CONTENTS
SECTION PAGE
Introduction 3
Purpose 4
Developing Systemic Change 5
Initial Steps 5
Investigation 6
Criminal Proceedings 6
Allegations of Child Abuse 7
Suspension from Duty 10
The Role of the Headteacher 12
The Role of the School’s Governing Body 13
Disciplinary Warnings 16
Disciplinary Action against the Headteacher 17 Referral to the Independent Safeguarding Authority 18 The Education (Supply of Information) (Wales) Regulations 2009 19
Keeping Records 19
Dismissal of a Member of Staff 19
Resignation of a Member of Staff 20
Sickness of a Member of Staff 20
What if a Grievance is raised during a Disciplinary Matter? 20
Appendices
Appendix 1 – Definitions of Gross Misconduct and Misconduct 22 Appendix 2 – Template for Investigatory Report 24 Appendix 3 – Governing Body Disciplinary Committees:
Terms of Reference 25
Appendix 4 – Procedure for the Disciplinary and Disciplinary
Appeal Hearings 26
Appendix 5 – Disciplinary Warnings 30 Appendix 6 – Summary of the Disciplinary Procedure 31
1 INTRODUCTION
1.1 This paper sets out the main principles to be followed when dealing with staff disciplinary matters. It applies to all school based employees, including Headteachers, whether they are permanent, temporary or full or part – time. The procedure is based on the ACAS Code of Practice and Advisory Handbook. It replaces the previous procedure to reflect the requirements of the: -
Employment Act 2008;
Welsh Assembly Government (WAG) guidance “Staff Disciplinary Procedures in Schools”: Circular 45/2004;
(WAG) Circular No: 018/2009 “Reporting Misconduct and Incompetence in the Education Service”;
The Safeguarding Vulnerable Groups (SVG) Act 2006; All Wales Child Protection Procedures 2008;
Children Act 2004
Working Together to Safeguard Children under the Children Act 2004;
Handling of Allegations of Abuse made against Adults who Work with Children and Young People;
The Education (Supply of Information) (Wales) Regulations 2003; The Education (Supply of Information) (Wales) Regulations 2009; The Government of Maintained Schools (Wales) Regulations 2005;
and
The Staffing of Maintained Schools (Wales) Regulations 2006. 1.2 The procedure will also refer to the Council’s policies on “Equalities”
and “Harassment at Work” and the support mechanisms that are in place to enable staff to bring such complaints forward. It also links into the “Whistle Blowing Policy for School Staff” because everyone working in a setting where there are children present are able to raise concerns about what seems to be poor or unsafe practice by colleagues. Where such issues are raised they must be treated seriously and it is important to note that they may lead to disciplinary action being taken against the colleagues concerned.
1.3 The procedures are written with the presumption that the Headteacher will have the lead role when dealing with disciplinary issues involving other members of staff. There will be occasions, howe ver, when allegations are made against the Headteacher that need to be investigated and answered. In such cases, therefore, the Chair of Governors will undertake the lead role and so where it says in the procedures what the Headteacher will do substitute “Headteacher” for “Chair of Governors.”
2 PURPOSE
2.1 The purpose of this procedure is to enable staff to be effective employees by ensuring that they achieve and maintain the standards of conduct required of them by their school and in line with its visions and values. Where these standards are not achieved this procedure provides a fair, consistent and non – discriminatory way of encouraging improvement without unreasonable delay.
2.2 The main principles behind the procedure are that: -
all staff (teaching and support) should be treated with respect, justice and fairness;
all disciplinary matters and investigations therefrom will be treated in confidence by all parties involved throughout all stages of the process;
all meetings at the various stages of the disciplinary procedure should be arranged as soon as possible within the time limits specified. If the time limits cannot be met for any justifiable reason they can be extended by agreement on both sides;
members of staff should be given at least five working days notice in writing of the time and place of any hearing set up to hear the disciplinary matter or any appeal that may follow;
no action under this procedure will be taken in respect of a member of staff until the case has been fully investigated. This requirement also applies to allegations of child abuse that will be investigated by the independent investigator (see Section 7);
the member of staff will be advised of the nature of the complaint against him/her in advance of a disciplinary hearing and will be given the opportunity to state his/her case and present relevant evidence before any decision is made;
at all stages of the procedure staff have the right to be represented by a work colleague or their trade union. The exception to this will be where a member of staff has been asked to answer a charge of gross misconduct at a disciplinary hearing that could result not only in their dismissal but also the case being referred to the Independent Safeguarding Authority (ISA) because it involves allegations of child abuse. In such cases the member of staff may wish to be represented by their solicitor;
no member of staff will be dismissed for a first breach of standards except in the case of gross misconduct;
the member of staff will have the right to appeal against any sanction imposed within the terms of the procedure; and
no formal disciplinary action shall be taken against a trade union representative until the circumstances of the case have first been discussed with a full – time official of the trade union concerned.
2.3 The procedure is to be used for disciplinary matters concerned with all aspects of employment apart from capability and redundancy for which there are separate procedures in place. For information, the governing body’s “Capability Procedures for Teachers” define “lack of capability” as: -
“performance considered to be less than satisfactory for reasons concerned with skills, knowledge and aptitude.”
3 DEVELOPING SYSTEMIC CHANGE
3.1 The document “Developing Systemic Change” outlines four key processes that should inform everything that we strive to do in education. Whilst all four key processes are important the one that is relevant to these procedures is safeguarding children and young people.
3.2 It is self evident that children and young people cannot learn if they feel unsafe and uncertain about their wider lives. Schools need to ensure that they are doing all that is possible to ensure that all staff work together to make children and young people safe. To do this everyone who works with children and young people must understand their duties, responsibilities and approach to this work. Any failures here may well need to be addressed by these procedures to achieve the desired improvement in staff attitude and behaviour.
