Policy No: PP01
Version: 4.0
Name of Policy: Disciplinary Policy
Effective From: 19/03/2015
Date Ratified 02/02/2015
Ratified Human Resources Committee Review Date 01/02/2017
Sponsor Director of Strategy and Performance Expiry Date 01/02/2018
Withdrawn Date
This policy supersedes all previous issues.
Version Control
Version Release Author/Reviewer Ratified by/Authorised
by
Date Changes
(Please identify page no.)
1.0
June 2002 Trust Board April 2002
2.0
06/09/2006 JCC
TPF
05/07/2006 06/09/2006
3.0
23/04/2012 S Duffy HR Committee 07/02/2012
4.0 19/03/2015
S Duffy HR Committee 02/02/2015
Contents Section Page
1 Introduction ... 4
2 Policy scope ... 4
3 Aim of policy ... 5
4 Duties (Roles and responsibilities) ... 5
5 Definitions ... 6
6 Main Body of the policy ... 6
6.1 Principles ... 6
6.2 Counselling ... 7
6.3 Suspension ... 7
6.4 Investigation ... 9
6.5 Conducting a formal Disciplinary Hearing ... 13
6.6 Outcome of Disciplinary Hearing ... 15
6.7 First Level Warning ... 15
6.8 Second Level Warning ... 16
6.9 Final Warning ... 16
6.10 Confirmation Of Disciplinary Sanctions/Warnings Dismissal ... 16
6.11 Dismissal ... 17
6.12 Summary Dismissal ... 18
6.13 Alternative Sanctions ... 18
6.14 Employees resigning from Employment ... 19
6.15 Criminal Offences ... 19
6.16 Appeals ... 20
7 Training ... 21
8 Equality and diversity ... 22
9 Monitoring compliance with the policy ... 22
10 Consultation and review ... 22
11 Implementation of policy (including raising awareness) ... 22
12 References ... 22
13 Associated documentation (policies) ... 23
Appendices Appendix 1 Responsibility for Action ... 24
Appendix 2 Conducting a Counselling Session ... 26
Appendix 3 Suspension – Risk Assessment Form ... 28
Appendix 4 Draft Suspension Letter ... 31
Appendix 5a Investigatory Questions ... 32
Appendix 5b Investigatory Questions ... 33
Appendix 5c Investigatory Questions ... 34
Appendix 6 Suggested Format for Statements ... 35
Appendix 7 Investigatory Report ‐ Matrix ... 36
Appendix 8 Investigatory Report ‐ Template ... 37
Appendix 9 Draft Invite to Disciplinary Hearing Letter ... 43
Appendix 10 Guidelines for Conducting Disciplinary Hearing ... 44
Appendix 11 Disciplinary Hearing Letter ‐ Template ... 45
Disciplinary Policy
1 Introduction
1.1 The Trust expects all employees to perform their duties safely, competently, to be trustworthy and to act honestly. The standards of conduct and behaviour expected of all employees are identified within a range of Trust Policies and procedures, the Trust’s Compact and is also embedded within the Staff Charter and NHS Constitution.
1.2 Where allegations of misconduct or poor performance do arise, these should be handled fairly, consistently and promptly. Some potential disciplinary issues can be resolved informally. Where there is a minor breach of discipline, i.e. where there is a lower standard of performance or conduct than expected of an employee, e.g. lateness for work, however this is not persistent, the Trust would seek to encourage improvement in order to promote and maintain high standards of conduct and performance. However, where such interventions have not achieved the required improvement and minor breaches are persistent, or more serious breaches are alleged to have occurred, the disciplinary procedure should be invoked.
1.3 Throughout the policy, the principles of equality, diversity and human rights, must be observed and the procedure also embraces the ACAS Code of Practice 2009, accompanying guidance and employment legislation.
2 Policy Scope
2.1 The Policy applies to all staff employed by the Trust under a contract of employment (including Foundation Programme medical staff). This Policy does not apply to independent contractors. Any matters of a disciplinary nature relating to specialist registrar or other staff employed by the Lead Employer Trust (who are on placement within Gateshead) will be subject to the relevant disciplinary procedures of the Lead Employer Trust (currently County Durham and Darlington NHS Foundation Trust).
2.2 All Medical and Dental staff employed by the Trust will be subject to this Policy where applicable. There are no longer separate procedures for dealing with personal and professional misconduct. Any issues relating to conduct, performance and health of Medical & Dental staff will be in conjunction with The Restriction of Practice and Exclusion from Work Directions 2003, HSC 2003/012 and the Directions of Disciplinary Procedures 2005, entitled “Maintaining High Professional Standards (MHPS) in the modern NHS; a framework for the initial handling of concerns about Doctors and Dentists in the NHS”. Any serious concerns regarding the conduct or performance of a member of senior medical staff must be initially registered with the Chief Executive or Medical Director who will ensure that a full investigation of all of the facts and circumstances is conducted promptly, effectively and fairly.
2.3 The responsibility for taking disciplinary action against any student/visiting professional lies with the relevant primary employer (which may be a College or University or External Trust or professional body). The Trust will work in partnership with the relevant body in dealing with such matters. Any alleged breach of conduct or performance involving a student should therefore be reported immediately to the appropriate Tutor, who will be responsible for investigating the matter and taking any necessary action.
2.4 This policy does not apply to dismissals due to redundancy, the non‐renewal of fixed term contracts on their expiry, dismissals for SOSR (some other substantial reason), ill health capability.
3 Aim of the Policy
3.1 The aim of this Policy is to set out the appropriate process to be followed to ensure there is a fair, transparent and impartial approach to handling disciplinary matters within the Trust.
3.2 The objectives of this policy are:
• To maintain high standards of conduct and performance across the Trust in order to provide the optimum standard of care to patients.
• To ensure that managers, staff representatives and employees are aware of their rights and obligations in respect of the disciplinary process and appeals mechanisms.
