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1 Title: Disciplinary Policy Date Approved by: Approved: February JSPF 2015 March 2015 OD and Workforce Committee October 2016 JSPF Division/Department: Date of review: November 2018 Policy Category: Policy Ref: HR/0018 Issue: 2 Trust HQ Author (post-holder): Human Resources Business Partner HR Policies and Procedures Sponsor (Director): Executive Director of Human Resources CONTENT SECTION DESCRIPTION PAGE 1 Introduction 2 2 Purpose and Score 2 3 Expected Behaviours 2 4 Informal discussions 2 5 Formal Process 3 6 Suspension 3 7 Investigation 4 8 Disciplinary Hearing 5 9 Disciplinary Sanctions 5 10 Action Short of Dismissal 6 11 Dismissal 6 12 Right of Appeal 6 13 Professional Misconduct 7 14 Action in the event of a Police Enquiry, Legal or Professional Proceedings 7 15 Evidence Base 7 16 Monitoring Compliance 7 17 Training 7 18 Distribution 7 19 Communication 8 20 Author and Review Details 8

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3 1 INTRODUCTION 1.1 Sherwood Forest Hospitals NHS Foundation Trust (the Trust) recognises the need for managers to manage their staff in a supportive, consistent and fair manner. This procedure is designed to facilitate and encourage all employees to maintain acceptable standards of conduct, performance and behaviours in line with the Trust s (Quality for All) values and Performance Management Framework (PMF), whilst safeguarding the interests of the Trust, its patients, clients and staff. 1.2 This policy outlines the procedure that will be followed when it is necessary to take action of a disciplinary nature against employees. The intention is that potential disciplinary cases are dealt with at an early stage, with a view to resolving problems as quickly and fairly as possible and that employees are encouraged to improve their standard of work, conduct and behaviours. 1.3 The procedure is produced in line with the duties imposed by legislation and recognised good practice, as detailed by the Advisory, Conciliation and Arbitration Service (ACAS). 2. PURPOSE AND SCOPE 2.1 This policy applies to all staff employed under a contract of employment with the Trust. It is noted that guidance on hearings and disciplinary procedures regarding medical and dental staff was published in 2005 in Maintaining High Professional Standards in the Modern NHS. This guidance states misconduct matters for doctors and dentists are matters for local employers and must be resolved locally. In cases of alleged misconduct by medical and dental staff relating to matters of a professional nature or professional conduct, hearings must be conducted in accordance with this local policy and guidance incorporating the amendments made by MHPS eg Part III. 2.2 It is recognised that the various professional bodies, of which many health care staff are required to have membership, may also have professional standards of capability, conduct and competence. The Trust requires employees in those professions to adhere to these standards, although only the statutory regulating bodies themselves can judge whether or not the standards have been adhered to. 2.3 Matters of a disciplinary nature relating to the conduct or behaviours of a member of bank staff will be dealt with under this policy. 3 EXPECTED BEHAVIOURS 3.1 Trust policies and procedures outline the rules and conduct expected from staff. 3.2 The Quality for All values identify the conduct and behaviours required by all staff employed by the Trust. 3.3 The Performance Management Framework will support the delivery of the Trust s ambition to deliver safe, personalised and efficient care, through strengthening the Trust s approach to performance management. It aims to foster a culture of responsibility and accountability at all levels within the Trust. 3.4 Examples of Misconduct and Gross Misconduct are outlined in the toolkit. These lists Page 3 Issue 3

4 are not exhaustive. 4 INFORMAL DISCUSSIONS AND IMPROVEMENT NOTICE 4.1 On occasions it will not be appropriate for managers to use the disciplinary procedure for perceived conduct and behaviour concerns by an employee. 4.2 Managers are expected to see the employee concerned and discuss with them why the expected standard of conduct and/or behaviour is not being met. The aim of the meeting should be to clarify standards required and agree improvement expected over an appropriate timescale. Any agreed training in order to facilitate improved conduct and/or behaviours should also be identified. This should be followed up in writing with an Improvement Notice which will remain on file for 12 months. 4.3 Counselling meetings to discuss such issues are not disciplinary hearings. However if it becomes clear during the course of a meeting that disciplinary action may be necessary, the meeting should be ended and a decision taken with regard to the need for an investigation. 4.4 Where informal discussion and the Improvement Notice have fails to address the conduct and/or behaviour concerns, or it involves more serious incidents, it will be appropriate to follow the formal disciplinary investigation process. 5. FORMAL DISCIPLINARY PROCESS 5.1 For examples of alleged gross misconduct, misconduct or where counselling discussions have failed to improve conduct and/or behaviour concerns a formal investigation will be instigated. 6. SUSPENSION 6.1 Alternatives to suspension must always be considered before suspending an employee e.g. redeployment, providing increased levels of supervision to the member of staff, restricting the member of staff from undertaking certain aspects of their role during the Investigation process. 6.2 Where alternatives to suspension are not deemed to be suitable, the options considered and rationale must be documented and must form part of the investigation report. 6.3 Suspension from duty on full pay may become necessary in certain circumstances. These could include (but are not limited to) situations where: the allegation requires immediate removal of the employee from their place of work pending a decision of what action, if any, is to be taken; the allegation requires investigation and is of such a serious nature (i.e. potentially gross misconduct) that it is undesirable for the employee concerned to remain on duty; it is necessary for the protection of a member of staff, a patient, or the public; Page 4 Issue 3