4 INITIAL STEPS
4.1 Where an issue is brought to the Headteacher’s attention and it involves an allegation of child protection it must be referred under the All Wales Child Protection Procedures 2008 to the Child Protection Unit (see Section 7).Otherwise staff whose work, conduct or omission give cause for concern should be counselled informally as to the ways in which they may be giving dissatisfaction and given reasonable opportunity to improve their performance. If the Headteacher is satisfied that a formal investigation is appropriate the member of staff must be informed. Except in cases of gross misconduct which will require immediate action, the first occasion on which problems occur should always be dealt with in a manner designed to help the member of staff. In all cases staff should be made clearly aware of the standards required of them and the time – scale by which improvement is sought. Headteachers may find it appropriate at this stage to seek “outside” assistance e.g. local authority (LA) Improvement and Effectiveness Officer (IEO) or Education Human Resource (HR) Officers. Definitions of gross and lesser misconduct are given in Appendix 1.
4.2 If the desired improvement is not achieved, the member of staff needs to be told this and that disciplinary proceedings are being invoked with records being kept of any shortcomings.
4.3 There will be occasions when it is not possible to comply with the time limits given in this procedure, for example, forthcoming school holidays may make it difficult to conduct a disciplinary investigation or hold a hearing. In such cases, arrangements need to be agreed by both parties so that the issue can be taken forward in a sensible manner with a mutually agreed time framework so that everyone will know what is happening and be able to make preparations for. To support this there must be an agreement by both parties that they will not exploit the situation unless it emerges that the matter in question may lead to a child protection investigation.
5 INVESTIGATION
5.1 Except where there is an allegation of child abuse (see Section 7 below) which is likely to result in an allegation of either gross or serious misconduct where the Headteacher receives an allegation of misconduct against a member of sta ff s/he will need to meet with them to inform them of the allegation and that there is likely to be an investigation. The member of staff will be entitled to be represented by a work colleague or their trade union at this initial meeting. If the Headteacher feels that an investigation is appropriate it must be undertaken as quickly as possible and, because the Headteacher may be involved later in the proceedings, a senior member of staff must be asked to lead it unless this is not possible.
5.2 The purpose of the investigation will be to determine: - whether any further action is required;
whether the formal disciplinary procedure should be invoked; and at what level the procedure will be dealt with i.e. Headteacher or
school governors.
6 CRIMINAL PROCEEDINGS
6.1 Where a member of staff is charged with a criminal offence connected to his/her employment the Headteacher, in consultation with the Chair of Governors and Chief Education Officer (CEO), may take disciplinary action against him/her in accordance with this procedure. This may involve suspending the member of staff from duty pending police and/or social services enquiries. Details of when a police and/or social services investigation will take precedence over any school investigation are given in Section (7).
6.2 Where a member of staff is charged with a criminal offence not connected to his/her employment s/he may still be suspended from duty on full pay where appropriate but no further disciplinary action will be taken until the circumstances of the case are made known. A conviction or plea that will lead to a conviction could in most circumstances be construed as gross misconduct but will still need to be dealt with at a formal hearing in accordance with these procedures.
6.3 Where criminal proceedings are pending against a member of staff schools are advised to await the outcome before conducting their own investigation into the matter.
7 ALLEGATIONS OF CHILD ABUSE
7.1 Schools must have in place a reporting mechanism so that where allegations of child abuse occur the matter is immediately brought to the attention of the Headteacher. The All Wales Child Protection Procedures 2008 state that where a school is aware of “concerns” regarding a child this information should be shared with the Council’s Child Protection Unit through a referral. This may include cases of alleged or suspected abuse by an employee in either their private life or in their work capacity where the concern may be raised by the child, the child’s parents or another employee through the school’s “Whistle Blowing” procedures. Any failure by staff to pass on an allegation about child abuse to the appropriate officer may be considered as gross misconduct that if proved could lead to dismissal. The Headteacher should make an initial assessment of, but not investigate, the nature and circumstances of the allegation. This should establish: -
that an allegation has been made; the general nature of the allegation;
when and where the episode(s) is alleged to have occurred; who was involved; and
whether any other persons were present.
7.2 Where it is alleged that a child has suffered or is likely to suffer significant harm there needs to be an immediate referral by the school to the Child Protection Unit. This will involve the police if there is an allegation of criminal behaviour. Where the allegation is of assault beyond the use of “reasonable force” or the child has sustained an injury the matter should be immediately referred to the Child Protection Unit who will convene a Professional Strategy Meeting (PSM) to determine an appropriate course of action. Any investigation by the police or social services takes priority over this disciplinary procedure. 7.3 At any point after being informed about the allegation the Headteacher
may decide to suspend the individual employee in order that the: - child can be afforded protection;
possible risk of harm to children can be evaluated; and
child protection enquiries and/or criminal investigation can be undertaken.
7.4 Where a (PSM) is called all the relevant agencies will be invited to attend including social services, the police and the school concerned. The (PSM) will take account of the preliminary information gathered in the referral and the information provided by the school about the
context and circumstances of the allegation. The (PSM) will gather information from all the relevant agencies so that it can consider and evaluate the risk of harm to the child and/or children concerned and any other children including the employee’s own children. The (PSM) may also advise that consideration should be given to the suspension from duty (see Section 8) of the individual employee where: -
there is cause to suspect that a child is at risk of significant harm; the allegation warrants a criminal investigation by the police; and/or the allegation might be grounds for dismissal
7.5 Where, following the (PSM), it is found that the allegation is demonstrably false there will be no further action under these procedures. The matter should then be dealt with by the school so that consideration can be given to the underlying reasons for a false allegation. The Headteacher should inform the member of staff that no further action will be taken against them.
7.6 There will be occasions, however, where the matter is referred back to the school for it to deal with under the Disciplinary Procedure for School Based Employees because: -
the allegation did not lead to a criminal conviction; and/or
the conclusion of the (PSM) was that whilst there was no child protection issue it is apparent that there is some substance to the allegation.
Independent Investigator
7.7 Where the (PSM) recommends that the matter should be dealt with under the school’s disciplinary procedures the Headteacher and the (LA’s) lead Child Protection Officer with advice from Education (HR) will determine whether the allegation amounts to gross or lesser misconduct (see Appendix 1). Where it is determined that the allegation amounts to gross misconduct or there is some doubt that it is gross misconduct or not the case must be referred to the independent investigator. Where the allegation amounts to lesser misconduct the matter can be dealt with by the Headteacher who has power to award up to a final written warning under this procedure.
