New Evidence 7 Conduct of the Hearing 7.1 Introduction 7.2 Procedures for Hearing 7.3 Witness 7.4 Outcome 8 Date of Termination 9 Employment of Tribunals Appendices Page Appendix A Meeting Procedure 13 This document is available in large print or in an alternative format that meets your needs. Please contact the HR Manager. September 2012 Ref:POL0006

3 Overview 1 Summary This document covers the College's policy and procedures relating to employees of the College and their right to appeal against any formal disciplinary penalty or a decision to dismiss for any reason. 2 Further Information Deputy Principal Personnel Department UCU Branch Officers UNISON Shop Steward Clerk to Corporation 3 Review This document will be reviewed annually. September 2012 Page Ref:POL0006

4 Key Information A guide for all staff Purpose It is an established principle of good employment practice that employees should have an opportunity to appeal against any disciplinary penalty. Equally employees should be allowed an appeal against dismissal (including redundancy) for any reason. 1.2 Statement It is the policy of the College that staff will have the right of appeal against all formal decisions that result in the imposition of any disciplinary penalty or dismissal for any reason. The appeal will always be to an individual or panel with greater authority than the person who made the original decision. Therefore appeals against decisions made by the Principal will be to the College's Governing Body and decisions made by other delegated senior post holders will be made to the Principal. 2 The Right to Appeal Any disciplinary penalty, even an oral warning, is put in writing. Details of the right to appeal and how to exercise that right are included. Dismissal, for any reason, is written as a letter which should also include information on how to appeal against the decision. If any of the above circumstances apply to you it is important that you follow the Appeals Procedure correctly as failure to do so could be detrimental to your case. You have the right to be accompanied to all meetings in connection with such matters by a colleague or trade union representative. You are not permitted to have a legal or other professional adviser with you unless the College intends to be legally represented or it agrees otherwise having received such a request in advance. If you are facing dismissal (including redundancy) or a formal disciplinary hearing you are advised to seek support from your trade union or a colleague. You are advised to obtain a full copy of this document, Staff Appeals. Staff who are unhappy with a manager's decision or actions in any other circumstances should follow the guidelines in the Grievance Procedure. This applies to all types of decisions including informal disciplinary warnings. 2.1 Who to Appeal To The Principal may delegate disciplinary including dismissal to the holder of any other senior post. Therefore you will be told to whom you should appeal at the time of notification of your right to appeal. September 2012 Page Ref:POL0006

5 1 Circumstances in Which Appeals Apply 1.1 Formal Disciplinary Warnings Primary Information A guide to the procedure for anyone considering making an appeal. If you have been given a formal disciplinary warning then you will have been informed at the same time of your right to appeal against the decision. A formal disciplinary warning can only be given by following the College's Disciplinary Procedure. Even an oral warning is put in writing. 1.2 Dismissal If you have been given notice of dismissal by the College for any reason then included in the letter informing you of that decision will be notification of your right to appeal. 2 How to Make an Appeal 2.1 Time Limits When you are informed of your right to appeal you will be given a time limit within which you must make known in writing that you wish to appeal. It is important that you keep within this time limit otherwise you could lose your right to appeal. The time limits are written in other policies such as Disciplinary or Redundancy, you should ensure that you have copies of these policies if they apply to you. As general guidance you normally have ten days to lodge an appeal. 2.2 Right to be Accompanied If you are in the situation of considering an appeal you will have already been informed of your right to be accompanied to any meetings connected with the matter. This right allows you to take a colleague or Trade Union representative with you. You are not permitted to have a legal or other professional adviser with you unless the College intends to be legally represented or it agrees otherwise having received such a request in advance. A flow chart showing the stages of the procedure is on page 8. September 2012 Page Ref:POL0006

