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DISCIPLINARY POLICY AND PROCEDURE

Issue Date: Dec 2012 Page 1 of 22 Issue Version No:10 FINAL Dec 12

DISCIPLINARY POLICY AND PROCEDURE

State whether the document is:

Trust wide

 Business Group  Local

State Document Type:

Policy

Standard Operating Procedure  Guideline

 Protocol

DATE OF APPROVAL / VALIDATION

Policy Review Group – 6.9.12

Joint Consultative Team – Chair approval 25.9.12 Patient Experience & Workforce Assurance Committee – 11.7.12 & 14.11.12

Executive Assurance & Risk Committee - 8.10.12

INTRODUCTION DATE December 2012

DISTRIBUTION Via Trust HR Microsite

Team Brief

HR Update for Managers

REVIEW

Original Issue Date: December 2012

Review Date (If appropriate): December 2014

CONSULTATION

Policy Review Group HR Advisors

Patient Experience & Workforce Assurance Committee

EQUALITY IMPACT ASSESSMENT

 Initial  Full

RELATED APPROVED TRUST DOCUMENTS Trust Grievance Procedure Capability Policy & Procedure

Attendance Management Policy Raising Concerns at Work Policy Code of Conduct

Alcohol & Substance Misuse Policy AUTHOR/FURTHER

INFORMATION

Lucy Mounkley, HR Advisor

Tracey Etchells, Senior HR Business Partner

THIS DOCUMENT REPLACES All previous Disciplinary Policies

Document Change History:

Issue No Page Changes made Date

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DISCIPLINARY POLICY AND PROCEDURE

Issue Date: Dec 2012 Page 2 of 22 Issue Version No:10 FINAL Dec 12

Policy Contents

TABLE OF CONTENTS

Sections Page No

1 Introduction/Purpose of the Policy 3

2 Statement of Intent/Scope of the Policy 3

3 Summary of the Policy 4

4 Definitions 4

5 Roles & Responsibilities 4

6 The Policy 5

7 The Procedure 10

8 Suspension 13

9 Investigation 14

10 Dealing with Sickness during the Disciplinary Process 15

11 Disciplinary Hearing 16

12 Levels of Authority to Take Disciplinary Action 17

13 Witnesses 18

14 Professional Advisors 18

15 Disciplinary Sanctions 18

16 Written Confirmation following a Disciplinary Hearing 19

17 Appeals 19

18 Additional Information 20

19 Deferring Disciplinary Sanctions 20

20 Handling of Counter Claims 20

21 Implementation 20

22 Monitoring 21

Appendices

1 Summary of Time Standards for Operation of the Disciplinary Procedure

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DISCIPLINARY POLICY AND PROCEDURE

Issue Date: Dec 2012 Page 3 of 22 Issue Version No:10 FINAL Dec 12

1. INTRODUCTION/PURPOSE OF THE POLICY

The purpose of the policy is to provide clear guidance for how to deal with any disciplinary or potential disciplinary issues that may arise and to identify areas of responsibility for staff involved. To support employees to achieve and maintain satisfactory behaviour at work. This policy will also ensure that all staff:

Are treated in a correct, fair and consistent manner when subject to disciplinary procedures;

Are aware of what is expected of them. The Trust has developed clear rules that set the standards of work and conduct that it requires from its staff;

Know they have the right to be accompanied by a recognised Trade Union or staff organisation representative, or fellow member of staff, during all stages of the disciplinary procedure;

Are aware of their rights and obligations in respect of disciplinary and appeals processes;

Are advised of the nature of the complaint and are given the opportunity to state their case at every stage in the procedure;

Are aware that disciplinary action will not be taken against an accredited representative of a Trade Union or Professional Organisation until the circumstances have been notified to and discussed with a senior representative or a full time official once consent has been given by the individual.

This policy complies with the ACAS Code of Practice 1 – Disciplinary and Grievance Procedures 2009. Further legislation relating to disciplinaries and grievances in the work place can be found in:

Employment Act 2008;

Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008;

Employment Rights Act 1996 as amended; Employment Rights Dispute Resolution Act 1998; Employment Relations Act 1999;

Employment Rights Act 2004.

2 STATEMENT OF INTENT / SCOPE OF THE POLICY

2.1 This policy applies to all staff employed by Stockport NHS Foundation Trust.

2.2 A failure to follow the requirements of the policy may result in investigation and management action being taken as considered appropriate. This may include formal action in line with the Trust's disciplinary or capability policies and procedures for Trust employees; and other action in relation to other workers, which may result in the termination of an assignment, placement, secondment or honorary arrangement.

2.3 Concerns relating to the clinical competence and capability of medical and dental staff will be dealt with under the Disciplinary Procedure for Medical Staff, Maintaining High Professional Standards.

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2.4 Concerns relating to performance and capability will be dealt with under the Capability Policy 2.5 Disciplinary proceedings will be conducted as swiftly as the circumstances of the case permit

and will be confidential to the parties involved.

2.6 This policy will be reviewed every 24 months to ensure it is in line with current legislation and national guidance to minimise any risk and potential adverse consequences for the Trust.

3 SUMMARY OF THE POLICY

This policy provides a framework for the investigation of a suspected breach of the disciplinary rules, for suspending an employee whilst an investigation is ongoing, the format for a disciplinary hearing, and sanctions or further actions that could be implemented or recommended following an investigation and disciplinary hearing.