7.8 The requirement to appoint an independent investigator came into force on the 1 September 2006 under The Staffing of Maintained Schools (Wales) Regulations 2006 Regulation 7(3). This regulation requires schools to appoint an independent investigator in all cases where there are allegations of child abuse against members of staff that amount to gross misconduct or where there is some doubt that the allegation amounts to gross misconduct. The (WAG) has appointed the independent investigator and it is recommended that schools use this service because where the referral meets the (WAG) criteria it is provided free of charge. If schools wish to make their own
arrangements they will have to pay from their delegated budget. Where schools do make their own arrangements they will need to ensure that the independent investigator is not: -
a governor of the school in question;
a parent of a current or former pupil at the school in question; a current or former member of staff at the school in question; and employed currently by the (LA) that maintains the school in
question.
7.9 The independent investigator will: -
only investigate the allegation referred to them; liaise directly with the Chair of Governors; identify and gather information;
identify and carry out interviews with the interviewees; explore the facts;
produce a report with findings;
attend disciplinary hearings to present the report and be available for cross - examination; and
provide a full Welsh language service. 7.10 The independent investigator will not: -
re – investigate any criminal aspects of a case;
question witnesses or present a case for either party at disciplinary hearings;
comment on outcomes to any judicial investigation; or
investigate any other allegations made known to them during the course of their enquiry.
7.11 The Headteacher, in consultation with the Chair of Governors, will also appoint the independent investigator for all child abuse allegations against members of staff even where allegation(s) result in a criminal prosecution, conviction and custodial sentence. In these cases the role of the independent investigator will be limited to reporting on the outcome of the criminal prosecution to the Chair of Governors unless there are unresolved issues of fact that are possibly relevant to this disciplinary procedure that need investigating.
7.12 Where the investigation by the police and/or social services leads to a criminal conviction dismissal of the member of staff is likely to follow but will still need to be considered at a formal hearing under these procedures.
7.13 The independent investigator will at the request of the Chair of Governors present the findings of his/her report to the Staff Disciplinary and Dismissal Committee (SD&DC) and Staff Disciplinary and Dismissal Appeals Committee (SD&DAC) if s/he is invited to attend by
any of the parties involved . When asked to consider a case the (SD&DC) and (SD&DAC) need to recognise that: -
a higher standard of proof is required for criminal proceedings than for disciplinary proceedings where the test is the “balance of probability.” This means that it is more likely to be the case than not based on the evidence available. It is a lower threshold than “beyond reasonable doubt” which is used in a Court of Law;
disciplinary proceedings may well involve wider issues than those considered by the statutory authorities; and
the general duty of care the governing body has to pupils and others.
7.14 Where the independent investigator has been brought in no action should be taken by the school other than to: -
confirm the membership of the staff disciplinary and dismissal committees to consider the case;
provide the work colleague or trade union that is representing the member of staff with the names of the members of the staff disciplinary and dismissal committees including those of the “non – governors” that will be required to serve on them (see paragraph 10.5); and
ensure that the full governing body has nominated substitutes to these committees or given authority to the Chair of Go vernors to do so should one or more governors be unavailable.
7.15 Education (HR) will provide advice to Headteachers and governing bodies throughout all stages of the disciplinary process. The Council will also provide legal advice to support Education (HR), Headteachers, Chairs of Governors and the Governors’ staff disciplinary and dismissal committees. This will help to re - enforce the message that child protection allegations are serious and need to be dealt with appropriately.
8 SUSPENSION FROM DUTY
8.1 The authority to suspend a member of staff rests with the Headteacher (or Chair of Governors if the allegation is against the Headteacher). Suspension from duty is not an automatic requirement and should only be considered where: -
an allegation has been made which if proven would lead to dismissal or prosecution and where it is considered undesirable for the member of staff to remain in post pending the possibility of disciplinary action;
a child could be placed in danger if the member of staff were not removed from duty; and/or
it is necessary to allow full and proper child protection Section 47 enquiries and/or criminal investigation and the taking of statements for criminal proceedings.
8.2 Suspension from duty should only take place where necessary. It must not be seen as a form of discipline and should only be considered where: -
it appears necessary for the protection of pupils, other staff, property or the orderly conduct of the school;
the continued presence of the member of staff would hinder proper investigation; or
there is no other suitable option.
8.3 Suspension is designed to allow the investigation to continue unfettered by the presence of the member of staff. The member of staff may not see it this way and the suspension interview will need to be handled carefully. The member of staff will be entitled to be represented by a work colleague or their trade union. Suspension will normally be on full pay. Where suspension is felt to be appropriate support mechanisms must be put in place by the school. This will include providing details of the Employee Support Line (01633 254646) and referral to Occupational Health if felt appropriate and in agreement with the member of staff. In addition, and in agreement with the member of staff the school will also nominate a support person who will remain in regular contact with the suspended employee.
8.4 Where a member of staff is suspended from duty the Headteacher should report the matter to the (CEO). Where the allegation is against the Headteacher this responsibility falls to the Chair of Governors who may have to consider suspending the Headteacher. The (CEO) will inform the Strategic Head of (HR) of the suspension of any member of staff employed in a school.
8.5 Suspensions from duty must also be reviewed at regular intervals – at least every two months. Where a member of staff is suspended from duty every effort must be made to ensure that the investigatory process is completed as soon as possible with an appropriate course of action determined. If it is decided that disciplinary action against the member of staff is appropriate then, depending on the severity of the case, the formal interview/hearing with the Headteacher or Governors’ (SD&DC) should be convened as soon as possible.
8.6 The (WAG) guidance “Staff Disciplinary Procedures in Schools: Circular 45/2004” states that only the governing body can decide to lift the suspension of a member of staff. This authority can, however, be delegated to the Chair of Governors with plenary powers.
8.7 In the event of the Headteacher deciding not to suspend a member of staff whilst child protection procedures are progressing s/he will be required to undertake a risk assessment that should be shared at the (PSM) and/or consider the redeployment of the individual employee to a position where s/he has no contact with the child or children who made the allegation.
