Disciplinary Procedure HR36 This Procedure Document must be read in conjunction with the accompanying Policy Document Version: V1 V1 issued 1 st July 2014 Document Lead Human Resources Business Partner Lead Director Workforce Director Date issued: 1 st July 2014 Review date: June 2017 Target audience: Trust Employees
Guidance Part 1 Investigation
INVESTIGATION 1. Prior to taking disciplinary action, it will be necessary to investigate the allegation(s). Advice on holding an investigation should be sought from the Workforce team. 2. Management will notify the individual against whom allegations have been made of the name of the investigating officer. Individuals will be informed of concerns or allegations made against them at the earliest opportunity and given sufficient details to enable them to respond. 3. Where the allegation is one of professional misconduct, or where the allegation relates to a professional issue, an appropriately qualified person should be appointed. 4. The role of the investigating officer is to establish the facts of the case and to present these to the commissioning manager. 5. It is the responsibility of the manager commissioning the investigation to determine how the matter is to be progressed, i.e. whether there is a case to answer and thus whether to proceed to a formal disciplinary hearing, whether informal action is required, e.g informal discussion, or whether no further action is required. 6. Where there are justifiable reasons for doing so, an individual may request that an alternative investigating officer is appointed before the investigation is started. Such a request will be considered by the manager commissioning the investigation and may or may not be accommodated. If such a request is refused, the manager will give reasons for this. 7. The employee s personal employment records will be made available to the investigating officer. 8. Any person involved in conducting, or who participates in, the investigation should not be part of a subsequent disciplinary panel but may be required to attend to present the management case or to appear as a witness. 9. When conducting an investigation, all individuals who are interviewed must be offered the opportunity to be accompanied by an accredited trade union or professional organisation representative or by a colleague employed by the Trust. This representative is there to accompany the individual and not to answer questions or to make any statement on their behalf unless the investigating officer agrees to this. Employees are required to attend any meeting arranged in accordance with this procedure. If it is necessary to postpone any meeting then another will be arranged by the Trust. Where an employee fails to attend a meeting without giving reasonable cause notified BEFORE the date, the meeting will go ahead in their absence. The failure to attend may, in itself result in formal disciplinary action being taken. 10. Witnesses employed by the NHS and the employee(s) against whom the allegations have been made will be required to attend investigatory interviews either by letter or by telephone. It is the responsibility of the individual to arrange any representation. 11. In extreme and exceptionally circumstance, determined by the investigating officer, the evidence of a witness employed by the Trust may be anonymised and the witness not be required to attend where this is seen as necessary to protect the witness. 12. The person having allegations made against them and any witnesses are required to provide ALL available information to the investigating officer during the investigation process.
13. In any investigation it is essential that all relevant information and statements are collected and the report compiled as quickly as possible. Relevant information may include local records or written documentation pertinent to the case that should be photocopied for reference as soon as possible when investigating an allegation. All patient references in documents must be anonymised in any investigation report. 14. The employee(s) against whom the allegations have been made should be kept informed in writing by the investigating officer of significant delays. 15. Where the same allegations are made against two or more individuals in relation to the same case, a decision as to whether or not two investigations will be undertaken will be determined by the manager commissioning the investigation, in liaison with the Workforce Department. Where allegations are different for each individual, separate investigatory reports will be compiled. 16. Minor misconduct issues will be resolved informally and should only progress to formal procedures if, after appropriate guidance and support has been given, conduct fails to improve to the required standard 17. All individuals have a right of appeal against any action taken in accordance with the formal stages of the policy 18. The Trust and its employees will maintain confidentiality at all times. Personal data released to the case investigator for the purposes of the investigation will be held securely and its use limited to the matter under investigation. The Trust will operate consistently with the guiding principles of the Data Protection Act. 19. Where formal action is being taken in accordance with this procedure and an individual leaves the employment of the Trust before it has been concluded, then where appropriate, the process will be completed, where required, and a record of the outcome put in writing to them. Completing the process will enable the Trust to make a judgment on whether further action is required, e.g. a referral to the regulatory body or the issue of an alert letter to protect the public. Any finding should also be reflected in any future work or professional reference. 20. Do s and Don ts: Employee to be informed in writing of the reason for the interview and of the initial allegations made (before a formal investigatory interview takes place); Employee given the right to be accompanied by an accredited representative of their recognised trade union or professional organisation or by a colleague employed by the Trust; Employee to make a written statement in respect of the allegation; before any disciplinary hearing, to be advised in writing of the details of any allegation and given the opportunity to prepare and state their case (including a written statement where the employee wishes); to be informed in writing of the outcome of all formal stages of the procedure and of the right of appeal. Prior to any decision being taken as to whether disciplinary action will be taken, it will be necessary to investigate the allegation(s)