4 DEFINITIONS

Disciplinary - enforcing or administering discipline;

Improvement - a change or addition by which something is improved; Dismissal - discharge from employment following a disciplinary hearing; Investigation - a searching inquiry for ascertaining facts; detailed or careful

examination;

Counselling - advice; opinion or instruction given in directing the judgment or conduct of another;

Misconduct - improper conduct; wrong behaviour;

Appeal - a request or reference to some person or authority for a decision, corroboration, judgement, etc;

Suspension - a precautionary measure without prejudice to allow a full and thorough investigation to take place.

5 ROLES & RESPONSIBILITIES 5.1 All Staff

Have a responsibility to ensure that they are aware of Trust documents which are relevant to their area of work and that they act in accordance with these at all times; It is the responsibility of all employees to work with managers and other staff to engender a culture of openness, honesty and respect within the workplace in order to support the provision of high quality services to patients, public and other colleagues; Should take personal responsibility for their own conduct in work;

Are expected to take personal responsibility for changing practice where required improvements have been highlighted and for complying with any advice, coaching and support provided in order to ensure that these standards are met and maintained; Are responsible for adhering to locally agreed standards of behaviour with regards to issues such as dress code, time-keeping and reporting arrangements;

Are encouraged to take personal responsibility for highlighting at the earliest possible event any difficulties they may be experiencing with their day to day duties or concerns they have with their working environment or practices with their line manager, and to discuss working relationships wherever possible with the individual(s) involved or with their line manager, in order to avoid matters escalating into potential conduct issues.

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5.2 Line Managers

Line managers have the responsibility to cascade this information to the staff they manage;

Line managers must ensure that departmental systems are in place to enable all staff including agency staff access to relevant policies, procedures, guidelines and protocols and to remain up to date with the content of new and revised policies, procedures, guidelines and protocols;

Decide on the appropriate sanction;

Seek Human Resources advice as appropriate.

5.3 Human Resources

Human Resources Representative responsible for maintaining consistency of approach;

Provide advice on employment law and matters relating to the interpretation of the procedure, ensuring that it is fairly and properly applied;

Human Resources advice must be sought by managers before implementing any formal disciplinary action, suspension from duty or dismissal;

A Human Resources Representative must be present at Disciplinary Hearings. It is not essential for Human Resources to be present at investigation meetings unless considered appropriate.

5.4 Investigating Officer

The role of the Investigating Officer is to ensure that a full and thorough investigation into the allegations made has been undertaken, the Investigating Officer will usually be someone appropriate from within the Business Group appointed by a senior Manager, however, there may be circumstances where it is appropriate to appoint an Investigating Officer from outside of the Business Group.

6 THE POLICY

6.1 Disciplinary Rules

6.1.1 Every organisation needs to have rules which attempt to ensure acceptable levels of performance and standards of conduct at work. Rules are necessary because they set standards and ensure consistency. The ACAS Code of Practice 2009 and the ACAS Guide – Discipline and Grievances at work state that “Clear rules benefit employees and set standards of conduct. They also help employers to act fairly and consistently”. They “set standards of performance so that employees know what is expected of them.”

6.1.2 All members of staff should be aware of the likely consequence of breaking the disciplinary rules and, in particular, they should be given a clear indication of the type of conduct that may result in disciplinary action being taken against them.

6.1.3 Disciplinary action may be taken for any breach of the following rules which are divided into two main groups Gross Misconduct and Misconduct.

6.1.4 It is unlikely that any set of disciplinary rules could cover all the circumstances which may lead to disciplinary action. The lists below for Gross Misconduct and General Misconduct are not intended to be exclusive or exhaustive, but rather it is indicative of the main disciplinary rules applicable to employees of the Trust.

It is emphasised that there could be other offences/situations not specified in this document which may result in disciplinary action, including dismissal.

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6.1.5 In addition, disciplinary rules applicable to a specific department, disciplines and grades of staff will be issued from time to time.

6.1.6 The disciplinary rules do not prevent the Trust from reporting a member of staff to the appropriate professional body when it is considered necessary, and in such circumstances the member of staff will be notified.

6.1.7 The full range of disciplinary action outlined in the procedure may not be applicable in every case and will depend entirely on the seriousness of the issue. Accordingly, the procedure may be implemented at any stage if the employees alleged misconduct or performance warrants such action.

6.1.8 An employee committing Gross Misconduct may expect to be summarily dismissed.

6.2 Gross Misconduct

6.2.1 Gross Misconduct is defined as any fundamental breach of a rule which has the effect of an irretrievable breach of the employment contract.

6.2.2 These are offences which, for example, affect the relationship between the individual and a manager, colleague, patient, client or member of the public with whom they have contact in the performance of their duties, to such an extent that the employee can no longer reasonably be retained in their post within the organisation.

6.2.3 Breach of any of these rules will normally result in summary dismissal with no entitlement to a notice period or payment in lieu of a notice period.

6.2.4 Certain cases of gross misconduct may be so serious that they justify separate criminal investigation. Whilst the Trust will fully cooperate with criminal investigations, internal procedures will remain separate to the criminal investigation and independent of it.

A decision to involve the Police in any investigation which relates to this procedure will be acted upon only after the appropriate Director and/or Chief Executive have been advised of the circumstances and given authorisation to proceed.

6.2.5 Gross Misconduct Rules:

1. Theft or attempted theft or taking without permission, unlawful possession of property including patients or colleagues property during the course of one’s employment or on the Trust premises;

2. Misappropriation, or attempted misappropriation, of the Trust’s funds or resources; 3. Fraud or other type of dishonesty, including but not exclusive to:

Falsification of any document or system concerned with the recording of hours worked/duties undertaken;

Falsification of any document which makes a financial claim to the Trust, including expenses;

Fraudulent manipulation or falsification of accounts and financial statements; Receipt of bribes;

Working for another employer without authorisation during a period of sickness, study leave or any time allocated as being at work.