9 THE ROLE OF THE HEADTEACHER
9.1 The Headteacher will determine whether conduct is of sufficient seriousness to refer the matter to the go verning body. The Headteacher will hold a formal meeting with the member of staff concerned. The member of staff has the right to be accompanied by a work colleague or trade union representative at this formal meeting. A record should be kept of the meeting and the member of staff given full details of the outcome both orally immediately after the meeting and in writing within five working days.
9.2 If the outcome is that there is a need for further investigation the Headteacher will appoint a senior member of staff to do this and provide details of the matters that will be investigated. The senior member of staff will provide a written report on the investigation to the Headteacher who will then determine whether the allegation amounts to gross or lesser misconduct. A template giving some detail of what the investigator’s report should include is provided in Appendix 2. 9.3 Where the allegation amounts to gross misconduct the matter must be
referred to the Governors’ (SD&DC) (see Section 10) who will hold a disciplinary hearing. In doing so the Headteacher should give at least five working days notice of the disciplinary hearing, written details of the problem(s) and the opportunity for the member of staff to be accompanied by a work colleague or their trade union representative. The allegation(s) should be detailed in bullet point format where possible so that the (SD&DC) can make a decision on each point raised.
9.4 Where the allegation amounts to lesser misconduct the Headteacher will hold a disciplinary hearing with the member of staff concerned. In doing so the Headteacher should give at least five working days notice, written details of the problem(s) and the opportunity for the member of staff to be accompanied by a work colleague or their trade union representative. The senior member of staff who investigated the case will present the evidence supporting the allegation and the member of staff concerned will be offered the right to respond. The Headteacher will determine the case and decide upon an appropriate form of warning where required. Depending on the seriousness of the allegation the Headteacher can give up to a final written warning under this procedure. Where any disciplinary warning is given the member of staff will have the right to appeal against it. If the member of staff exercises this right the appeal it will be heard by the (SD&DAC).
9.5 The Headteacher should be aware that if at any time during a disciplinary investigation or during a disciplinary hearing an issue of child protection is raised that has not been raised previously the disciplinary proceedings must be stopped immediately and the case referred to the Child Protection Unit under the All Wales Child Protection Procedures 2008.
10 THE ROLE OF THE SCHOOL’S GOVERNING BODY
10.1 The Headteacher will determine whether the allegation amounts to gross misconduct and should be referred to the (SD&DC). The Chair of Governors should not be a member of this committee or the (SD&DAC) because s/he can: -
support the Headteacher througho ut this difficult process;
help the Headteacher in deciding whether the disciplinary matter should be referred to the (SD&DC);
be the liaison with the independent investigator and receive the report of his/her findings where there has been an allegation of child abuse referred back to the school for it to deal with following a (PSM);
act as a spokesperson for the school should the disciplinary matter attract the attention of the media e.g. “the governing body are dealing with the matter.”;
initiate the appropriate action for governors consideration should the Headteacher fail to do so; and
initiate the appropriate action should the allegation be made against the Headteacher.
10.2 Where the Headteacher refers a disciplinary matter to the (SD&DC) the (CEO) must be notified of the full details of the case. The (CEO) or his/her representative has a right to attend any meeting that might lead to dismissal in schools where the (LA) is the employer. In voluntary aided schools where the governing body is the employer governors are strongly urged to seek advice from the (CEO).
10.3 The role of the (CEO) will be to offer advice and support to the governing body to avoid claims for unfair dismissal. It should be noted that in normal circumstances the Council will bear the costs arising from dismissal including any compensation that may result from unfair dismissal cases. Where the governing body fails to notify the (CEO) or chooses to ignore his/her advice the Council has the power to deduct some or all of the costs from the school’s budget where it has good reason to do so.
10.4 The school’s governing body will have set up a (SD&DC) and a (SD&DAC) at its annual general meeting. It will also have given both committees delegated power to deal with disciplinary issues. The (SD&DC) will hear the disciplinary matter and the (SD&DAC) will
consider any appeal. Each committee will elect a Chairperson and will be clerked by the Governor Support Unit. The terms of reference for both these committees are given in Appendix 3.
10.5 The Staffing of Maintained Schools (Wales) Regulations 2006 state that with effect from 1 April 2006 the (SD&DC) and (SD&DAC) must comprise of not less than three governors. Where, however, they have been asked to deal with allegations made against a member of staff that involve issues of child abuse membership of these committees must comprise of not less than three governors of the school concerned and an independent “non – governor.”
10.6 The “non – governor” member of the two disciplinary committees will have full voting rights but cannot be the Chair. The “non – governor” must not be: -
a governor of the school in question;
a parent of a current or former pupil at the school in question; a current or former member of staff at the school in question; and employed currently by the (LA) that maintains the school in
question.
10.7 The Chairpersons of the (SD&DC) and (SD&DAC) will have a casting vote should there be a “split” decision.
10.8 Whilst it is not illegal it is advised that staff representatives on the governing body should not sit on either of these committees.
Staff Disciplinary and Dismissal Committee (SD&DC) 10.9 The (SD&DC) will consider: -
cases in which the Headteacher is seeking dismissal for gross misconduct or persistent misconduct that has continued after the final written warning stage; and
cases in which the Chair of Governors is seeking to take action short of dismissal or the dismissal of the Headteacher for gross misconduct or persistent misconduct that has continued after the final written warning stage.
10.10 Paragraph (2.2) emphasises the need for time limits to be specified and the requirement that they be followed unless they cannot be met for any justifiable reason. At least five working days before the disciplinary hearing the (SD&DC) should be sent: -
written details of the arrangements for hearing the disciplinary matter;
formal written notice of the disciplinary matter and any supporting documentation such as witness statements; and
written confirmation of the employee’s response to the disciplinary matter with any supporting documentation such as witness statements.
10.11 All evidence that will be used at the hearing is provided in confidence and this must remain so throughout the proceedings. No new material should be introduced in the disciplinary hearing above and beyond that previously issued to the (SD&DC).
10.12 In addition, the (SD&DC) should be notified whether any of the parties involved in the disciplinary matter intend calling witnesses at the disciplinary hearing.