• To ensure uniformity of treatment for all employees • To uphold strict confidentiality at all stages of the process
• To ensure compliance with relevant employment, health and safety and related legislation.
• To ensure staff representatives have every opportunity to represent the interests of their members who may be involved
• To ensure compliance with the ACAS code and accompanying best practice guidance
4 Responsibilities
4.1 Trust Board
The Trust Board is responsible for the compliance of all policies under Care Quality Commission, NHSLA standards and all relevant employment legislation.
4.2 Managers Responsibilities
To apply the disciplinary procedures fairly and consistently and ensure that advice is taken from Personnel staff on disciplinary matters. A matrix of authorised managers and levels of responsibility within this procedure are shown at Appendix 1.
To facilitate, where practicable, the release of staff who are accredited union representatives, who are supporting their members to ensure the disciplinary process is managed in a timely manner.
4.3 Personnel Department Responsibilities
To ensure that the policy and procedures are applied fairly and appropriately, to provide advice, to audit and produce an annual report on the handling of disciplinary matters.
4.4 Staff Side Representatives
To support their members throughout the disciplinary process, offering advice and advocacy to staff.
4.5 Employee Responsibilties
To observe Trust standards, policies and procedures, to comply, where appropriate, with relevant professional codes of conduct and guidance issued in the course of their employment (for example – Care Quality Commission Standards, Control of Infection, Privacy and Dignity requirements).
To maintain and preserve confidentiality throughout the disciplinary process. Breaches of confidentiality may jeopardise the integrity of a disciplinary investigation and if there is evidence that breaches have occurred this may be regarded as potential misconduct.
5 Definitions
5.1 Suspension: Suspension is a precautionary measure and does not in itself constitute disciplinary action. Reasons for suspension may include e.g. protection of patient safety, or allegations of potential gross misconduct.
5.2 Counselling: Not a formal disciplinary measure or sanction – Managers must not make any distinction between formal and informal counselling.
6 Disclinary Policy
6.1 Principles
6.1.1 The Trust will endeavour to maintain strict confidentiality throughout the disciplinary procedure, and expects any employee who is involved in these procedures to do so. However, there may be exceptional circumstances when information is received, which is considered to be of serious concern. This must be disclosed to a senior manager in the organisation e.g. the allegations relate to potential criminal activity, malpractice or present a risk to health and safety to patients or staff. In such circumstances, the need to do so will be discussed with the employee concerned.
6.1.2 Cases of minor misconduct or unsatisfactory performance may be dealt with informally. The purpose of this discussion is to highlight the inappropriate behaviour, giving an employee a chance to respond and where appropriate, encourage a course of action that will achieve the expected standards of conduct/performance.
6.1.3 Any alleged breach of conduct will normally be investigated by either an employee’s Line Manager or appropriate Senior Manager, who will usually present the case at any hearing, but will not be involved in the decision making process.
6.1.4 At all stages of the formal process, an employee has the right to be accompanied by a Trade Union representative or friend not acting in a legal/professional capacity, or a work colleague. In certain circumstances, e.g. as part of an employee’s contract of employment, or in other appropriate cases an employee may be entitled to be accompanied by a legal representative at an internal disciplinary hearing. This is the case for doctors covered by the framework contained within MHPS in the Modern NHS. This provision may apply to other healthcare professionals and a request for a legal representative to attend will be considered in appropriate cases.
6.1.5 All employees and Trade Union representatives will be made aware of and issued with a copy of the Policy during any investigation process.
6.1.6 Employees will be informed of the nature of any alleged misconduct or poor performance, preferably in writing, prior to commencement of any investigation
6.1.7 Employees will be given the opportunity to respond to any allegations normally in person, both during the investigatory stage and any subsequent hearing.
6.1.8 No formal disciplinary investigation or action will be taken against accredited representatives of recognised trade unions or staff organisations until the circumstances of the case(s) have been reported to the manager empowered to take appropriate action. In such circumstances a full time officer of the relevant union/organisation will also be informed, by a member of the Personnel Department.
6.1.9 The policy aims to be non discriminatory and not to discriminate unlawfully on the grounds of any protected characteristics as described in the Equality Act (2010).
6.2 Counselling
6.2.1 Counselling of employees may be a more appropriate method of resolving problems, rather than instigating disciplinary procedures, in cases of minor instances of misconduct in order that concerns may be highlighted at an early stage. For the purposes of this procedure, the term counselling does not relate to or refer to therapeutic counselling. Counselling within this policy aims to bring to an end poor standards of performance or minor shortfalls in conduct without taking disciplinary action.
6.2.2 Counselling is not a formal disciplinary measure or action and managers must not make any distinction during the counselling process, between 'formal' and 'informal' counselling. It must be conducted in accordance with Appendix 2 of the policy.
6.2.3 Where counselling is considered to be appropriate, the immediate supervisor will discuss the matter with the employee and will ensure that the employee is aware of the standards required of them in their role. The manager should also establish whether there are any underlying problems and whether support can be offered. The employee should be made aware of any improvement which is expected over a given period and that continued failure to meet the required standards may result in disciplinary action.
6.2.4 A note of the counselling must be kept on file and should clearly record the nature of the discussion. The employee should be provided with a copy of the counselling documentation and sign the file note as an accurate record and account of the issues. In circumstances where the employee refuses to sign the documentation reasons for refusing to do so must be provided in writing. Both documents will also be held together on the employee’s personal file.
6.3 Suspension
6.3.1 In certain circumstances, it may be deemed necessary by an authorised manager to suspend an employee from duty following an incident or an alleged act of misconduct. Suspension* of an employee is a precautionary measure and does not in itself constitute disciplinary action. Any decision to suspend a member of staff must be discussed with the Head of Personnel or their nominated Deputy.
* ‘exclusion from work’ will be used interchangeably with the phrase suspension, in relation to Medical & Dental Staff in accordance with Maintaining High Professional Standards in the NHS HSC 2003/012.