6 3 Process 3.1 Who Hears the Appeal? Primary Information A guide to the procedure for anyone considering making an appeal. One person or a panel may hear an appeal. The person hearing the appeal or the chair of a panel will always be more senior than the person who made the original decision. If the Principal made the original decision, as may be the case for a dismissal, then the appeal will be to the College's Governing Body. The Principal may delegate the responsibility for a disciplinary hearing and decision to dismiss to a member of the Senior Management Team. In which case the Principal would hear the appeal. The Governors would normally appoint a sub-committee to hear an appeal. If any Governor has been involved in the original decision then that Governor could not be a member of the appeals panel. Should a member of staff be dismissed with immediate effect for reasons of gross misconduct, the appeal will be heard by a committee established by the Corporation. In such cases, the Principal would not attend the hearing. 3.2 Date of the Appeal Hearing The date of the Hearing should be held as soon as is reasonably practicable after the notice to appeal is received giving at least one week notice. Attempts should be made to negotiate a mutually convenient date. Should the chosen companion be unavailable on the date of the meeting, the employee may delay the date once by up to 10 working days. 4 Grounds for Appeal When you write your letter indicating your intention to appeal you should outline briefly the grounds of your appeal. It is important for you to understand that an appeal is not a re-run of the original hearing when the original decision was made. The following list gives examples of grounds for appeal: The Disciplinary or Redundancy Procedure was not correctly followed. You were not given a fair hearing. New evidence has come to light which could have affected the outcome The Principal or other manager involved in making the decision was biased. Mitigating factors were not taken into account. The disciplinary penalty was inappropriate / inconsistent / too harsh. Unfair application of selection criteria for redundancy. The above list is examples only and is not exclusive. 5 New Evidence If new evidence comes to light after a decision has been taken then it must be made available to both sides immediately and at least a week before the Hearing. If you have new evidence you must not save it until the Appeal Hearing. If you withhold new evidence it may not be allowed to be considered. Equally if the College has new evidence it must be disclosed to you and not produced without warning at the Appeal Hearing. New evidence should be carefully considered at the Appeal Hearing. Both parties must be given an opportunity to comment on any new evidence. September 2012 Page Ref:POL0006

7 Primary Information A guide to the procedure for anyone considering making an appeal. Any evidence which emerges during the week prior to the Hearing or during the Hearing itself will only be allowed if it can be demonstrated that it could not have been produced earlier. In such circumstances the person hearing the appeal or the chair should allow an adjournment for the evidence to be considered and a response made. It is important that new information should not be used in a way that would allow the substitution of a different reason for the original decision. 6 Conduct of the Hearing The appeal is not a re-run of the original hearing. 6.1 Introduction The person or chair of the committee hearing the appeal will explain to you how the appeal will be conducted, its purpose and the roles of those present. This will include explaining the powers of the Hearing and the need for a note taker. 6.2 Procedures for Hearing There are detailed procedures for those hearing your appeal to follow. If you do not already have a complete copy of this document, Staff Appeals, then you should obtain one from Personnel or the Intranet. You should ensure that you understand how the Hearing will be conducted. If you have a representative then s/he should be able to advise you on such matters. You should not directly approach anyone who is going to hear your appeal but you can ask questions of others involved such as the Clerk to the Corporation who is impartial and experienced in these matters. 6.3 Witnesses The Hearing is a review of the decision and so it is not necessary to call all the witnesses present at the initial hearing. The witnesses need only to be called where the facts are disputed. However witnesses may be called by either party if they are required to support the case. 6.4 Outcome You will be notified of the outcome. This may not be immediate as the person or committee hearing the appeal may want time to consider the matter. The decision of the Hearing will be confirmed in writing to you within 5 working days. 6.5 An employee who has been suspended without pay may appeal both in writing and orally to the Corporation against the suspension. Notice of such appeal shall be given in writing by the employee to the Clerk to the Corporation and the appeal shall be heard as soon as possible by a committee consisting of three members of the Corporation, excluding the Principal, the staff members and the student member. 6.6 A suspension against which an appeal by an employee is made shall continue to operate pending the determination of the appeal September 2012 Page Ref:POL0006