10.13 At no time prior to the disciplinary hearing will members of the (SD&DC) discuss the disciplinary matter.
10.14 At the disciplinary hearing the member of staff may wish to be represented by a work colleague or their trade union (or their solicitor if the complaint involves allegations of child abuse that could result in the case being referred to the (ISA)) and efforts should be made with setting the date and time of the hearing to accommodate such requests.
10.15 The procedure to be used at the disciplinary hearing is attached as Appendix 4.
Staff Disciplinary and Dismissal Appeal Committee (SD&DAC) 10.16 The (SD&DAC) will consider: -
cases in which the (SD&DC) has dismissed a member of staff for gross misconduct or persistent misconduct that has continued after the final written warning stage; and
appeals from members of staff against formal disciplinary action (short of dismissal) taken by either the Headteacher or the (SD&DC).
10.17 Where a member of staff has been dismissed or been given a disciplinary warning by either the Headteacher or (SD&DC) and has been given the right of appeal s/he must notify the Headteacher in writing that s/he intends to appeal within five working days of receiving written confirmation of the decision.
10.18 On receipt of the written request to appeal the decision of the Headteacher or the (SD&DC) the Headteacher will arrange for the (SD&DAC) to hear the disciplinary appeal. The guidance given in paragraphs (10.10 to 10.14) will still apply. The (SD&DAC) will completely re – hear the case unless there is agreement by both parties where, for example, the member of staff who wishes to appeal
asks the appeal panel to consider the following apposite for the grounds of appeal: -
the (SD&DC) or the Headteacher did not consider all the facts of the case;
new evidence has come to light that renders the decision of the (SD&DC) or the Headteacher “unsafe”; or
there are procedural failings in the way the disciplinary procedure has been followed.
10.19 The (SD&DAC) should not impose a more severe penalty than that given by the (SD&DC) but it can: -
confirm the decision of the (SD&DC); impose a lesser penalty; or
conclude that no further action should be taken against the member of staff.
10.20 The procedure to be used at the Disciplinary Appeal Hearing is attached as Appendix 4.
Outcome of the Disciplinary Procedure
10.21 Where the disciplinary procedure involved allegations of child abuse that was referred back to the school for it to deal the Chair of the (PSM) must be informed of the outcome of the disciplinary procedure and the reasons why the school arrived at the decision it made.
11 DISCIPLINARY WARNINGS
11.1 The Headteacher has authority to give up to and including a final written warning. To do this they must first follow the processes outlined in Sections 3, 8 and 9. Depending on the severity of the problem Headteachers should consider the use of warnings according to the following scale: -
oral/verbal warning; first written warning; or final written warning.
11.2 More detail on the nature of these warnings is given in Appendix 5. 11.3 Where an oral/verbal warning is given, the record of the meeting
should be signed by both parties and a copy placed on the member of staff’s personal dossier within five working days. The member of staff is provided with a copy. Where a written warning is given full details must be sent to the member of staff within five working days.
11.4 Depending on the nature of the problem the sequence given in paragraph (11.1) may be followed over a period of time but not necessarily so. Each case must be viewed on the basis of the evidence so that it is possible to issue written or final written warnings for a first offence if warranted.
11.5 All disciplinary warnings shall be recorded on the members of staff’s personal dossier. The limits of time for which warnings are valid are set out below and are operative from the date the warning was given by either the Headteacher or the (SD&DC): -
oral/verbal – three months;
first written warning – six months; and final written warning – twelve months.
11.6 Upon expiry of the time limits the disciplinary warning shall be expunged from the member of staff’s personal record and will not count in determining any future disciplinary action. In certain circumstances, the Headteacher or Chair of Governors may decide that a warning should remain on file for a specified period in excess of twelve months. If so this should not be for more than two years. The member of staff’s personal dossier will be made available for inspection by the employee concerned or their trade union representative if so desired.
11.7 Where members of the support staff are subject to a six month probationary period these procedures need not apply where notice has been given and after consultation with the (CEO).
11.8 Where warnings have been issued to no satisfactory conclusion or in cases of alleged gross misconduct the Headteacher must refer the matter to the (SD&DC) taking care not to prejudice matters by giving details of the case at this initial stage. Before making this decision the Headteacher may wish to consult with officers of Education (HR) who will advise appropriately.
12 DISCIPLINARY ACTION AGAINST THE HEADTEACHER
12.1 Where an allegation of gross misconduct is made against the Headteacher the Chair of Governors should ask the (CEO) or his/her representative to investigate the matter under this procedure unless there are issues of child abuse in the allegation that have been referred back by a (PSM) where, in which case, the matter will be investigated by the independent investigator (see Section 7). On receipt of the (CEO’s) or independent investigator’s report the Chair of Governors will decide whether to refer the matter to the (SD&DC). Presentation of the case against the Headteacher at the disciplinary hearing will be done by the (CEO) or his/her representative. If the charge of gross misconduct is upheld the (SD&DC) will be able to recommend to the (LA) that the Headteacher be dismissed from duty with immediate
effect. The Headteacher will have the right to appeal to the (SD&DAC) against this decision.
12.2 Where the allegation against the Headteacher is one of misconduct the Chair of Governors should ask the (CEO) or his/her representative to investigate the matter and on receipt of his/her report decide whether to refer the matter to the (SD&DC). If the charge of misconduct is upheld the (SD&DC) can give up to a final written warning depending on the seriousness of the misconduct. The Headteacher will have the right to appeal against the decision to the (SD&DAC).
13 REFERRAL TO THE INDEPENDENT SAFEGUARDING AUTHORITY 13.1 The Independent Safeguarding Authority (ISA) was set up under the
(SVG) Act 2006. The (ISA) will: -
maintain two separate but aligned barred lists – one for children and one for vulnerable adults;
make decisions on who should be placed on these lists; and assess information on individual applicants and where it believes
this indicates that the individual poses a risk of harm bar them from working in “regulated activity” (e.g. schools).
13.2 (WAG) Circular 018/2009 “Reporting Misconduct and Incompetence in the Education Service” confirms the (SVG) Act 2006 requirement that from 12 October 2009 where an individual is removed from “regulated activity” employers: -
must refer information to the (ISA) when they have dismissed an individual or an individual resigns because they have harmed or may harm a child or vulnerable adult;
think “relevant conduct” has occurred (the SVG Act 2006 gives a full definition of “relevant conduct”);
consider a risk of harm is present; and/or
have been informed of a relevant caution or conviction.