6.3.2 The authorised manager must consider carefully whether it is appropriate to suspend a member of staff. The reason for suspension may include:‐
• For the protection of patient safety, and to ensure any risk to patients, colleagues, and the employee is minimised
• In order to avoid an investigation being compromised, either through interference or intimidation.
• Where the allegation is considered to be potentially gross misconduct, which may result in the employee’s dismissal from their post.
6.3.3 Alternatives to suspension should be considered and discussed with a senior member of the Personnel Department prior to a decision being made. Alternative action may include:‐
• continuing to work, under close supervision • temporary transfer to another area of work or job • limited duties.
6.3.4 A decision to suspend an employee should be documented on the pro‐forma attached as Appendix 3.
6.3.5 The employee will be informed by the appropriate manager in private, that he or she is being suspended together with the reasons for the suspension. Wherever possible a witness should be present during the suspension process. This will usually be a member of the Personnel department, whose role is neutral and is to observe the process. Where practicable, the employee may be accompanied by a Staff Side representative, however, the suspension cannot be delayed unduly to accommodate this request. The suspension and the reasons for it should be confirmed by a Personnel representative to the employee in writing within 3 calendar days using the letter at Appendix 4. A copy of this letter should be forwarded to the Head of Personnel for information purposes.
6.3.6 In very exceptional circumstances, it may be deemed necessary to conduct a suspension by telephone, however, this should be done following advice from a Senior Personnel Manager and only to avoid undue delay or to prevent the employee from reporting for duty. The suspension must always be confirmed in writing.
6.3.7 If a decision to suspend is taken out of office hours, the “on call” manager will be responsible for the suspension, following consultation with the Director on‐call. The on call manager must inform the Head or Deputy Head of Personnel at the earliest opportunity of their decision to suspend.
6.3.8 Any employee suspended by this Trust, must inform any NHS or other organisation for whom they undertake paid or unpaid duties.
6.3.9 As part of the suspension process, the Trust may decide to notify the relevant professional body or other external organisations. In such cases advice should be sought from a senior member of the Personnel Department and Professional Lead for the Trust (e.g. Director of Nursing & Midwifery).
6.3.10 Whilst on suspension an employee must remain contactable and must be available to attend any investigatory/disciplinary interview during normal office hours unless there are specific circumstances which prevent this. The specific arrangements regarding contactability and availability must be agreed between the employee and the manager at the time of suspension. In addition, the employee should be
advised that, to discuss the alleged disciplinary matter with any colleagues directly involved in the issue other than their representative, may be prejudicial to the investigation and may be deemed unacceptable. These requirements will be contained within the suspension letter and contravention of the terms may be regarded as a further breach of conduct.
6.3.11 Employees should be advised of support facilities available during the suspension. The Occupational Health Department can provide assistance and a therapeutic counselling service is also available. In addition the Chaplaincy Service may be able to provide support during the suspension period. In circumstances where suspension is lifted, employees will be given a letter on return to work setting out back to work advice of what support is available.
6.3.12 During the period of suspension all employees will remain in receipt of full pay. Any suspension should be for a minimum necessary period of time. Where the suspension continues beyond 30 working days, the suspension must be formally reviewed and recorded using Appendix 3.
In the event of suspension from duty being necessary for a longer period of time, the Line Manager must undertake further regular reviews with the outcome reported in writing to the employee and a copy sent to the Director with responsibility for Personnel. A report must also be provided to the Trust Board where the suspension continues beyond 3 calendar months (separate arrangements apply for medical and dental staff). If at any time during the suspension the investigation indicates that either the allegations are without foundation or that further investigation can continue without the employee remaining away from the workplace, the suspension should be lifted. Written confirmation of this decision should be provided to the employee.
6.4 Investigation
6.4.1 General points
6.4.1.1 In certain circumstances a fact finding exercise may be conducted to establish whether or not there is an issue to investigate and to clarify the scope of the allegation(s). This may involve a preliminary discussion with the employees concerned.
6.4.1.2 In order to support the principles of fairness and equity, the role of the investigating manager and disciplining manager should be kept entirely separate.
6.4.1.3 An investigating manager will usually be nominated from within the relevant Division or Department, taking into account a range of factors. Further guidance on who should investigate, their role and the skills required are summarised at Appendix 5a.
6.4.1.4 It may be necessary in certain circumstances, to appoint an investigating manager from another Department or Division, however, the investigating manager should preferably have some knowledge of the service in which the individual is employed. The investigating manager will be supported throughout the investigation by a designated Personnel Manager.
6.4.2 Planning the investigation
General points
6.4.2.1 The employee, against whom allegations are made, must be interviewed by the investigating manager, and provided with a written record of the allegation(s) at the earliest opportunity. This may include witness statements if they are available at this stage. The employee has the right to be accompanied by a Trade Union representative or friend not acting in a professional capacity, or a work colleague
6.4.2.2 Guidance regarding planning and conducting an investigation is set out in Appendix 5b and 5c respectively.
6.4.3 Surveillance
6.4.3.1 It may be considered appropriate, during an investigation of alleged theft or fraud, to use surveillance. Such activities must be authorised by the Regional Fraud Manager of the NHS Counter Fraud and Security Management Service.
6.4.3.2 In all other cases surveillance must be authorised by the Chief Executive or in his or her absence, a designated officer within the Trust.
6.4.3.3 Authorisation must be given prior to surveillance commencing and appropriate records must be retained. The Regulation of Investigatory Powers Act 2000 provides a framework to ensure that such powers are used in accordance with human rights legislation.
6.4.4 Allegations of fraud
6.4.3.1 In cases of alleged fraud, the Director of Finance must be notified, who will determine whether to contact the local Counter Fraud Specialist.
6.4.3.2 The position regarding surveillance in such circumstances is detailed above.
6.4.4 Allegations of Bribery
6.4.4.1 As a public body, the Trust has a legal responsibility under the Bribery Act 2010 to ensure that it uses its funds in a clear and transparent manner for the benefit of the patients and to prevent bribery.