Guidance Part 2 Informal Discussion
Informal Discussion In many cases the right word at the right time and in the right way from a manager or supervisor may be all that is needed and will often be a more satisfactory way of dealing with poor conduct or a breach of the rules than resorting to formal disciplinary action. Accordingly, it is expected that supervisors and managers will discuss informally with an employee any shortcomings before taking action under this policy, unless the matters causing concern are of a sufficiently serious nature as to justify formal action. Such informal discussions may take place without prior notice to the individual, on more than one occasion and are not regarded as part of the formal disciplinary policy. Informal discussion does not form part of the formal Disciplinary Policy. Cases of minor misconduct should be resolved through informal discussion, advice or coaching. The aim of such action is to make the employee aware of the areas giving cause for concern, the standards of conduct required and the support available to help them to achieve the required standards. The emphasis will be on agreeing corrective action without recourse to the formal Disciplinary Policy. Managers may also wish to utilise policy HR06 Maintaining High Standards of Performance as part of this action. When an issue of concern is raised, the supervisor or manager should meet with the individual to: inform them of the concerns or allegations; and seek to identify any reasons for the misconduct; and inform them of the standard required and the timescale in which this is to be achieved; and offer any support or training that might be needed. Discussion meetings should involve only the individual and their supervisor or manager, who should make a note of the discussion for the personal file and give a copy to the employee. The note should include details of the corrective action required, the timescale over which improvement must be made and any other actions agreed. Where the matter is sufficiently serious or the Manager has doubts that the employee will be able to achieve the required improvement the Manager should advise the employee that failure to meet the required standards of conduct may result in formal action being taken in accordance with the Disciplinary Policy. This should be recorded in the note of the discussion.
Guidance Part 3 Formal Action
Formal Action Stage 1 First Formal Warning A Stage 1 warning may be given following misconduct or a breach of Trust policy that is not considered sufficiently serious to justify action at a later stage of this policy At this stage, the employee will be informed: that the warning constitutes the first formal stage of the Disciplinary Policy; and that any further misconduct may result in further disciplinary action being taken; and of the standards required and, where relevant, the improvement period in which this is to be achieved/maintained; and of any training or support to be given; and the period of time for which the warning will be live ; and the right of appeal against the warning A Stage 1 warning will be confirmed in writing by the Manager giving the warning within seven calendar days of the hearing. A Stage 1 warning will remain live on an employee s file for a defined period, up to nine months from the date of the letter confirming the decision, following which time the warning will become spent but will remain on the personal file. Stage 2 - Final Formal Warning A Stage 2 warning may be given when the behaviour which was the subject of a current Stage 1 warning or related behaviour is repeated; or where an individual's overall attitude to work results in persistent unrelated breaches of acceptable behaviour which require more serious action than a Stage 1 warning; or following misconduct which is sufficiently serious to warrant Stage 3 action if it were repeated; or in the case of employees in their first year of employment, where conduct or behaviour falls below the required standard, provided appropriate counselling and support has been given. At this stage, the employee will be informed: that the warning constitutes the final formal warning stage of the Disciplinary Policy; and that any further misconduct may result in dismissal; and of the standards required and, where relevant, the improvement period in which this is to be achieved; and any training or support to be given; and the period of time for which the warning will be live ; and of the right of appeal against the warning (see section 12). A Stage 2 warning will be confirmed in writing by the Manager giving the warning within seven calendar days of the hearing. A Stage 2 warning will remain live on an employee s file for a defined period, for up to 18 months from the date of the letter confirming the decision, following which time the warning will become spent. Exceptionally the warning may remain live for a longer defined period e.g. where the conduct was of sufficiently serious a nature as not to be tolerated if repeated. In such cases, this will be confirmed in writing to the employee.