13.3 The information to be referred to the (ISA) should include any disciplinary matters that would highlight a concern relating to the harm or risk of harm to children or vulnerable adults and other information such as: -
minutes of disciplinary hearings; witness statements;
dismissal/suspension letters; social services records; and
14 THE EDUCATION (SUPPLY OF INFORMATION) (WALES) REGULATIONS 2009
14.1 The Education (Supply of Information) (Wales) Regulations 2009 require employers of teachers registered with the General Teaching Council (Wales) (GTCW) to report cases of misconduct and incompetence to the (GTCW) other than those cases where they are required to provide information to the (ISA). Where a referral is made to the (ISA) the (GTCW) will be informed automatically by the (ISA).
14.2 Employers must make a report to the (GTCW) if they cease to use a registered teacher’s services on a specified ground or if they might have done so had that teacher not already ceased to provide his or her services. The specific grounds are misconduct, professional incompetence and conviction of a relevant offence. A relevant offence is an offence other than one having no material relevance to a person’s fitness to be a registered teacher.
15 KEEPING RECORDS
15.1 A written record should be kept throughout the disciplinary process. The record should include: -
the complaint against the member of staff; the member of staff’s defence;
findings made and actions taken; the reason for actions taken; whether an appeal was lodged; the outcome of the appeal;
any grievances raised during the disciplinary procedure; and subsequent developments.
16 DISMISSAL OF A MEMBER OF STAFF
16.1 Whilst the governing body of a community school has the responsibility to “hire and fire” staff employed to work there the (LA) is still the employer. The governing body, therefore, can only recommend to the (LA) that a member of staff be dismissed from the school following completion of the disciplinary process i.e. after the appeal stage. It is for the (LA) to enact the dismissal.
16.2 Where the school is a voluntary aided school the governing body is the employer of the staff who work there. The governing body, therefore, can enact the decision to dismiss after the (SD&DC) have so decided whilst still giving the member of staff the right to appeal against the decision.
17 RESIGNATION OF A MEMBER OF STAFF
17.1 A member of staff may resign while disciplinary procedures are pending or in progress. Where the allegations relate to gross misconduct and involve issues of child protection the Headteacher must advise the member of staff that the child protection and if required disciplinary procedures will continue to completion. This is necessary to ensure that the (LA) and the school fulfils its obligations under (WAG) Circular 018/2009 “Reporting Misconduct and Incompetence in the Education Service” (see Section 13) and The Education (Supply of Information) (Wales) Regulations 2009 (see Section 14). The school or LEA must not enter into any compromise agreements with the employee.
18 SICKNESS OF A MEMBER OF STAFF
18.1 Where a member of staff is absent through ill health before a disciplinary hearing takes place it is reasonable for the governing body to wait. This may create uncertainty but the decision to proceed can only be taken provided the member of staff is given the opportunity to present their case or have it presented on their behalf. This decision may have to be taken to draw things to a conclusion.
19 WHAT IF A GRIEVANCE IS RAISED DURING A DISCIPLINARY MATTER?
19.1 It is possible that during the disciplinary process the member of staff may raise a grievance that is germane to the case. If this happens the Headteacher should consider suspending the disciplinary procedure for a short period while the grievance is dealt with first.
19.2 Where the disciplinary action contemplated by the Headteacher is dismissal, however, the grievance procedure will not apply because it can be considered as part of the disciplinary process . Where the action taken or contemplated is paid suspension or a warning the grievance procedure and not the disciplinary procedure will apply to any grievance.
19.3 Where the Headteacher, however, takes or is contemplating other disciplinary action short of dismissal and asserts that the reason for the action is conduct or capability related, the grievance procedure does not apply unless the grievance is that the disciplinary action amounts, or would amount, to unlawful discrimination or that the true reason for the disciplinary action is not the reason given by the Headteacher. In such cases the member of staff must have raised a written grievance in accordance with the grievance procedure before presenting any complaint to an employment tribunal about the issue raised by the grievance. If the written grievance is raised before any disciplinary appeal hearing, however, the rest of the grievance procedure does not
have to be followed although the Headteacher may use the appeal hearing to discuss the grievance.
20 SUMMARY OF THE DISCIPLINARY PROCEDURE
APPENDIX 1
DEFINITIONS OF GROSS MISCONDUCT AND MISCONDUCT Gross Misconduct
1.1 Gross misconduct means an act or omission, or a series of acts or omissions that fundamentally repudiates the contract of employment so that the governing body would be justified in no longer tolerating the continued presence at work of the member of staff. These acts may justify summary dismissal without notice or payment in lieu of notice. The list below is neither exclusive nor exhaustive because each case will be determined on the facts but examples of offences normally regarded as gross misconduct are: -
misconduct giving gross offence including acts of indecency; physical, sexual or emotional abuse of pupils;
sexual misconduct at work;
unauthorised possession or theft of property belonging to the LEA, the school, fellow members of staff or pupils;
fraudulent time – keeping, deliberate false recording of attendance or other records, abuse of sick pay regulations or defrauding the school, (LA) or member of the public in the course of official duties; fighting with or threatening behaviour with intent towards another
person;
deliberate and destructive acts harmful to persons or damaging to property;
the receipt of money, goods, favours or excessive hospitality in respect of services rendered or to influence decisions;
serious incapability through alcohol or being under the influence of illegal drugs;
any omission or act of serious negligence which threatens the health and safety of pupils, members of staff and other users of the school site and causes unacceptable loss, damage and/or injury; failure to comply with the schools no smoking policy by smoking on
the school site particularly in the vicinity of flammable substances or in areas where there are identified fire hazards;
unauthorised use of the school’s vehicles, plant, equipment or machinery;
serious acts of insubordination;
serious acts of “offensive, intimidating, malicious, insulting or
humiliating behaviour, abuse of power or authority which attempts to undermine an individual or group of employees and which may
cause them to suffer stress” i.e. bullying;
serious acts of “improper, offensive and humiliating behaviour,
practices or conduct which may threaten a person’s job security, create and intimidating, unwelcome and stressful work environment
any attempt to gain financial advantage by defrauding the school or Council;
abuse of the INTERNET and/or e-mail by transmitting and/or downloading of copyright material, threatening, obscene or libellous material, material protected by trade secrets, illegal activities or any activities which may put the school or Council at risk;
criminal or any other serious misconduct outside the workplace that reflects adversely upon the school and/or the member of staff’s suitability to continue to be employed at the school;
tampering with examination papers or revealing examination papers prior to examinations or altering examination results;
knowingly providing false information on any matter relating the member of staff’s employment with the school;
persistent, serious or flagrant discrimination or harassment on the grounds of age, colour, disability, gender, race, religion, sexual orientation, etc.