6.4.4.2 All employees are expected to adhere to the Trust’s Business Conduct for Staff Policy PP20 and to seek advice from their line manager if they are unsure about whether to accept any hospitality/gifts which are offered.
6.4.4.3 Concerns or allegations involving bribery or corruption, must be reported to the Local Counter Fraud Officer in the first instance, or alternatively via the Trust’s Raising Concerns at Work Policy PP34 or via the NHS Fraud and Corruption Line.
NOTE: In cases involving allegations of fraud, bribery or corruption the Local Counter Fraud Officer would normally oversee an initial investigation. Following this, the Local Counter Fraud Specialist will liaise with the Director of Finance and Head of Personnel and will agree the allegations should be referred to the police or any other body for investigation or action, or dealt with in accordance with the Trust’s Disciplinary procedures.
6.4.5 Allegations/Issues relating to Child Protection/Vulnerable Adults
6.4.5.1 Where an allegation is made relating to a safeguarding issue, whether this is in the domestic environment or the workplace, the matter must be reported immediately to the Head of Personnel, or nominated deputy, or the relevant designated Trust safeguarding leads.
6.4.5.2 Where there are substantiated concerns and/or disciplinary action regarding child protection or vulnerable adult issues, the Trust is required to notify the ISA and where relevant, the employee’s professional body.
6.4.6 Non attendance at investigatory meetings
6.4.6.1 Relevant staff who were witness to or involved in the alleged incident/misconduct will be interviewed. The list of witnesses may expand during the course of the investigation, and if witnesses are suggested but not interviewed the investigating officer should provide reason for this decision.
6.4.6.2 Investigatory meetings must be arranged promptly, and only deferred/postponed where the employee is deemed unfit by Occupational Health to attend an investigatory meeting or an employee’s representative is unavailable. Where a staff representative is unavailable to attend the first scheduled meeting, an alternative date must be agreed within 5 working days of the original meeting date. If an alternative date is not agreed, then the investigation will proceed without the attendance of either the employee or their representative.
6.4.6.4 Other, exceptional circumstances may include;
• the employee is in police custody or potential criminal action becomes apparent. The Trust has certain obligations to inform the Police, however, this must be discussed with a senior member of the Personnel Department who will refer the matter to the relevant Executive Director. In such circumstances, this does not preclude disciplinary procedures being followed, however, this should be conducted in consultation with the Police to ensure that the internal investigation does not prejudice the Police investigation.
• the employee is on long term sick leave or subsequently submits a Fit Note during the period of suspension an assessment by the Occupational Health Department will be required to ascertain whether the employee is medically fit to attend any investigatory or disciplinary meetings. N.B. Employees who
submit Fit Notes during a period of suspension will remain suspended from duty.
• The employee/witnesses believe that by failing to co‐operate that the investigation will not proceed. It is important to make clear that failure to participate may result in the investigating officer reaching a conclusion only on the basis of the information available to them at the time of the decision and without the benefit of the individual’s account or response to the allegation. It is essential to document any discussions or communication regarding this matter and to confirm the individual’s decision in writing.
• Staff may be anxious about the consequences or potential reprisals of participating in an investigation, especially if the investigation centres on allegations of bullying or harassment. Or it may be that an individual feels they are too embarrassed to disclose details of the allegations.
6.4.6.4 Individuals should be given reassurance regarding the confidentiality of the investigation, the likely recipients of the report and how the organisation will seek to protect and support them.
6.4.6.5 Individuals should be reminded that participation is regarded as a reasonable management request and by refusing to participate without justifiable reason, their refusal may lead to disciplinary action.
6.4.7 Written statements and the issue of anonymity
6.4.7.1 Employees who are the subject of an investigation have the right to know the allegations made against them, therefore any factual information/statements should be provided to them at the earliest opportunity.
6.4.7.2 Statements will normally be in writing and witnesses may be called to provide oral evidence at a disciplinary hearing. Statements must be accurate and factual, must be dated and signed by the individual. A witness supplying a statement should be informed that it may be shared with the employee under investigation, and that they may be required to attend any subsequent disciplinary hearing if asked to do so. A suggested template for a witness statement is available as Appendix 6.
6.4.7.3 It is far from ideal for witness statements to be anonymous, and this should only be considered in extreme or exceptional circumstances. It is possible to proceed, where there is a real concern of reprisal or intimidation, however, certain guidelines must be followed as set out in case law i.e. Linfood Cash and Carry Ltd v Thomson and ors. Where there is a request for anonymity, the following factors should be considered;
• The seriousness of the allegation
• Is there any other corroborative evidence?
• Is the witness’s fear genuinely sufficient to justify proceeding without divulging their identity?
6.4.8 Concluding the investigation
6.4.8.1 The investigation should be completed as timely as possible, and in normal circumstances no longer than 30 working days (a working week being 5 calendar days) from the date of the initial investigatory interview. Only in very exceptional circumstances, should this timescale be extended.
6.4.8.2 Careful and thorough evaluation of statements and relevant documentation gathered during the investigation is essential. A matrix shown at Appendix 7 should be used to assist the investigating officer determine whether;
• there is direct witness evidence/facts regarding the alleged incident/misconduct
• there is inconsistent/contradictory witness evidence/ facts regarding the alleged incident/misconduct
• there is no conclusive evidence/facts regarding the alleged incident/misconduct.
6.4.8.3 Once the investigation is completed, the investigating officer will submit a written report to the Disciplining Manager. This report, which should include the employee’s statement and any witness statements, gives a brief factual summary of the investigation together with a recommendation on whether there appears to be a case to answer or that no further action be taken. Appendix 8 provides a suggested template for this report.
6.4.8.4 Following the investigation and on the basis of the information presented, the Disciplining Manager will determine whether:
• there is no substance to the allegation and therefore no further action is necessary; or
• the allegation is of minor importance and can be dealt with by counselling ; or
• the allegation appears to be well‐founded and a disciplinary hearing should be convened in line with the procedure set out in this document.