8 Primary Information A guide to the procedure for anyone considering making an appeal. 6.7 Where an appeal against suspension is made by an employee to the Corporation, the employee shall be given at least five working days notice of the date, time and place fixed for the hearing, unless an earlier date has been mutually agreed. 6.8 At the hearing of an appeal against suspension, the employee may be accompanied and represented by a trade union representative or workplace colleague of his or her choice. 6.9 Following the hearing of an appeal against suspension, the Corporation s committee appointed to hear the appeal may either confirm the suspension or lift the suspension. The decision of the Corporation, and the reasons for the same, shall be confirmed by the Clerk to the Corporation in writing to the employee without unreasonable delay following the hearing of the appeal. 7 Date of Termination If you are dismissed and subsequently appeal in line with the college procedure and the dismissal is due to take effect before the hearing, the dismissal will still go ahead. The appeal hearing will take place at its scheduled date. Should the appeal reverse the decision of the dismissal hearing, you will be reinstated and payment at the usual rate will be made for the intervening period. 8 Employment Tribunals If you have followed the College's procedure through then you have no further right of appeal. However you may have recourse to an Employment Tribunal within the statutory limitation period. September 2012 Page Ref:POL0006

9 Supporting Information A guide for the conduct of appeals hearings. 1 Procedure for Hearings The employee should have specified the grounds of the appeal in writing when requesting a Hearing. This procedure is to be followed by a sub committee of the Corporation/Principal when hearing an appeal by an employee who has been selected for dismissal/suspension/or any disciplinary penalty. (i) (ii) (iii) All relevant documentation to be sent to all parties at least one week before the date of the hearing. The member of staff will make representation either orally or in writing and may be accompanied by a colleague or Trade Union representative. The person hearing the appeal should consider the original decision and any representatives of the staff member and take such action as they consider appropriate. The Hearing will need to consider the following: What are the facts of the case? Was the original decision based on a reasonable conclusion relating to the facts of the case? Has the appropriate procedure been followed? If it has not, does it affect the validity of the decision? Was the decision consistent in the approach taken in similar situations? Does the case raise any broader issues concerning the College or its policies/procedures? (iv) (v) The decision will be communicated to all parties without unreasonable delay (usually within five days) The procedure fro the hearing is to be found at Appendix A. September 2012 Page Ref:POL0006

10 APPEALS PROCEDURE Disciplinary Action/Redundancy Notice Letter received. Gives Appeal details Employee decides to Appeal Write to name identified in letter within timescale stipulated Outline briefly the grounds for your appeal Hearing to take place as soon as reasonably possible following the date of Appeal request but not less than 1 week Employee Appealing has right to be accompanied by colleague or Trade Union Representative. Outcome of Appeal notified to Employee and College Party within 5 working days The Appeal Hearing decision is final. (You may have re-course to an Industrial Tribunal.) September 2012 Page Ref:POL0006

11 Supporting Information Senior Post Holders 1 Procedure for Hearing 1.1 Dismissal Disciplinary The Corporation are responsible for the appointment and dismissal of the Principal, holders of Senior Posts and Clerk to the Corporation. Subject to Article 16 and 17 (Articles of Government) dismissal of senior staff by special committee. 1.2 The Right to Appeal Any disciplinary penalty, even an oral warning, is put in writing. Details of the right to appeal and how to exercise that right are included. Dismissal, for any reason, is written as a letter which should also include information on how to appeal against the decision. If any of the above circumstances apply to you it is important that you follow the Appeals Procedure correctly as failure to do so could be detrimental to your case. You have the right to be accompanied to all meetings in connection with such matters by a colleague or trade union representative. You are not permitted to have a legal or other professional adviser with you unless the College intends to be legally represented or it agrees otherwise having received such a request in advance. If you are facing dismissal (including redundancy) or a formal disciplinary hearing you are advised to seek support from your trade union or a colleague. You are advised to obtain a full copy of this document, Staff Appeals. Staff who are unhappy with a manager's decision or actions in any other circumstances should follow the guidelines in the Grievance Procedure. This applies to all types of decisions including informal disciplinary warnings. Senior post holders who are unhappy with the Corporations decision or actions on other circumstances should follow the guidelines in the Grievance Procedure. This applies to all types of decisions including informal disciplinary warnings. 2 Circumstances in which Appeals Apply 2.1 Formal Disciplinary Warning (to include redundancy) A formal disciplinary warning can be issued by the Principal or Corporation. It will state in the warning letter, the right to appeal. 2.2 Dismissal The dismissal of a senior post holder can only be carried out by the Corporation (subject to Article 16 and 17). Only the Chair/Vice Chair or majority of members can dismiss a senior post holder. September 2012 Page Ref:POL0006