4. Serious wilful misrepresentation at the time of appointment including: Declaration of health;

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Previous positions held; Falsification of date of birth;

Failure to disclose a criminal offence in accordance with the Rehabilitation of Offenders Act 1974;

Failure to disclose a relationship to any Board Member or senior officer of the Trust.

5. Serious misrepresentation at any time during employment in connection with qualifications held or other employment information;

6. Falsification / mutilation of official records, including patient records; 7. Disclosure of privileged / confidential information to unauthorised people;

8. Being unfit for work due to the abuse of alcohol, drugs, or other substances self administered which may affect work performance;

9. Being asleep on duty;

10. Malicious or wilful damage to property belonging to the Trust, patients, clients, visitors or staff;

11. Physical or indecent assault or exceptionally offensive behaviour during the course of one’s employment, or on the Trust premises;

12. Behaviour during work or out of working hours and work location resulting in or likely to result in a conviction which affects the employee’s ability to perform his/her duties, particularly when there is an element of trust involved or where there is a perceived risk to patients or other staff;

13. Working while contravening a duty of restriction in force by law; 14. Ill treatment of patients, clients, visitors or staff

15. Sexual offences against patients, clients, visitors or staff; 15. Harassment and bullying of patients, clients, visitors or staff;

16. Failure to comply with the legal requirements and/or Trust regulations concerning drugs;

17. Acceptance of a gift, favour or hospitality which might be interpreted as seeking to exert undue influence to obtain preferential treatment;

18. Unlawful discrimination against patients, clients, visitors or staff;

19. Failure to comply with individual responsibilities imposed by the legislation, e.g. Health and Safety at Work, etc. Acts 1974;

20. Refusal to follow or a serious breach of Trust policies and procedures;

21. Unauthorised use of computers, including illegal copying of software and accessing inappropriate sites;

22. Gross negligence, serious failure, or refusal to achieve an acceptable work performance;

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24. Breach of final written warning due to sickness absence (relevant to Stockport FT Managing attendance policy only);

25 Serious misuse, abuse or lack of proper care of Trust equipment, facilities, funds or resources;

26. Refusal to follow reasonable instructions. However, an employee has a right to refuse to follow an unlawful or unreasonable instruction or an instruction which breaches their professional code of conduct;

27. Failure to follow or a serious breach of rules set out in a statutory or regulatory body Code of Conduct to which the employee is subject;

28. Any act within or outside of the workplace which brings the reputation of the Trust, a profession, colleagues or patients/service users into disrepute not withstanding an employee’s right to raise concerns in line with the Trust’s Raising Concerns at Work Policy. This includes conduct online on social networking sites. Including the following:

Sharing confidential information Post inappropriate comments/pictures

Using social networking sites to bully or intimidate colleagues Pursue a relationship with patient or service users

Distribute sexually explicit material

Use of social networking sites in any way which is unlawful.

29. Inappropriate relationships with patients or service users.

30. Deliberately engaging in employment outside of normal working hours that has a serious negative impact or conflicts with the employees work within the Trust or with the interests of the Trust;

31. No legal entitlement to work in the UK;

32. Loss of statutory qualification essential to meet the requirements of the job, e.g., loss of driving licence or registration;

33. Unauthorised/illegal copying of copyright material;

34. Divulging a password to another person or sharing a SMART card;

35. Inappropriate access to confidential and /or patient data which is not relevant to your job role, e.g. accessing your own confidential and/or medical records or that of colleagues, friends, family or any other individual which is not relevant to your work; 36. Failure of an officer to give notice of any pecuniary interest of which he/she is aware, in

a contract which has been, or proposed to be, entered into by the Trust;

6.3 General Misconduct

6.3.1 General Misconduct refers to unsatisfactory work behaviour, generally as a result of a lack of motivation, negligence or a lack of attention to detail or maintaining a duty of care, which if recurrent could result in dismissal dependant on the circumstances of each case.

6.3.2 Deviations from these general standards of conduct will normally result in a written warning being issued. However, if recurrent or if two or more breaches of the rules take place simultaneously, this may be regarded as gross misconduct, and could lead to dismissal, depending on the circumstances.

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6.3.3 Misconduct/General Disciplinary rules:

1. Failure to follow a lawful and reasonable instruction. An employee has a right to refuse to follow an unlawful instruction or an unreasonable instruction which breaches their professional code of conduct;

2. Failure to observe the appropriate uniform policy; 3. Failure to maintain records required;

4. Verbal assault, use of abusive, objectionable or insulting language or behaviour during the course of one’s employment or on the Trust premises;

5. Personal misconduct of a nature sufficiently serious to affect the employee’s position at work;

6. Unauthorised use of the Trust resources or information gained during the course of one’s employment;

7. Misuse, abuse or lack of proper care of Trust equipment, facilities, funds or resources; 8. Negligence in job performance

9. Unauthorised absence including: persistent lateness, being absent from the workplace during the working day for an unauthorised reason (e.g. absence to attend college/training granted, college/training not attended).