6.5 Procedure for the Conduct of a Formal Disciplinary Hearing
6.5.1 When an employee’s alleged conduct, performance, alleged act or omission, is considered to be sufficiently serious to warrant consideration within a formal disciplinary hearing, the following procedure should apply;
• The authorised disciplining manager should convene a hearing, confirming to the employee, in writing, the specific allegations(s) to be considered at the hearing. (Appendix 9 contains a template letter). This notification should give the employee sufficient information/evidence relevant to the alleged misconduct or poor performance in order to prepare and present their response to the case at the hearing. If written statements have not
been provided to the employee, these should be supplied at the time of notification of the hearing.
• The employee should be given 10 calendar days notice of the hearing to enable them to discuss the matter with, and arrange for appropriate representation at the hearing. The employee must be advised of their right to be accompanied, by an accredited representative of a recognised trade union/staff organisation, colleague or friend not acting in a legal/professional capacity who is not directly involved in the investigation or legal representative if appropriate.
• The employee will be required to confirm whether he/she is to be accompanied, details of any representative and of any witnesses he or she intends to call during the hearing.
• The employee will be also be notified that the disciplinary panel will have the full range of sanctions available to it as part of the hearing process, up to and including dismissal.
• The employee will be provided with the Management Statement of Case 7 calendar days prior to the disciplinary hearing. If the employee wishes to rely upon written statements/information within the hearing, they will be required to submit the relevant documentation to the disciplining manager no later than 3 calendar days prior to the hearing. If the documentation is not submitted within this timeframe, it will not be accepted.
• In circumstances where the employee reports sick prior to, or on the day of, or is deemed to be unfit to attend the hearing, it may be appropriate in exceptional circumstances to adjourn the hearing. However, advice should be taken from Occupational Health to determine the employee’s fitness to attend a disciplinary hearing. Alternatively, in exceptional circumstances the employee may agree to be represented by another colleague and his or her Trade Union representative or be asked to submit his or her response in writing, which will be considered in absentia.
• At the hearing, the Disciplining Manager should outline to all parties the format of the meeting and must ensure that the proceedings are undertaken impartially and confidentially
• A member of the Personnel Department must be present at the disciplinary hearing and will provide advice to the Disciplining Manager or panel on matters of procedure and to record the proceedings. It is usual practice that another personnel representative accompanies the manager presenting the Management Statement of Case.
• In proceedings relating to professional staff, the personnel manager supporting the panel must ensure that relevant professional guidance and advice is sought in order to ensure that they are suitably informed and advised of the relevant issues.
• At the hearing, the alleged unsatisfactory conduct or performance should be outlined by the Investigating Officer and the individual must be given the opportunity to respond and state his or her case. The disciplining manager is required to listen carefully to, consider and reflect on all of the
evidence presented by both sides. In the event of any discrepancies in the evidence presented, the disciplining manager will take his or her decision on the balance of probabilities and not on the basis of ‘beyond reasonable doubt’.
• If more time is needed to consider the matter or new facts emerge which require further investigation, the hearing may be adjourned. During the hearing either party may request an adjournment.
• As part of the proceedings, the Personnel Department representative attending the hearing will verify the current address of the employee concerned and agree with the employee the process for ensuring receipt of the letter summarising the outcome of the hearing.
• The panel should ensure it is authorised to issue an appropriate sanction when appropriate and where this is not the case, any delegated authority must be formally documented.
• Guidelines for Conducting a Disciplinary Hearing are shown as Appendix 10
6.6 Outcome of Disciplinary Hearing
6.6.1 If, following a disciplinary hearing the panel is satisfied that there is no case to answer, the individual will be notified of this at the hearing if possible, and in writing within two working days of the hearing.
6.6.2 Where a disciplinary sanction is imposed, the level of sanction will be determined by considering a range of factors and the circumstances of each case. The disciplinary panel will have the full range of sanctions available to it as part of the decision‐ making process and may issue a higher level sanction, without recourse to previous warnings where the matter is of a serious nature.
6.6.3 It is not expected that an employee will be dismissed following a first breach of misconduct or without previous warnings, except in the case of gross misconduct or for some other substantial reason.
6.6.4 The levels of disciplinary sanctions which may be imposed following a disciplinary hearing are as follows:
6.7 First Level Warning
6.7.1 Where an employee’s performance and/or conduct is considered to be unsatisfactory and of a minor nature, the individual concerned should be given a first level warning.
6.7.2 A first level warning will remain live for a period of 12 months and would be appropriate for example in cases of bad timekeeping, performance below standard, or failure to carry out reasonable instructions adequately. Employees must be able to demonstrate satisfactory service during the period of the warning. However, this does not preclude more serious or lesser action being taken once the particular circumstances of the case are taken into account.
6.8 Second Level Warning
6.8.1 If, following the disciplinary hearing, the disciplining manager is satisfied that either:
• there has been a recurrence of misconduct, or
• an employee’s performance has not improved following a first level warning within the period of that warning, or
• the misconduct or poor performance is of a more serious nature
a second level warning should be given. A second level warning may be given for a minimum of 12 months or a maximum of 24 months, depending upon the circumstances of the case.
6.8.2 A second level warning will be appropriate without recourse to the preceding stage in cases, for example (and without limitation), of misuse or unauthorised use of Trust property, unexplained absence from work or failure to carry out reasonable instructions. Employees must demonstrate satisfactory service during the period of the warning. This does not preclude more serious or lesser action being taken in relation to these breaches of conduct or performances once the particular circumstances of the case are taken into account.
6.9 Final Warning
6.9.1 If, following a disciplinary hearing the disciplining manager is satisfied that either:
• there has been a recurrence of misconduct, or
• an employee’s performance has not improved following a second level warning within the period of that warning, or
• the misconduct or poor performance is of a more serious nature
a final warning should be given. A final warning will remain live for a period of 24 months. In exceptional circumstances, this period may be extended.