Stage 3 Dismissal Stage 3 action may be taken when: a Stage 2 warning remains live and the misconduct or related behaviour has been repeated or continues; or the employee is considered to have committed an act of gross misconduct or the employee is charged with or convicted of a criminal offence which is considered to be sufficiently serious as to justify dismissal; or a Statutory Bar is imposed on the employee which prevents them from carrying out some or all of their duties; or the employee no longer meets the standards set down for their profession by the relevant Authority; or the employee loses their professional registration (see also HR04 Verification of Professional Registration). If an allegation is upheld at this stage, the normal management action will be to dismiss the employee. Dismissal may be with due notice (i.e. paid notice in accordance with the individual s terms of employment) but in cases where an allegation of gross misconduct is upheld, the outcome will normally be summary dismissal (that is where employment is terminated on the date the sanction is applied, without notice or pay in lieu of notice). In all cases, any outstanding payments in respect of annual leave, agreed time owing, overtime worked, unsocial hours payments etc., due on the date of termination will be paid, normally on the next available pay date. Any decision to dismiss an employee will be confirmed by the dismissing manager in writing within seven calendar days of the hearing, together with the right of appeal against the decision.
Guidance Part 4 Disciplinary Hearing
PROCEDURE AT A DISCIPLINARY HEARING 1. The Disciplinary Hearing Panel 1.1 The disciplinary hearing panel will normally comprise the Chair and a member of the Workforce Team. Where possible, no member of the panel should have had any previous involvement in the investigation. The Chair is: the manager authorised to hear a disciplinary case responsible for determining the composition of the panel (which may include external members); and responsible for deciding what action is to be taken consequent to the hearing. 1.2 Where the case concerns professional conduct, a senior member of that profession should be part of the panel if the Chair is not qualified in that profession. The role of this panel member is to provide professional advice to the panel and to participate in the hearing and decision making process. Where appropriate, this panel member may be external to the Trust. 1.3 The role of the HR representative is to provide support and advice to the Chair (and other members of the panel) and to participate in the hearing and decision-making process. 1.4 Where there are justifiable reasons for doing so, an individual may request that an alternative panel be appointed. Such a request must be made in writing, giving detailed reasons, to the HR representative supporting the panel at least five days before the hearing is due to take place. Such a request will be considered and may or may not be accommodated. Where such a request is refused, the individual will be informed of the reasons. 2. Exchange of Evidence 2.1 Timescales given for the exchange of evidence should be adhered to as far as possible, however, where the case and supporting evidence is complex, the chair of the panel may agree an extended timeframe following discussions with the manager presenting the case at the hearing and the employee or their representative. 2.2 Management should present a copy of their written evidence, together with the names of any witnesses to be called, to the Chair of the panel 2.4 If the individual intends to rely on any written evidence at the hearing which is not already included in the management evidence, this should normally be presented to the Chair of the panel, together with the names of any witnesses to be called, before the hearing. 2.5 It is the responsibility of the chair of the panel to arrange for exchange of documents prior to the hearing 2.6 It is the responsibility of each party to arrange for their witnesses to be present at the hearing. In the absence of a witness, the panel will have discretion as to the weight to be given to any written statement presented as part of the evidence. Department managers will ensure that duty rotas are arranged so that witnesses are available to attend the hearing. Witnesses who are not employees of the NHS will not normally be requested to attend disciplinary hearings. 2.7 It will not normally be acceptable for either party to present their written evidence on the day of the hearing. If written evidence is presented, the hearing may be adjourned to allow time for all parties and the panel to consider this evidence. The party presenting the evidence will be expected to explain to the panel the reasons for it not being available in advance of the hearing. 2.8 The employee s line manager will arrange for their personal file to be made available to the disciplinary hearing panel at the same time as the written evidence for the case.