10. Attending for work or any meetings smelling of alcohol;

11. Failure to observe or a serious breach of rules laid down by one’s professional body where applicable;

12. Failure to comply with the requirement of agreed Trust policies and procedures including Health and Safety Policies;

13. Poor attendance as a result of sickness absence, triggering the Trusts Attendance Management Policy sanctions;

14. Failure to comply with the Trusts or departmental notification requirements for sickness absence, annual leave booking or any other types of absence;

15. Engaging in employment outside of normal working hours that has a negative impact or conflicts with the employees work within the Trust or with the interests of the Trust; 16. Failure to maintain essential professional registration;

17. Smoking in an unauthorised area.

6.4 Statutory Regulating Bodies

The Trust has an obligation to report matters of a serious nature to the individual’s statutory regulating body and/or the Independent Safeguarding Authority (ISA) where appropriate. The decision to report will be made by the appropriate Executive Director, Associate Director or delegated Deputy/Assistant Director in writing, to the Regulating Body and the individual concerned will be informed accordingly. Where an allegation is in respect of possible abuse or mistreatment of a vulnerable adult or child, appropriate advice and guidance should be taken from the Human Resources Department and the lead Adult/Child Protection Nurse.

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6.5 Representation

6.5.1 The employee will have the right to be accompanied and/or represented during a disciplinary hearing by a work colleague or Trade Union Representative/Official of a Union recognised by the Trust, and at all stages of the formal procedure.

6.5.2 Full-time Union Officials may exercise the right to attend disciplinary hearings in respect of t heir members, although it would be normal for local Representatives to attend. Local Representatives when subject to formal disciplinary action themselves have the automatic right to a Full Time Officer representation at every stage in the formal procedure.

6.5.3 Where a decision has been taken to suspend an employee from duty with immediate effect the employee will, where possible and practicable, be given the opportunity to have a work colleague or Trade Union Representative/Official present. However, it is acknowledged that this may not always be feasible.

6.6 Trade Union Representatives

Whilst normal disciplinary standards will apply to Staff Representative’s, no formal disciplinary action shall be taken against an accredited Staff Representative until the circumstances of the case have been discussed with the Full Time Officer of the Union concerned, who will have the right to represent the individual at every stage in the procedure. In cases of gross misconduct, involving suspension from duty, the Full Time Officer must be informed at the earliest opportunity.

7 THE PROCEDURE

7.1 Capability

Where issues arise around an employee being incapable of achieving the expected standards of conduct due to a lack of ability, skill or experience, or due to a lack of adequate training and/or supervision, the Capability Policy should be followed before any formal action is instigated.

7.2 Informal Action

7.2.1 Informal Action may be a suitable first course of action. However there will be circumstances where this fails to remedy the issue or it is considered an inappropriate course of action given the nature of the issue. This may then invoke further action in accordance with the Disciplinary Policy.

7.2.2 Managers have the right to discuss problems with staff as part of the day-to-day management process. Informal action with staff on a one to one basis about minor conduct issues should remain the first option to resolve any issues and prevent the situation from escalating leading to more serious action being required.

7.2.3 Informal action should normally be taken unless the offence is repeated or serious enough to warrant immediate recourse to the formal procedure. The action may take the form of informal counselling or an informal meeting to discuss the matter.

7.2.4 The objective of such action is to help the employee improve, by making clear the standards of conduct and behaviour required of the employee and where relevant, provide support in achieving the expected standards of behaviour. During the discussion the manager should: i. ascertain whether there are any mitigating circumstances;

ii. give the employee the opportunity to put their point of view across; iii. establish whether any support and/or training is required.

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By the end of the meeting the following should have been agreed:

What is expected in terms of improving the shortfall between the employee’s conduct and the standard required;

The employees commitment to reaching the required standards;

The agreement of a reasonable period for the employee to improve with an agreed monitoring system in place. This will normally be no more than three months however, this may vary according to the area of poor performance;

What will be the next steps if the standard is not met.

7.2.5 Line managers should retain their own notes of the informal action as they may be relevant if formal disciplinary action is taken at a later stage. It is important that these notes are kept securely and confidentially.

7.2.6 A letter confirming the outcome of such an informal action must be given to the individual concerned by the line manager within 5 working days of the informal action being taken and a copy placed on their personal file.

7.3 Fraud

7.3.1 Where a manager suspects an act of misconduct which involves either theft, fraud or other type of irregularity involving assets of the Trust, including bribery, this suspicion must be reported to the Director of Finance before any other action is taken. They will consider the circumstances and may request Internal Audit to carry out an investigation in line with the Anti Fraud and Corruption Policy, if this is the case it is important that any disciplinary procedures are not commenced until this full investigation has taken place, in order not to prejudice the internal audit investigation. This will result in the Disciplinary Procedure being temporarily postponed until the internal audit investigation has been carried out. Immediate advice should be sought from Human Resources on the procedures to be followed in these circumstances and further advice must be taken from the Counter Fraud Manager (as per LCFS/HR Protocol).

7.3.2 The Trust has a nominated Local Counter Fraud Specialist (LCFS) who is trained to investigate suspected fraud and similar issues committed against the Trust. The nominated LCFS for the Trust can be contacted on 0161 419 4189 or confidential mobile number 07825103901. If an employee suspects fraud then this should be reported to the LCFS. 7.3.3 Should an employee raise concerns to a Line Manager, the Line Manager should make

immediate referral to the LCFS. Under no circumstances should any investigative action be commenced prior to referral to the LCFS. However, the Line Manager must record as many relevant details as possible. All supporting material should be retained safely until handed over to the LCFS.

7.3.4 Should evidence of fraud be discovered, disciplinary proceedings against the employee will commence, which may result in dismissal. Any disciplinary action taken will be considered alongside applications through the civil courts to secure and preserve the proceeds of the fraud.