6.9.2 A final warning will be appropriate without recourse to the preceding stages in cases, for example, of wilful misuse of equipment or refusal to carry out reasonable instructions or in some circumstances in which there is an unauthorised disclosure. Employees must demonstrate satisfactory service during the period of the warning This does not preclude more serious or lesser action being taken in relation to these breaches of conduct or performances once the particular circumstances of the case are taken into account.
6.10 Confirmation of Disciplinary Sanctions/Warnings
6.10.1 Following a disciplinary hearing an employee (regardless of the level of warning) will receive a letter including:
• an explanation of the level of warning, which will be entered on the employee’s record
• details of the improvement required, how this can be made, within what timescale and what review arrangements will be implemented. They will also be advised that if there is no improvement further disciplinary action will follow.
• Confirmation that, after the relevant period of satisfactory service has been achieved, (see para. 6.10.2) the warning and all associated documentation will be disregarded for future disciplinary purposes. All relevant paperwork will be enclosed in a sealed envelope and retained within the personal file marked appropriately and signed by the relevant Personnel Department representative.
• An outline of the right of appeal, which will be to the next level of authority within the Trust, within 14 calendar days of receipt of the warning letter. • Where appropriate, confirmation that the terms of their suspension are
lifted and arrangements outlined for return to work.
6.10.2 Substantial Absence of Employee during existence of Disciplinary Warnings
An employee with a live disciplinary warning who is absent from work e.g. sickness, maternity, career break, authorised/unauthorised absence) for a period of four weeks or more will have the equivalent length of absence during the live warning period added to the expiry date of the warning.
This arrangement will not apply during periods of special leave, or annual leave.
A template for a letter confirming the decision of the hearing is shown at Appendix 11.
6.11 Dismissal
6.11.1 In circumstances where there are allegations of potential serious or gross misconduct a disciplinary hearing should be convened comprising the following:
• the relevant Associate Director/Head of Service, or Executive Director, Head of Service (Clinical) or Medical Director
• a senior member of the Personnel Department • An appropriate professional advisor (if applicable)
6.11.2 Prior to a decision being taken to dismiss, the officer empowered to dismiss will ensure the allegations have been fully investigated and considered by a disciplinary hearing at which the employee is given an opportunity to state his or her case. The disciplining manager will take his or her decision on the balance of probabilities and not on the basis of ‘beyond reasonable doubt’.
6.11.3 The Director with responsibility for Human Resources or the Head/Deputy Head of Personnel must be consulted in advance of the hearing or before the decision to dismiss is taken.
6.11.4 The employee must be issued with a letter giving details of the events and facts leading to the dismissal, and the reason for the dismissal. The letter will include reference to the employee’s right of appeal and details of how any such appeal should be lodged, within 14 calendar days of receipt of the letter of dismissal. It will be necessary to ensure confirmation of receipt of the letter. A copy of the letter should be provided for the employee to forward to his Trade Union or Staff Organisation representative if he/she so wishes.
6.12 Summary Dismissal
6.12.1 Summary dismissal is the dismissal of an employee without notice. This may be appropriate in cases of gross misconduct or cases of performance which are severely damaging to the viability or reputation of the Trust, or loss of qualifications required for a post.
6.12.2 Summary dismissal may be appropriate, for example, in the following circumstances:
• the employee is unfit for duty because of the effects of drugs or alcohol (consumption or effects of);
• allegations are upheld relating to theft, fraud or corruption; • assault;
• misconduct towards patients, public or staff;
• negligence which threatens the health and safety of the patients, visitors, or staff;
• providing false or misleading information;
• not disclosing information under the Rehabilitation of Offenders Act (HC(88)9) in any application for employment;
• more serious cases of harassment, bullying or discrimination; • serious data protection breaches or breaches of confidentiality; • breaches of UK Visas & Immigration requirements
6.12.3 This list is not exhaustive, but given as examples of the types of areas that may be considered as gross misconduct. However, this does not preclude lesser action being taken once the particular circumstances of the case have been taken into account.
6.12.4 Where there are allegations involving potential acts of gross misconduct the officer authorised to dismiss will set up a disciplinary panel hearing as set out above.
6.13 Alternative Sanctions
6.13.1 In certain cases the disciplinary panel may consider whether the individual should be transferred to appropriate alternative employment either in isolation of, or combined with any levels of the disciplinary action. Some alternatives include:‐
• transfer to another post or work area in same band • a permanent transfer to a post or area in a lower band • reduced or different responsibilities in same post • a period of further training or retraining and support
6.13.2 Any specific conditions pertaining to the transfer offer must be specified in writing by the panel following the hearing. The individual will be expected to accept the full terms and conditions of the alternative appointment with no protection of any previous earnings.
6.13.3 The employee must be sent a letter giving details of the reason for the transfer, and that he or she has the right to appeal to the appropriate level.).
6.13.4 Should an employee be transferred in these circumstances it does not preclude other disciplinary action also being taken under this procedure.
6.14 Employees Resigning From Employment
6.14.1 Where an employee voluntarily resigns from their post and leaves the organisation before a disciplinary matter is concluded, the Trust, in light of its public responsibilities, reserves the right to proceed with the process, reaching a decision in the absence of the individual should they choose not to attend the subsequent hearing in person.
6.14.2 The Trust also reserves the right to report the matter to the relevant professional body (e.g. NMC, GMC) and if appropriate to request through the Strategic Health Authority (or successor body) that an alert letter is issued. This complies with the guidance issued HSC 1999/212 Children’s Safeguard Review: Choosing with Care and the Trust’s procedures in the issuing of such letters.
6.14.3 In addition the Trust has other reporting duties under Independent Safeguarding Authority requirements and UK Visas & Immigration regulations and accompanying legislation.