failure to disclose knowledge of/suspicion of abuse/neglect/harm of a child/client by another employee(s) of the school or Council in line with the school’s “Whistle blowing” Policy;
a serious breach of confidence; and
serious misuse of a school’s property or name. Misconduct
1.2 Misconduct usually applies where such breaches of discipline do not normally result in dismissal for a first offence but may result in dismissal if repeated. Examples of misconduct may include: -
poor timekeeping;
unauthorised absence e.g. absenting themselves from school without permission;
failure to comply with the school’s sickness absence procedures; refusal to carry out reasonable instruction;
negligence or abuse causing minor injury or damage to property; neglect or unsatisfactory standards in performance of duties; offensive behaviour, insubordination or using abusive language; disclosure of confidential information;
harassment or discrimination on any grounds; victimisation of colleagues, parents or pupils; and
petty theft e.g. making unauthorised private telephone calls or sending personal mail at the school’s expense.
APPENDIX 2 Template for Investigatory Report
Report to: Head Teacher
Subject: Investigation into allegation of ………. by <name of employee and post title>
Report by: <name of investigating officer>
1 Introduction
1.1 Outline the allegations and whom the allegations are made against, i.e. the employee being disciplined.
2 Background
2.1 Information which may be considered necessary, other than the alleged incident(s) themselves. Also detail those who were involved in the investigation and their roles, i.e. witnesses.
3 Sequence of Events
3.1 An outline of events, in chronological order, detailing when the incident(s) happened.
4 Findings
4.1 This will be the main part of the report which will detail what the Investigating Officer has found during the course of the investigation and what the findings are with respect to each allegation made. This section will need to make reference to any attached appendices, i.e. supporting documentation, witness statements, etc.
5 Conclusions
5.1 The conclusions of the Investigating Officer in respect of each of the allegations, i.e. whether they have found on the balance of probabilities that the allegations have been proven and that there is a case to
APPENDIX 3 GOVERNING BODY STAFF DISCIPLINARY COMMITTEES: TERMS OF REFERENCE
1 Introduction
1.1 The governing body is required to set up a (SD&DC) and a (SD&DAC) at its annual general meeting. The (SD&DC) will hear the disciplinary matter and the (SD&DAC) will consider any appeal. At all meetings set up to hear a disciplinary matter or an appeal the member of staff must be offered the right to be represented by a work colleague or their trade union.
2 Terms of Reference
2.1 The terms of reference for both these committees state that they should have at least three governors with a quorum of three. Any eligible member of the governing body may serve as a substitute but where a governor has previously sat on the (SD&DC) s/he will not be eligible to sit on the appeal for this case only. It is preferable that staff representatives on the governing body do not sit on either of these committees although it is recognised that this is not always possible. Where allegations of child abuse against a member of staff are brought back to the school for the governing body to deal with under the
school’s disciplinary procedures a “non – governor” will be added to the composition of each of these committees. The “non – governor” will have full voting rights but is not permitted to Chair either of these committees. Each committee will nominate its own Chairperson who will have a casting vote where there are allegations of child abuse only. 2.2 These committees will act in accordance with the school’s disciplinary
procedure and: -
consider all disciplinary matters brought by the Headteacher; consider disciplinary matters brought by the Chair of Governors
against the Headteacher;
hear appeals brought by staff in “non – dismissal” disciplinary action taken by the Headteacher; and
hear appeals brought by staff who have been dismissed for gross misconduct.
APPENDIX 4 GOVERNORS’ STAFF DISCIPLINARY AND DISMISSAL COMMITTEE
(SD&DC) GENERAL PRINCIPLES: -
The Chair of the (SD&DC) will ensure that: -
the allegations of misconduct are clearly outlined; both parties keep to a sensible time framework;
both parties have the opportunity to state their case, ask questions, present evidence and call witnesses;
sufficient time is devoted to questioning and discussion, using an adjournment if necessary, to ensure so far as is practicable, all the facts are established;
all persons present at the hearing are treated with respect;
the main points are summarised to ensure that nothing has been missed;
the decision is based upon an assessment of all matters raised and can be regarded as the action of a “reasonable employer” having regard to all the circumstances; and
the matters of fact that have been relied on are clearly recorded in order that they can be made available to an appeal hearing.
PROCEDURE FOR DISCIPLINARY HEARING
1 Where there has been an allegation of child abuse and the member of staff concerned is being charged with gross misconduct it is likely that the independent investigator will be invited to attend the disciplinary hearing by one of the parties involved. Where this occurs the independent investigator will present his/her report and then both parties and the governing body will have the opportunity to ask questions of the independent investigator to clarify matters raised in the report. The party that goes first will be the party that invited the independent investigator to attend.
2 The Headteacher to put his/her case in the presence of the member of staff and to call such witnesses as s/he wishes.
3 The member of staff (or his/her representative) to have the opportunity to ask questions of the Headteacher and his/her witnesses.
4 The Headteacher to have the opportunity to re – examine his/her witnesses.
5 The Committee may ask questions of the Headteacher and his/her witnesses.
6 The member of staff (or his/her representative) shall reply to the issue(s) raised, in the presence of the Headteacher and may call witnesses.