7.3.5 During Trust disciplinary proceedings involving fraud, the nominated investigating officer should link in with the LCFS during the investigation. It may also be expected that the LCFS be called as a witness at the disciplinary hearing to clarify and substantiate the case for fraud. 7.3.6 Those conducting disciplinary interviews should never make any express or implied promise

that criminal proceedings will not be brought provided an employee answers all questions. Such an approach would prejudice any future prosecution. Any such agreement would be unenforceable and contrary to public policy.

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7.4 Criminal Action

Where an investigation establishes a suspected criminal action in the UK or abroad, this will be reported to the police. The Trust’s investigation will only proceed in respect of those aspects of the case which are not directly related to the police investigation underway. The Trust will consult the police to establish whether an investigation into any other matters would impede their investigation. Immediate advice should be sought from HR on the procedures to be followed in these circumstances.

7.5 Criminal Proceedings

7.5.1 An employee who is charged with a criminal offence must notify their line manager of the charge and the court dates as soon as possible. Following advice of senior managers and Human Resources and where the charge has no bearing on the employee’s duties at work, no disciplinary action will be taken. Where the charge involves a possible risk to patients, staff or the organisation, the individual may be re-deployed or suspended pending further investigation, if appropriate, in line with section 8. Following investigation, if the line manager is satisfied that the risk is non-existent or minimal, the individual may return to either their substantive or a re-deployed post dependant on the circumstances and nature of the criminal charges.

7.5.2 If, following initial investigations, the manager is satisfied that there may be a case to answer which has implications of a risk to patients, staff or the organisation, the process will continue in line with section 9 of the Disciplinary Policy.

7.5.3 In the event that the organisation is notified that an employee has been detained in custody pending committal or has been found guilty of an offence and is serving a custodial sentence, such circumstances will be taken to have a bearing on the employee’s duty to work, no matter what the subject of the criminal charge is. The Trust reserves the right to take disciplinary proceedings without the presence of the employee, having given them, the opportunity to send a representative or to make written submissions.

7.6 Safeguarding

Where the allegations made against the member of staff involve issues surrounding the safeguarding of children and vulnerable adults the Trust has an obligation to refer to the Independent Safeguarding Authority (ISA) who consider whether there is a need to bar from "regulated activities" those considered unsuitable to work with children or vulnerable adults. All appropriate cases must be referred to them and advice should be sought from Human Resources and the Lead Adult/Child Protection Nurse before proceeding with these issues.

8 SUSPENSION

8.1 In cases where gross misconduct is alleged and there are sufficient prima facie reasons and/or substantial evidence to support the allegation an employee may be suspended as a precautionary measure without prejudice on full contractual pay to allow a full and thorough investigation to take place. Alternatives to suspension such as restrictions on practice, relocation or working under the direct supervision of another manager should be considered before making the decision to suspend.

8.2 The decision to suspend will be taken by an Executive Director, Associate Director or delegated Deputy/Assistant Director, or a delegated Senior Manager on duty, normally in consultation with the Human Resources Department.

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However, circumstances may arise for example on night duty, at weekends or periods of leave when the authorised Manager is not available. In these cases the most Senior Manager on duty should make the decision in consultation with the Manager on call/site cover and report it to the Executive Director, Associate Director or delegated Deputy/Assistant Director and the Human Resources Department at the earliest opportunity. 8.3 The suspension will come into effect immediately the employee is informed but they will be

given the opportunity to remove any personal belongings before leaving the Trust’s premises.

8.4 During the period of suspension the employee must not enter either their own workplace or other Trust premises without the written permission of Management, unless attending a medical appointment or pre-arranged meeting. The employee must not discuss the case with colleagues or witnesses. However, if the employee needs to make contact with a colleague or witness in order to assist with their case, then contact may be made through the Human Resources support or the Investigating Officer.

8.5 The suspension will be confirmed in writing within 3 working days by a Senior Manager/Head of Department who will give reasons for the suspension and a date for reviewing the suspension. With the agreement of the employee, a copy of the letter shall be sent to the appropriate staff side Representative. During the course of the investigation the status of the suspension should be reviewed regularly and the individual informed.

8.6 If the alleged offence does not fall within the definitions of “Gross Misconduct” it is unusual to suspend an individual as dismissal is NOT a likely or possible outcome of the disciplinary hearing. It is recognised that this is not always the case.

Similarly if, during the course of an investigation, the Investigating Officer is of the view that a serious breach of discipline may have occurred, suspension may follow.

8.7 Suspension is a precautionary measure to enable the investigation to take place. It is not disciplinary action. Suspension will be on full pay and employees who are suspended will be paid at such a rate that the employee will be neither better nor worse off than if he/she had been at work.

8.8 Staff who are suspended due to a lapse in professional registration or other essential requirements (e.g. legal entitlement to work in the UK) and as such are unable to work will be suspended on no pay until they are registered.

8.9 Whilst on suspension, the employee must inform the Trust of their whereabouts during normal working hours and be available to the Trust if necessary.

8.10 Any pre booked and pre authorised annual leave taken during a period of suspension will continue to be recorded as annual leave. Where an employee wishes to apply for annual leave during a period of suspension they must follow the normal annual leave request procedures. However, the terms of the suspension will continue to apply.

8.11 Employees who submit a self certificate or a GP fitness to work note during a period of suspension will be recorded as absent due to sickness in accordance with the Trust Attendance Management Policy. However, the terms of the suspension will continue to apply.

9 INVESTIGATION

9.1 Where the matter is of a more serious nature or where staff have failed to meet the required standard following informal action it should be recognised that an investigation may need to take place. The purpose of the investigation is to discover all the relevant facts. Part of the investigation may involve the employee attending an investigation meeting.