6.14.4 The Trust may also have a duty to report any migrant workers employed and issued with work permits or sponsorship arrangements and who become subject to disciplinary action, to the UK Border Agency. This may also be considered in specific cases, such as lapsed registration or unauthorised absence from the Trust.
6.14.5 In such situations where an employee has not been present at the hearing notification of the Trust’s decision will be forwarded in writing. The employee will be made aware of any follow up action including the reporting of appropriate information to the relevant professional body.
6.15 Criminal Offences
6.15.1 An employee should not be disciplined or dismissed merely because he or she is in police custody or has been charged with, or convicted of a criminal offence, and it is reasonable to extend these principles to police investigations or criminal proceedings which fail to be secured. Disciplinary action (including summary dismissal) may be taken if the Trust believes a criminal offence relevant to employment has been committed.
However in the event of imprisonment or detention where the employee is unable to return to their employment within a reasonable amount of time (e.g. normal period of notice which by his/her contract of employment he/she is so entitled), then the employee’s employment will be deemed to have been terminated as a result of frustration.
6.15.2 When alleged misconduct occurs outside the workplace, whether this is in the context of criminal proceedings or not, it is important to determine whether the alleged misconduct is work related, is potentially in breach of the employee’s professional code of conduct or practice, or is otherwise detrimental to the Trust. This decision should be taken in consultation with a senior member of the Personnel Department, having regard to all relevant employment related circumstances of the case.
6.15.3 It is essential that the facts relating to the alleged misconduct are established as fully and as accurately as possible. In the case of police prosecutions it is
appropriate to ensure where possible that the investigating manager or personnel representative attends any court proceedings in order to make a comprehensive report to indicate the scale and nature of the alleged offence.
6.15.4 In considering disciplinary action, the disciplinary panel should take into account the relevance of the allegation to the individual’s duties in the Trust, and whether this has an adverse effect on the employer/employee relationship. The decision to take disciplinary action, which may include dismissal, may be taken following sufficient investigation as is reasonable in the circumstances, (whether or not court proceedings are pending), based upon the information available and the balance of probabilities.
6.15.5 During employment with the Trust it is the individual employee’s responsibility to notify the Personnel Department and or their Line Manager as soon as is practical after being charged, bound over, cautioned or subject to a police investigation, with any criminal offence (except minor motoring offences) or any action which may impact on their employment or their professional registration.
6.16 Appeals
6.16.1 The right to appeal against any formal disciplinary action is open to any employee regardless of length of service, whether full or part time, substantive or temporary, who is employed under a contract of employment.
6.16.1 Those employees who have been given a first written, second or final level warning may appeal within 14 days of receipt of the letter of notification of the warning to the next level of authority within the Trust (as defined in Appendix 1). There will be no further appeal beyond this level.
6.16.2 The Appeal Panel will determine whether the correct process was appropriately followed and whether the conclusion reached by the Disciplinary Panel was reasonable based on the facts known at the time. It is also an opportunity for the appeals panel to remedy any decisions made by the original Disciplinary Panel and or to consider any new evidence that may have arisen since the original hearing.
6.16.3 Those employees who have been transferred to alternative employment or dismissed within the provisions of this disciplinary procedure by a Director, Associate Director or Head of Service, have the right of appeal to the Trust’s Chief Executive. The Chief Executive or a Director not previously involved will chair an appeals panel which will involve a senior personnel representative and also another Director of the Trust. If the issue is of a professional nature, a senior officer of the profession concerned (a professional advisor) will be available to give objective professional advice. If necessary this person may be external to the Trust. Any such appeal must be lodged in writing with the Director with responsibility for Human Resources within 14 days of receipt of the letter notifying the employee of the disciplinary action.
6.16.4 Those employees who have been dismissed within the provisions of this disciplinary procedure by the Trust’s Chief Executive or Chairman have the right of appeal to a Sub Committee of the Trust Board. Such an appeal must be lodged in writing with the Director with responsibility for Human Resources within 14 days of receipt of the letter notifying the individual of the disciplinary action taken. The Appeals Sub Committee will consist of one Non Executive and one Executive Director of the Trust together with a senior personnel representative. Where
possible, one member of the Sub Committee should have special knowledge of the field of work of the employee. Where this is not possible in cases of appeal against dismissal the Sub Committee may, at the request of the appellant or his representative, appoint an Assessor who is experienced in the speciality of the employee and who has not been involved in the circumstances leading to the dismissal. The Assessor may only advise the Sub Committee on any matter related to the professional conduct or competence of the appellant which arises during the course of the hearing.
6.16.5 The Appeals Sub Committee shall not include any member of the Trust who has been directly involved in the circumstances leading to the disciplinary action.
6.16.6 The hearing of the appeal will normally take place no later than 6 weeks of the receipt of the appeal. The Appeals Sub Committee will report the outcome of the appeal process to the next meeting of the Trust Board.
The following principles will apply to all appeals:
6.16.7 The appellant will have the right of appearing personally at the appeal hearing either alone or accompanied by a Trade Union representative, friend not acting in a legal/professional capacity or work colleague who is not involved in the issue to be addressed. The appellant should notify the personnel representative attending the appeal hearing whether he/she is to be accompanied, the capacity of the person concerned and of any witnesses he or she will be calling.
6.16.8 Both parties to the Appeal will be required to submit written statements of case to the personnel representative attending the appeals hearing. These statements will be exchanged, at least 7 calendar days prior to the hearing.
6.16.9 The management side representative may be accompanied by the Personnel Manager present at the relevant disciplinary hearing if he or she so chooses.
6.16.10The procedure to be followed at the appeal hearing is as set out in Appendix 12 to this document.
6.17 Footnotes
6.17.1 The term ‘Trade Union representative’ includes the representative of a recognised trade union, professional organisation, or staff organisation, or a fellow employee or friend not acting in a professional capacity.
6.17.2 In the case of any students or trainees employed by the Trust, any disciplinary action taken will remain on the employee’s record until the completion of training or for the period of the warning whichever is the longer.