3. The Process 3.1 The Chair will open the hearing with introductions and will outline the process to be followed. 3.2 Management will present the case against the employee and summarise the findings of the investigation. (The management representative will normally be the Investigating Officer but the overall presentation of the case may be by a senior manager, with the Investigating Officer presenting their findings.) The lead Management representative may be supported in the hearing by a representative from Human Resources. 3.3 Management will then call each management case witness in turn into the room to answer questions, with the first questions being from management. 3.6 The employee or their representative may question each witness. 3.7 The Chair and other members of the hearing panel may question each witness. 3.8 Management may then re-question each witness to clarify any matters that have arisen during the hearing. 3.9 The employee or their representative will present their case. 3.10 The employee will call any witnesses who have not already given evidence to answer questions, with the first questions being from the employee or their representative. 3.11 Management may question each witness. 3.12 The Chair and other members of the hearing panel may question each witness. 3.13 The employee or their representative may then re-question each witness to clarify any matters that have arisen during the hearing. 3.14 Management will sum-up the case against the employee. 3.15 The employee or their representative will sum-up their case. 3.16 The Chair of the hearing will ask any further questions of either party to resolve any outstanding queries or matters that have arisen during the hearing. Where necessary, witnesses may be recalled by the Chair. 3.17 The Chair of the hearing may adjourn the hearing at any time to seek advice or clarification on any matters that remain outstanding, for example if further evidence is required on any issue raised. 3.18 Once all evidence has been presented, the panel will adjourn to consider the information and reach a decision. 3.19 The Chair will reconvene the meeting, calling back the employee and their representative and the Management representative(s) to inform them of the decision. In many cases, the hearing will reconvene on the same day. In other circumstances, the Chair will inform both parties that more time will be required before a decision can be reached. 3.20 On reconvening the panel, the Chair will inform the employee of the decision. Where appropriate, he/she will also inform the employee of the right of appeal. 3.21 In all cases the Chair will confirm the outcome of the hearing and, where relevant, of the right of appeal in writing to the employee, with copies to the employee s representative and to the management representative.
4. Attendance 4.1 Employees are required to attend any disciplinary hearing arranged in accordance with this procedure. If it is necessary to postpone any hearing then another will be arranged by the Trust. Where an employee fails to attend a hearing without reasonable cause notified before the date of the hearing, the hearing will go ahead in their absence and a decision made on the evidence presented. 4.2 Witnesses attending the hearing may be accompanied by their accredited trade union or professional organisation representative or by a colleague employed by the Trust. This representative is there to accompany the individual and not to answer questions or to make any statement on their behalf. It is for the witness to arrange such representation and the hearing will not be delayed by the unavailability of a representative.