12 Supporting Information Senior Post Holders Dismissal of senior staff and the special committee Article 16 - Grievance, suspension and disciplinary procedures 1 (1) After consultation with staff, the Corporation shall make rules setting out (a) grievance procedures for all staff; (b) procedures for the suspension of all staff; and (c) disciplinary and dismissal procedures for (i) senior post-holders, and (ii) staff other than senior post-holders and such procedures shall be subject to the provisions of articles 3(1)(e), 3(2)(e), 9(d), 9(e), 10(1) and 17. (2) Any rules made under paragraph (1)(b) shall include provision that where a person has been suspended without pay, any appeal against such suspension shall be heard and action taken in a timely manner. (3) Any rules made under paragraph (1)(c)(i) shall include provision that where the Corporation considers that it may be appropriate to dismiss a person, a preliminary investigation shall be conducted to examine and determine the case for dismissal. Article 17 - Suspension and dismissal of the Clerk 2 (1) Where the Clerk is also a member of staff at the institution, the Clerk is to be treated as a senior post holder for the purposes of article 16(c). (2) Where the Clerk is suspended or dismissed under article 16, that suspension or dismissal shall not affect the position of the Clerk in the separate role of Clerk to the Corporation. 3 How to Make and Appeal 3.1 Time Limits When you are informed of your right to appeal you will be given a time limit within which you must make known in writing that you wish to appeal. You should try to adhere to the time limit but failure to do so will not necessarily result in a refusal to hear an appeal. The time limits are written in other policies such as Disciplinary or Redundancy, you should ensure that you have copies of these policies if they apply to you. As general guidance you normally have ten days to lodge an appeal. 3.2 Who to Appeal To You will need to address your appeal in writing to the Clerk to the Corporation. 3.3 Right to be Accompanied If you are in the situation of considering an appeal you will have already been informed of your right to be accompanied to any meetings connected with the matter. This right allows you to take a colleague or Trade Union representative with you. You are not permitted to have a legal or other professional adviser with you unless the College intends to be legally represented or it agrees otherwise having received such a request in advance. September 2012 Page Ref:POL0006

13 Supporting Information Senior Post Holders 4 Process 4.1 Who Hears the Appeal? The appeal is heard by members of the Corporation. 4.2 Date of the Appeal Hearing The Corporation shall as soon as reasonably practicable after receipt of notification of appeal, invite that person to attend a meeting. This will usually be at least one week but not more than three weeks after the receipt of the request for an appeal. The employee will be given ten days notice of the hearing date. 5 Grounds for Appeal When you write your letter indicating your intention to appeal you should outline briefly the grounds of your appeal. It is important for you to understand that an appeal is not a re-run of the original hearing when the original decision was made. The following list gives examples of grounds for appeal: The Disciplinary or Redundancy Procedure was not correctly followed. You were not given a fair hearing. New evidence has come to light which could have affected the outcome The Principal or Corporation involved in making the decision was biased. Mitigating factors were not taken into account. The disciplinary penalty was inappropriate / inconsistent / too harsh. Unfair application of selection criteria for redundancy. The above list is examples only and is not exclusive. 6 New Evidence If new evidence comes to light after a decision has been taken then it must be made available to both sides immediately and at least a week before the Hearing. If you have new evidence you must not save it until the Appeal Hearing. If you withhold new evidence it may not be allowed to be considered. Equally if the College has new evidence it must be disclosed to you and not produced without warning at the Appeal Hearing. New evidence should be carefully considered at the Appeal Hearing. You must be given an opportunity to comment on any new evidence. Any evidence which emerges during the week prior to the Hearing or during the Hearing itself will only be allowed if it can be demonstrated that it could not have been produced earlier. In such circumstances the person hearing the appeal or the chair should allow an adjournment for the evidence to be considered and a response made. It is important that new information should not be used in a way that would allow the substitution of a different reason for the original decision. September 2012 Page Ref:POL0006