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9.2 A formal disciplinary hearing should not be arranged until a prima facie case has been established and the matter has been discussed with the Human Resources department. 9.3 Following any informal investigation, whenever there are grounds for believing that

misconduct has occurred, or a complaint has been made against an employee, a full and formal investigation of all the relevant facts must be undertaken.

During the course of the initial investigation further allegations may come to light, therefore it is usual that the investigation will be extended to also investigate these.

9.4 A Senior Manager in consultation with Human Resources will, following discussion with the employee’s line manager appoint an appropriate Investigating Officer. The Investigating Officer will undertake the investigation with support from a Human Resources representative. The Investigating Officer will not normally be the line manager of the employee being investigated, nor should it be someone who would potentially be implicated in the investigation but would generally be someone within the same Business Group wherever possible. In some circumstances it may be appropriate to appoint an Investigating Officer from outside of the Business Group. The Investigating Officer cannot be a member of any subsequent disciplinary panel relating to the investigation. The staff involved (and their Representatives) should be made aware of the Investigating Officer and his/her remit for the investigation.

9.5 No disciplinary action shall be taken against an employee until an internal investigation into the case has been fully completed.

9.6 The purpose of the investigation will be to elicit the facts regarding the alleged misconduct. The use of any recording machines/equipment will not be permitted.

9.7 Employees against whom allegations of misconduct have been made must have at least one opportunity to respond to the allegation as part of the investigation. The employee has the opportunity to be accompanied by a work colleague or by their recognised Trade Union representative at an investigation meeting. A full copy of the Disciplinary Policy and Procedure must be given to the employee.

9.8 Having studied all the evidence and considered any points of mitigation or other explanations the Investigating Officer will decide following discussions with the Human Resources support on the following options:

There is no case to answer and no further action is required;

The outcome does not warrant formal action however further training / informal counselling should be undertaken to support a change in conduct / practice;

The outcome indicates that the unsatisfactory conduct has taken place due to poor performance which should be dealt with in line with the Capability Policy;

That there is a case to answer with regards to the allegations and that the matter should be referred to formal disciplinary hearing.

NB. The Investigation Officer is not required to establish absolute proof of a breach of conduct, only that there is reasonable and justifiable cause for concern which requires further consideration.

9.9 If it is decided that there is a case to answer, the employee(s) should be invited to an outcome meeting and they will be informed of the following:-

a disciplinary hearing is being arranged; the reasons for this;

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their right to Trade Union Representation or to be accompanied by a work place colleague;

the procedure to be followed and possible consequences.

9.10 The Investigating Officer will ensure that within 2 working days of the outcome meeting the allegations are clearly identified and communicated in writing to the employee(s) concerned and inform them of the outcome of the investigation and the course of action that will be taken.

9.11 If there is no case to answer following the outcome of the investigation the Investigating Officer will arrange to meet with the employee with his/her line manager present to explain the findings of the investigation and to discuss/agree any relevant actions as deemed appropriate. The outcome of this meeting will be confirmed in writing to the employee by the Investigating Officer .It should be explained to the member of staff that the outcome letter will remain on the individual’s personal file.

9.12 Where an employee is off sick during an investigation it may be more appropriate that the outcome is confirmed in writing. Advice from Human Resources should be taken in all cases where not holding a meeting to inform of the outcome is being considered.

10 DEALING WITH SICKNESS DURING THE DISCIPLINARY PROCESS

10.1 If an employee reports sick during the disciplinary process, this does not necessarily mean that a disciplinary hearing will be delayed. However, the Trust will take into account the nature of the sickness when considering appropriate timescales and may need to seek advice from the employee’s General Practitioner or the Occupational Health Department. 10.2 In cases where an employee is diagnosed from anxiety or stress due to the investigatory

process / formal proceedings, the date for these meetings will not be moved unless the individual’s General Practitioner or Occupational Health gives a firm and unequivocal written statement that the individual will not be fit to attend the investigation or the disciplinary hearing. Any such hearing may be postponed for a reasonable period only.

10.3 In cases of physical illness such as influenza or a virus, then upon production of satisfactory medical evidence, which may include an assessment by Occupational Health, any such hearing may be postponed for a short while only.

10.4 If no satisfactory medical evidence is produced or following a previous postponement, a hearing date will be set and the individual will be given four options:

to attend the hearing at the date and venue fixed;

to attend the hearing on the date fixed but at a venue away from the site; not to attend the hearing but to send in written representations; and/or

Not to attend the hearing but to send a representative of his or her choice as permitted under the disciplinary hearing to speak on their behalf or to read any statement written by the individual concerned.

11 DISCIPLINARY HEARING

11.1 Where the outcome of the full investigation indicates there is a case to answer a formal disciplinary hearing will be arranged by the Human Resources Department. It is important that the hearing is arranged as soon as possible. However, it is acknowledged that diary commitments may cause some delay.

11.2 The member of staff will be given a minimum of 5 days’ notice in writing of the hearing. This will be done by way of first class mail or hand delivery.

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11.3 The Disciplinary Hearing letter will outline the allegations being made and will be accompanied by the Investigation Report, which will include information gathered during the course of the investigation and will notify the employee of any intention to call witnesses. The letter will advise the employee of the right to be accompanied by a representative such

as a trade union representative recognised by the Trust or a workplace colleague.

The letter will state the time and venue of the meeting and will advise the employee of who will be attending the hearing.

11.4 The letter should advise the employee that the outcome of the hearing may include a range of sanctions up to and including dismissal. A copy of the Disciplinary Procedure will be enclosed with the letter.