7 The Headteacher to have the opportunity to ask questions of the member of staff and his/her witnesses.
8 The member of staff (or his/her representative) to have the opportunity to re – examine his/her witnesses.
9 The Committee may ask questions of the member of staff (or his/her representative) and his/her witnesses.
10 The Headteacher to have the opportunity to sum up his/her case.
11 The member of staff (or his/her representative) to ha ve the opportunity to sum up his/her case.
12 The Headteacher and the member of staff (or his/her representative) and any witnesses to withdraw.
13 The (SD&DC), with the (CEO’s) representative, to deliberate in private only recalling the Headteacher and the member of staff to clear points of uncertainty on evidence already given. If recall is necessary, both parties are to return notwithstanding only one is concerned with the point giving rise to doubt.
14 The (SD&DC) to announce the decision to the parties personally or in writing as may be determined, but in any case, written confirmation is to be sent within seven working days of the hearing.
15 Where the disciplinary matter is found against the member of staff the member of staff must be informed of his/her right to appeal and that this should be submitted to the Headteacher in writing within five working days of written notification of the decision of the (SD&DC).
APPENDIX 4
GOVERNORS’ STAFF DISCIPLINARY AND DISMISSAL APPEAL COMMITTEE (SD&DAC)
GENERAL PRINCIPLES: -
The Chair of the (SD&DAC) will ensure that: -
the allegations of misconduct are clearly outlined; both parties keep to a sensible time framework;
both parties have the opportunity to state their case, ask questions, present evidence and call witnesses;
sufficient time is devoted to questioning and discussion, using an adjournment if necessary, to ensure so far as is practicable, all the facts are established;
all persons present at the hearing are treated with respect;
the main points are summarised to ensure that nothing has been missed;
the decision is based upon an assessment of all matters raised and can be regarded as the action of a “reasonable employer” having regard to all the circumstances; and
the matters of fact that have been relied on are clearly recorded in order that they can be made available to an employment tribunal should the need arise.
PROCEDURE FOR STAFF DISCIPLINARY APPEAL HEARING
1 Where there has been an allegation of child abuse and the member of staff concerned has been dismissed for gross misconduct or given a disciplinary warning for lesser misconduct it is likely that the independent investigator will be invited to attend the disciplinary appeal hearing by one of the parties involved. Where this occurs the independent investigator will present his/her report and then both parties and the governing body will have the opportunity to ask questions of the independent investigator to clarify matters raised in the report. The party that goes first will be the party that invited the independent investigator to attend.
2 The Headteacher to put his/her case in the presence of the member of staff and to call such witnesses as s/he wishes.
3 The member of staff (or his/her representative) to have the opportunity to ask questions of the Headteacher and his/her witnesses.
4 The Headteacher to have the opportunity to re – examine his/her witnesses.
5 The Committee may ask questions of the Headteacher and his/her witnesses.
6 The member of staff (or his/her representative) shall reply to the issue(s) raised, in the presence of the Headteacher and may call witnesses.
7 The Headteacher to have the opportunity to ask questions of the member of staff and his/her witnesses.
8 The member of staff (or his/her representative) to have the opportunity to re – examine his/her witnesses.
9 The Committee may ask questions of the member of staff (or his/her representative) and his/her witnesses.
10 The Headteacher to have the opportunity to sum up his/her case.
11 The member of staff (or his/her representative) to have the opportunity to sum up his/her case.
12 The Headteacher and the member of staff (or his/her representative) and any witnesses to withdraw.
13 The (SD&DAC), with the (CEO’s) representative to deliberate in private only recalling the Headteacher and the member of staff to clear points of uncertainty on evidence already given. If recall is necessary, both parties are to return notwithstanding only one is concerned with the point giving rise to doubt.
14 The (SD&DAC) to announce the decision to the parties personally or in writing as may be determined, but in any case, written confirmation is to be sent within seven working days of the hearing.
N.B. The (SD&DAC) should not impose a more severe penalty than that given by the (SD&DC) but it can: -
confirm the decision of the (SD&DC); impose a lesser penalty; or
conclude that no action should be taken against the staff member.
APPENDIX 5
DISCIPLINARY WARNINGS
Oral/Verbal Warning
1.1 If conduct or attendance does not meet acceptable standards the member of staff will normally be given a formal oral/verbal warning. S/he will be advised of the reason for the warning and that it constitutes disciplinary action. The Headteacher will issue the warning and inform the member of staff that s/he has the right of appeal to the Governors’ (SD&DAC).
First Written Warning
1.2 If the first complaint is a more serious one or if a further complaint is upheld following an oral/verbal warning a written warning may be given to the member of staff. This will give details of the complaint, the improvement required and the time - scale. It will warn that further action will be considered it there is not satisfactory improvement. The Headteacher will issue the warning and inform the member of staff that s/he has the right of appeal to the Governors’ (SD&DAC).
Final Written Warning
1.3 This will apply where conduct or attendance remains unsatisfactory or if the first act of misconduct is so serious but does not warrant dismissal a final written warning may be given to the member of staff. This will give details of the complaint, the improvement required and the time - scale. It will also warn that dismissal will result if there is no satisfactory improvement. The Headteacher will issue the warning and inform the member of staff that s/he has the right of appeal to the Governors’ (SD&DAC).
APPENDIX 6 SUMMARY OF THE DISCIPLINARY PROCESS
Suspension of Member of Staff Police and/or Social Services Investigation Head/Chair receives allegation Allegation of Child Abuse Allegation of Other Type of Misconduct Gross Misconduct Other Misconduct Senior Member of Staff/Chief Education Officer to Investigate Hearing before Head or governors If allegation found to be false the matter ends If substance to allegation If allegation not substantiated the matter ends If allegation substantiated Head or governors give formal warning and member of Staff can appeal
to Staff Disciplinary Appeal Committee. Referred to Professional Strategy Meeting Proceed Court If allegation found to be false the matter ends Matter referred back to school with guidance from (PSM) Head/Chair to decide if matter should be referred to the independent investigator (if child abuse) or Staff Disciplinary Committee (if not
child abuse) Chair appoints Independent Investigator who reports back (SD&DC) hears case If not substantiated the matter ends If substantiated the
member of staff may be dismissed or given a final
written warning. The member of staff can appeal
to the (SD&DAC)
(SD&DAC) to hear appeal - the decision will be final