Guidance Part 5 Disciplinary Appeal
PROCEDURE AT AN APPEAL HEARING 1. The Appeal Hearing Panel 1.1 The appeal hearing panel will normally comprise the Chair and one member of the Workforce Team. Wherever possible, no member of the panel should have had any previous involvement in the case. The Chair is: the manager authorised to hear an appeal responsible for determining the composition of the panel (which may include external members); and responsible for deciding what action is to be taken consequent to the hearing. 1.2 Where the case concerns professional conduct, a senior member of that profession who has not previously been involved in the case should be part of the panel if the Chair is not qualified in that profession. The role of this panel member is to provide professional advice to the panel and to participate in the hearing and decision making process. Where appropriate, this panel member may be external to the Trust. 1.3 The role of the Workforce representative is to provide support and advice to the Chair (and other members of the panel) and to participate in the hearing and decision-making process. 2. Exchange of Evidence 2.1 Both parties to the case (i.e. the appellant and the management representative) should normally present a copy of their written evidence, together with the names of any witnesses to be called, to the Chair of the panel before the hearing. The appellant will also notify the Chair of the name of the representative who will be presenting their case, if this has not already been done. The Chair of the panel will provide a copy of the evidence and the names of the witnesses who are to attend to the other party and an additional copy for the appellant s representative. 2.2 It is the responsibility of each party to arrange for their witnesses to be present at the hearing. In the absence of a witness the panel will have discretion as to the weight to be given to any written statement presented as part of the evidence. Department managers will ensure that duty rotas are arranged so that witnesses are available to attend the hearing. Witnesses who are not employees of the NHS will not normally be requested to attend disciplinary hearings. 2.3 It will not normally be acceptable for either party to present their written evidence on the day of the hearing. If written evidence is presented, the hearing may be adjourned to allow time for all parties and the panel to consider this evidence. The party presenting the evidence will be expected to explain to the panel the reasons for it not being available in advance of the hearing. 2.4 The evidence presented at the disciplinary hearing and the notes taken at the hearing will be available to the panel hearing the appeal. 2.5 The employee s line manager will arrange for their personal file to be made available to the appeal hearing panel at the same time as the written evidence for the case. 3. The Process 3.1 The Chair will open the hearing with introductions and will outline the process to be followed. 3.4 The appellant or their representative will present their appeal, explaining why they believe the decision taken at the disciplinary hearing was unfair or unreasonable.
3.5 The appellant or their representative may, at this point, present any new evidence that was not available at the disciplinary hearing and explain why the new evidence was not available at the disciplinary hearing. The appeal hearing Chair will then decide whether to continue with the appeal hearing or to remit the case back to the earlier hearing panel or to have the case re-investigated. 3.6 If new witnesses are to be called by the appellant, the appellant or their representative should question them, followed by management and then members of the panel. 3.7 If appropriate, the Chair of the appeal panel may adjourn the hearing to allow new evidence to be properly considered by all parties. 3.8 The appellant or their representative will then sum up/conclude their case. 3.9 Management will then present their response, explaining the basis on which their decision was made, including any mitigation offered by the appellant that was taken into account. The lead management representative may be supported in the appeal hearing by other panel members. 3.10 The management representative may, at this point, respond to any new evidence presented by the appellant, including relevant witnesses. If witnesses are to be called by management, the management representative should question them, followed by the appellant or their representative and then members of the panel. 3.11 The management representative will then sum-up/conclude their case. 3.12 The Chair of the appeal hearing may adjourn the hearing at any time to seek advice or clarification on any matters that remain outstanding, for example if professional advice is sought and no member of the panel is able to provide it or if further evidence is required on any issue raised. 3.13 Once all relevant information has been gathered, the panel will adjourn to consider the information. 3.14 The Chair will reconvene the appeal hearing, calling back the appellant, their representative and the management representative responding to the appeal to inform them of the decision. In many cases, the hearing will reconvene on the same day. In other circumstances, the Chair will inform both parties that more time will be required before a decision can be reached. 3.15 On reconvening the panel, the Chair will inform the appellant of the decision. 3.16 Where the appellant has already left the employment of the Trust, they may be informed of the decision in writing and so may not be recalled to a further meeting. 3.17 The Chair will confirm the outcome of the hearing in writing to the appellant, with copies to the appellant s representative and the management representative 3.18 The decision of the appeal panel is final and concludes the Disciplinary Procedure. 4. Attendance 4.1 Appellants are required to attend any appeal hearing arranged in accordance with this procedure. If it is necessary to postpone any hearing then another will be arranged by the Trust, normally within fourteen calendar days of the original date. Where an appellant fails to attend a hearing without reasonable cause notified before the date of the hearing, the hearing will go ahead in their absence and a decision made on the evidence presented.
4.2 Witnesses attending the hearing may be accompanied by their accredited trade union or professional organisation representative or by a colleague employed by the Trust. This representative is there to accompany the individual and not to answer questions or to make any statement on their behalf. It is for the witness to arrange such representation and the hearing will not be delayed by the unavailability of a representative.