7 Training
7.1 Managers and Staff Side representatives will be expected to undergo awareness training on this policy. In addition the Trust will provide specific training to managers as part of
Leadership Development programme.
8 Equality & Diversity
The Trust is committed to ensuring that, as far as is reasonably practicable, the way we treat staff reflects their individual needs and does not unlawfully discriminate against individuals or groups on the grounds of any protected characteristic (Equality Act 2010). This policy aims to uphold the right of all staff to be treated fairly and consistently in accordance with equality and human rights
requirements. It seeks to follow the principles of natural justice; the right of representation and the right to seek redress.
The Trust must not discriminate unlawfully in the way it responds to concerns about standards of conduct and behaviour, and there is a legal duty to monitor staff involved in the disciplinary procedure to identify any sign of disproportionality. There is also a legal duty to make reasonable adjustments for disabled employees.
This policy has been appropriately assessed.
9 Processes for Monitoring Compliance with the Policy
This procedure will be reviewed periodically to ensure uniformity of treatment and justice for all employees in the implementation of the Trust’s Disciplinary Procedure. This will include publication of statistical information for equal opportunities monitoring purposes.
This Policy will but subject to review, audit and consistency check by senior members of Personnel Department during its tenure.
This procedure will be amended in light of any guidance issued by Government or other legal sources
Standard / process / issue
Monitoring and audit
Method By Committee Frequency
Review policy 2 years after implementation date.
JCC Sub Committee
2 years after implement ation date
JCC & HR Committees
Expiry date of policy
10 Consultation & Review
This policy has been reviewed in consultation with the JCC Policy Sub‐Group.
11 Policy Implementation (Including Awareness Training)
This policy will be circulated by the Trust Secretary as detailed in OP 27 Policy for development, management and authorisation of policies.
12 References
This policy will operate in conjunction with the following policies and associated documentation: Discipline and grievances at work: The ACAS guide 2011
Equality Act 2010 Human Rights Act 1998
Relevant Statutory Registration Professional Codes of Practice. Relevant Safeguarding Guidance
13 Related Documents
The Trust has a comprehensive suite of policies that document standards of conduct in respect of a number of issues. All policies which may affect employment are available on the Trust website:
Policies of particular relevance to employment are:
IC01 Control of Infection IC04 Hand Hygiene Policy IC18 MRSA Policy
OP17 Internet and email usage policy OP6A Information Security
PP10 (a,b,c) Recruitment and Selection Policies PP11 Management of Attendance Policy
PP17(a,b) Mutual Respect in the Workplace & Dealing with Harassment and Bullying PP19 Employment Policy relating to Disclosure and Barring Requirements PP38 Prevention of Alcohol, Drug and Substance Misuse in the Workplace policy PP41 Professional Registration policy
PP42 Work Attire and Appearance
PP20 Standards of Business Conduct, and Gifts and Hospitality PP36 Fraud & Corruption Policy
PP40 Reference Policy
Trust Compact and Vision (available on Trust intranet)
The above list is not exhaustive and is intended to act as a guide.
Relevant Legislation and Codes of Practice
Trade Union and Labour Relations (Consolidation Act) 1992 Employment Act 2008
Trust Policies
Professional Bodies Codes of Practice Trust Compact and Vision
HSC 1999/212
Independent Safeguarding Authority guidance Safeguarding Vulnerable Groups Act 2006 Bribery Act 2010
ACAS Code of Practice 2009 Equality Act 2010
PP1: DISCIPLINARY PROCEDURE – MINIMIUM LEVEL OF RESPONSIBILITY FOR ACTION TO BE TAKEN APPENDIX 1 Please note this chart is under construction and will change
CATEGORIES OF STAFF SUSPENSION FIRST LEVEL SECOND LEVEL FINAL WARNING DISMISSAL
Chief Executive Chairman Chairman Chairman Sub Committee Sub Committee
Executive Board
Member
Chief Executive Chief Executive Chief Executive Chairman Chairman
Board Level
Director/Deputy Chief Executive
Chief Executive/Deputy Chief Executive*
Chief Executive/Deputy Chief Executive *
Chief Executive/Deputy Chief Executive*
Chief Executive Chief Executive
Clinical Head of Service Chief Executive/Deputy
Chief Executive/Medical Director*
Chief Executive/Deputy Chief Executive/Medical Director *
Chief Executive/Deputy Chief Executive/Medical Director*
Chief Executive Chief Executive
Medical & Dental Consultant
Chief Executive/ /Head of
Service/Associate Director *
Chief
Executive/Associate Director /Head of Service*
Chief
Executive/Associate Director /Head of Service*
Chief
Executive/Associate Director
Chief Executive/Board Level Director
Other directly employed senior Medical Staff (e.g. Associate Specialist//Specialty Doctor)
Head of Service (Clinical) Head of Service (Clinical) Head of Service (Clinical) Head of Service (Clinical) Chief Executive/Medical
Director
Other directly employed junior medical staff (e.g. Foundation Programme/Junior Clinical Fellows/Senior Clinical Fellows)
Clinical Lead Clinical Lead Clinical Lead Clinical Lead Director/Associate
CATEGORIES OF STAFF SUSPENSION FIRST LEVEL SECOND LEVEL FINAL WARNING DISMISSAL Managers reporting
direct to Board Level Directors e.g. Deputy Directors/Service Line Managers
Director /Associate Director
Director/Associate Director
Director/Associate Director
Director/Associate Director
Chief Executive/ /Associate Director*
All Other Staff
Line Manager (e.g. Ward Manager/Service Line Managers/Head of Service)
Matron/Service Line Manager/Head of Service)
Matron/Service Line Manager/Head of Service
Matron/Service Line Manager/Head of Service
Associate Director/Head of Service
* denotes devolved responsibility NB. – Any staff not directly employed by the Trust – e.g. Junior doctors employed by the Lead Employer Trust, please seek advice from Personnel as to appropriate Policy or procedure to be used.