11.5 The employee or their Representative will be required to confirm their attendance at the hearing by the date stipulated in the letter, stating whether they will be accompanied by a workplace colleague or Trade Union Representative/Official.

11.6 Prior to the Disciplinary Hearing and by the deadline set out in the formal invitation to the disciplinary hearing letter, the employee must inform the Human Resources Department of who they have chosen as a representative and of any intention to call witnesses and who they are.

11.7 The representative is allowed to address the panel, to put and sum up the employee’s case and confer with the employee during the hearing.

The representative does not, however, have the right to answer questions on the worker’s behalf, address the panel if the employee does not wish it or prevent the employer from explaining their case.

11.8 The employee must submit any documentation they intend to refer to in the hearing at least 3 days prior to the hearing date failure to do may render this information inadmissible at the hearing.

11.9 Any employee subject to disciplinary proceedings, or their representative, has a right of access to all documentation and other information relevant to the proceedings. All parties will co-operate regarding the disclosure and timely provision of documentation and information. 11.10 The employee must take all reasonable steps to attend the hearing. The employee may offer

a reasonable alternative time within 5 days of the original date set if their chosen companion can not attend. Where a hearing is delayed outside of the advised timescales due to the non availability of representative, employees should be requested to seek an alternative representative wherever possible. An alternative date may be arranged by the manager if the employee fails to attend through circumstances outside their control, such as illness.

Where an employee does not or can not attend an arranged disciplinary hearing date one further opportunity to attend should be arranged. Should the employee fail to attend this further opportunity the hearing will go ahead in their absence and an outcome will be decided by the panel based on the evidence available.

In situations where the member of staff is absent on sick leave they will be referred to Occupational Health for a medical opinion on their fitness to attend a disciplinary hearing. 11.11 At the hearing the complaint and all the evidence will be put to the employee who will then

have the opportunity to state his/her case fully and call any witnesses.

11.12 After hearing all the evidence presented the Panel will decide on the appropriate action to be taken. This could be:

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(a) No case to answer and no further action to be taken; (b) Informal action i.e. training, counselling etc;

(c) First written warning; (d) Final written warning; (e) Action short of dismissal; (f) Dismissal.

These can be used in sequence but for more serious issues, the disciplinary procedure can be entered into at any stage.

11.13 The employee will be informed of the Panel’s decision in writing within 3 working days of the meeting if possible. The employee will also be notified of their right to appeal against the decision.

12 LEVELS OF AUTHORITY TO TAKE DISCIPLINARY ACTION

12.1 It is the intention that action is taken within the Business Group and where possible by the Line Manager.

12.2 At a Disciplinary Hearing for allegations of Misconduct an appropriate Manager will hear the case and issue the appropriate Disciplinary Sanctions.

12.3 Where there are allegations of Gross Misconduct or where there is a possibility of dismissal the Disciplinary Hearing should be chaired by a Director/Associate Director of the Trust. There may be occasions where another senior manager will chair the hearing with the delegated responsibility of the Director/Associate Director.

13 WITNESSES

Arrangements for attendance of any witnesses are the responsibility of those requiring them to attend. Prior notification of witnesses to be called must be given to their managers. Witnesses called to attend the hearing must be allowed time off, with pay, and managers will co-operate in ensuring that members of staff called as witnesses are released from their duties at the required time.

The individual who is being investigated may ask the Investigating Officer to pursue a relevant line of enquiry with fellow employees.

14 PROFESSIONAL ADVISORS

Where appropriate, professional advisors may be included as members of disciplinary hearing or appeal panels. Their role would be to provide advice to the panel on matters relating to professional conduct or professional competence.

15 DISCIPLINARY SANCTIONS

15.1 First Written Warning

Misconduct, repetition of minor offences or a failure to respond to counselling usually result in a first written warning being issued. This sanction is also appropriate in circumstances where the employee already has a current informal action for misconduct, or if it is an incident of a serious nature, resulting in significant risk or harm to patients, colleagues or organisational interests. A First Written Warning will be live and remain on the employee’s personal file for a period 12 months.

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15.2 Final Written Warning

A failure to meet the required standards laid out in a first written warning may result in further disciplinary action and a final written warning being issued. A final written warning may also be issued for a first offence where the misconduct is sufficiently serious not to be tolerated a second time for instance in circumstances of a very serious nature, resulting in very significant risk or harm to patients, colleagues or organisational interests, this is usually the case where the offence is classed as Gross misconduct. A final written warning may be issued where multiple cases of general misconduct have occurred.

A Final Written Warning will be live and remain on the employee’s personal file for a period of

12 months. 15.3 Dismissal

If the employee’s conduct and performance continues to be unsatisfactory following a final warning, dismissal will normally result.

Incidents of gross misconduct will normally be subject to summary dismissal with no entitlement to a notice period or payment in lieu of a notice period. The reasons for dismissal will be confirmed in writing by the appropriate Director / Associate Director.

15.4 Actions Short of Dismissal

Actions short of dismissal may be considered in serious cases where the panel considers there are sufficient mitigating circumstances.

Options that can be considered include, downgrading, retraining, and/or transfer to another role plus a final written warning may be considered as an alternative to dismissal.

16 WRITTEN CONFIRMATION FOLLOWING A DISCIPLINARY HEARING

Following a disciplinary hearing a letter stating the nature of the misconduct will be sent to the employee within 3 working days of the decision and a copy will be placed on the personal file for the duration of the warning. After this time the letter will be disregarded for disciplinary purposes, however, if there is persistent misconduct of a similar nature a lapsed warning may be considered when deciding the severity of future sanctions however it may not be used as evidence that an offence has been committed.