14 Supporting Information Senior Post Holders 7 Conduct of the Hearing The appeal is not a re-run of the original hearing. 7.1 Introduction The person or chair of the committee hearing the appeal will explain to you how the appeal will be conducted, its purpose and the roles of those present. This will include explaining the powers of the Hearing and the need for a note taker. 7.2 Procedures for Hearing There are detailed procedures for those hearing your appeal to follow. If you do not already have a complete copy of this document then you should obtain one from Personnel or the Intranet. You should ensure that you understand how the Hearing will be conducted. If you have a representative then s/he should be able to advise you on such matters. You should not directly approach anyone who is going to hear your appeal but you can ask questions of others involved such as the Clerk to the Corporation who is impartial and experienced in these matters. 7.3 Witnesses The Hearing is a review of the decision and so it is not necessary to call all the witnesses present at the initial hearing. The witnesses need only to be called where the facts are disputed. However witnesses may be called by either party to support the case. 7.4 Outcome You will be notified verbally of the outcome. This may not be immediate as the person or committee hearing the appeal may want time to consider the matter. The decision of the Hearing will be confirmed in writing to you within 5 working days. 8 Date of Termination If you are dismissed and subsequently appeal in line with the college procedure and the dismissal is due to take effect before the hearing, the dismissal will still go ahead. The appeal hearing will take place at its scheduled date. Should the appeal reverse the decision of the dismissal hearing, you will be reinstated and payment at the usual rate will be made for the intervening period. 9 Employment Tribunals If you have followed the College's procedure through then you have no further right of appeal. However you may have recourse to an Employment Tribunal within the statutory limitation period. September 2012 Page Ref:POL0006

15 Meeting Procedure Appendix A Senior Post Holders Not every meeting will be conducted in exactly the same way and will depend on the particular circumstances and nature of the allegations. However, a typical procedure to be followed at an appeal meeting is outlined below: (a) The chair of the meeting will introduce those present, including each person s role in the meeting and will explain the purpose of the meeting. (b) The employee or companion will state the precise nature of the appeal. He/she will then explain his/her case and special circumstances which may exist. (c) Where appropriate, the employee or companion may introduce any witnesses (which will have been notified to the Chair 5 days beforehand). (d) The Chair of the meeting, or committee member, may question any witnesses. (e) Each witness will attend only for his/her own evidence and will with draw once his/her evidence is given. (f) If necessary, the chair of the meeting may call the manager who made the original disciplinary decision in order to ask any relevant questions. (g) The employee or companion may question the manager who made the original disciplinary decision. (h) The manager who made the original disciplinary decision will withdraw. (i) The employee or companion to summarise the appeal, with no new factors to be introduced. (j) After the meeting, the Chair of the meeting (or Committee) will review case before making decision. The Chair of the meeting (or Committee) to take account of the original disciplinary decision and the employee s representations from the appeal meeting. (k) Once that decision is made following the meeting, written confirmation of the decision will be sent to both parties without unreasonable delay. September 2012 Page Ref:POL0006