The letter will contain:

The nature of the misconduct;

The change in behaviour required with timescale; The length of time the warning will remain current.

The letter will inform the employee that a repetition or other subsequent misconduct may lead to further disciplinary action being taken against them, not excluding dismissal.

The letter will contain the employee’s right of appeal.

A copy of the letter will be kept on the employee’s personal file and in the HR Department.

17 APPEALS

17.1 All employees have the right of appeal against any level of formal disciplinary action. The appeal should be made in writing within 10 calender days of the decision being given and should state clearly the reasons for the appeal. The appeal should be addressed to The Deputy Director of Human Resources, HR Department, Aspen House, Stepping Hill Hospital.

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17.2 Appeals against first written warnings and final warnings will be heard by an appropriate manager not previously involved in the case.

17.3 The appeal against dismissal will be heard by a panel consisting of three people. The panel will comprise one executive director, one non executive director with the third member being an executive director, a non executive director or an associate director not previously involved in the case.

17.4 The hearing of the appeal should take place without unreasonable delay following receipt of the letter of appeal from the employee.

17.5 Employees have a statutory right to be accompanied at appeal hearings by a recognised Trade Union or staff organisation representative, or fellow member of staff

17.6 A Disciplinary Appeal Panel can review any decision taken during a Disciplinary Hearing and issue a different outcome.

17.7 The procedure for hearing appeals against dismissal is detailed in the Guide to Support Manager and Directors through the Trust’s Disciplinary Policy and Procedure.

18 ADDITIONAL INFORMATION

For the purpose of this document days referred to are working days and defined as Monday – Friday, 9.00am – 5.00pm. All Bank Holidays and Statutory days will be excluded from the calculation and all days stated are the maximum. Only in exceptional circumstances and following joint consultation between management side and staff side, can the above timescales be extended.

The date of the hearing will be the date, where applicable, of dismissal, commencement of warning etc.

This procedure does not affect an employees’ right to refer their issue to an Employment Tribunal.

This procedure applies to Doctors and Dentists in respect of personal conduct only. Professional conduct and competence is covered by the provisions of HC (82)13, HM (61)11 and HC (90)9.

19 DEFERRING DISCIPLINARY SANCTIONS

19.1 The purpose of a warning is to allow the employee to have an opportunity to improve their standards of behaviour and conduct at work and not to commit another offence. If an employee is off sick immediately after or soon after, a warning is given (for two weeks or more) such a warning may be deferred until the employee returns to work.

19.2 The line manager will inform the employee in writing of the terms of the deferment either when the warning is issued or in communication with the employee as soon as is possible once they are absent due to sickness or any other period of long term absence .

19.3 This guidance applies equally to periods of maternity leave, special leave and career break.

20 HANDLING OF COUNTER CLAIMS

20.1 Where an employee brings a grievance or a complaint in line with the Bullying and Harassment Policy which may impact on the outcome of an investigation into allegations of

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misconduct, it may be necessary to suspend the investigation until the grievance / complaint has been resolved.

20.2 Where the grievance / complaint and misconduct issues are related it may be appropriate to continue with both processes.

20.3 In both the above instances advice should be sought from Human Resources before proceeding.

21 IMPLEMENTATION

All staff have a responsibility to ensure that they are aware of Trust documents which are relevant to their area of work and that they act in accordance with these at all times.

Line managers have the responsibility to cascade this information to the staff they manage. Line managers must ensure that departmental systems are in place to enable all staff including agency staff access to relevant policies, procedures, guidelines and protocols and to remain up to date with the content of new and revised policies, procedures, guidelines and protocols.

22 MONITORING

The HR Department will review this policy every 24 months to ensure it is in line with current legislation and national guidance to minimise any risk and potential adverse consequences for the Trust.

The HR Department will ensure that monitoring of this policy is undertaken annually and that any action plan is implemented and reported to the authorising group. Monitoring of this policy will consist of an audit review of incidents of non compliance with this policy and development of any subsequent action plan.

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Appendix 1 Summary of Time Standards for Operation of the Disciplinary Procedure

1. Intention to Proceed with Disciplinary Hearing notified to Employee verbally

2. Intention to proceed confirmed in writing Within 2 days of stage 1 3. Chair of Panel / HR Department co-ordinates Dates for

Hearing

Commences within 2 days of stage 1

4. Hearing dates agreed and witness names submitted by All Parties

As soon as possible completed within maximum of 20 days of stage 1

5. Employee notified in writing of Hearing date, including copies of Investigation report and associated information sent to employee.

Minimum of 5 days notice

6. Any employee papers to be referred to at hearing submitted to Human Resources Department including witness names

At least 3 days prior to stage 7

7. Hearing held As arranged

8. Written confirmation of outcome Within 3 days of stage 7

9. Appeal Lodged Within 10 days of stage 8

10 Appeal Availability Dates requested and agreed Within 10 days of stage 9 11. Appeal Date Confirmed in writing Within 3 days of stage 10 12. Management Side and Staff Side cases to be submitted

to the HR department

At least 5 days before Appeal Hearing

13. HR will copy & distribute both cases to panel, management side and staff side

At least 3 days before the Appeal Hearing

14. Appeal Hearing held

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If you would like this document in a different format, e.g. in large print, or on audiotape, or for people with learning disabilities, please contact PCS.

Your local contact for more information is Patient and Customer Services at Poplar Suite, SHH, Tel: 0161 419 5678 or www.stockport.nhs.uk

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