5 if there are concerns regarding the completion of fair and objective investigation e.g. potential witness intimidation or evidence tampering. 6.4 The suspension of a midwife from duty arising because of alleged professional misconduct should be immediately reported to the Local Supervising Authority. 6.5 Suspension in relation to safeguarding concerns must be authorised by the Safeguarding Lead for the Trust. 6.6 The decision to suspend an employee must be taken by an authorising dismissing officer or designated deputy. 6.7 The individual who has been suspended must not undertake paid work for another employer during their normal working hours or undertakes locum or bank work for the Trust. 6.8 Periods of suspension should be kept to a minimum and should not exceed 28 days. Where it is apparent that this is going to be exceeded, the authorised dismissing officer (or designated deputy) should write to the employee to advise on the period of extension and the reasons. In any event, extensions should not normally exceed a period of 3 months Employees may be advised to return any Trust property during their suspension including laptops, mobile phones, smart cards and access cards (excluding car park barrier pass) Employees should also be advised that their IT accounts will be closed during their suspension. Employees should contact HR if they need access to their work documents or IT account during their suspension in order to gain information that may help the investigation. 7 INVESTIGATION 7.1 A fact finding exercise will initially be undertaken to ascertain if there is a requirement to progress to a disciplinary investigation. 7.2 The authorised dismissing officer or designated deputy will identify an investigating officer. The investigating officer should not be someone who is directly responsible for the employee who is being investigated, in order to ensure a fair and objective investigation. 7.3 The investigating officer should not be directly or indirectly involved in the incident. It should also be noted that an investigating officer cannot subsequently be a member of the disciplinary panel in the event a formal hearing is required. 7.4 Employees who are the subjects of an investigation via this policy must be written to in 7 working days of being informed of the concerns, out lining the nature of the allegation being investigated. The letter must contain the points outlined in the managers toolkit. 7.5 The investigating officer will be responsible for ascertaining the full facts of the case and for providing a report to the authorising dismissing officer concerned. In cases where an incident involves, or was witnessed by, a number of employees, this must Page 5 Issue 3

6 involve obtaining statements from each individual employee, who has the right to be accompanied by their trade union representative or work colleague not acting in a professional capacity to any investigation meeting. 7.6 The investigating officer should keep the employee under investigation updated with regards to timescales of the investigation. 7.7 The investigating officer will submit a report including all evidence collected to the authorised dismissing officer or designated deputy, outlining the full facts and circumstances of the case based on the evidence collected. 7.8 The authorised dismissing officer or designed deputy will review the report and make a decision regarding whether a formal disciplinary hearing should be convened. Advice is available from the Human Resources Business Partner or Deputy Director of Human Resources. 7.9 If a disciplinary hearing is deemed not appropriate the authorised dismissing officer (or designed deputy) should meet with the employee at the earliest opportunity to discuss the findings of the report and agree a way forward. A letter confirming the outcome of this meeting should be sent to the employee within 7 working days of the meeting. 8. DISCIPLINARY HEARING 8.1 If it is deemed necessary to convene a disciplinary hearing, this should be arranged within 4 weeks of the date of submission of the report to the authorised dismissing officer (or designed deputy). 8.2 The disciplinary hearing will be heard by the authorised dismissing officer (or designated deputy) who will be supported by a Human Resources Representative. 8.3 On occasions it may be necessary to have an independent/specialist advisor on the panel. 8.4 The management case will be presented by the investigating officer who will be supported by an HR Representative. 8.5 The employee is entitled to be represented by an accredited representative of a recognised trade union or accompanied by a work colleague not acting in a professional capacity. 8.6 A copy of the report (including all evidence collected) will be sent to the employee at least 7 working days prior to the disciplinary hearing. 8.7 The order of the disciplinary hearing is outlined in the toolkit 9. DISCIPLINARY SANCTIONS 9.1 Formal Written Warnings In all cases where a formal written warning is to be issued, this must be notified to the individual at the hearing and subsequently must be confirmed in writing within 7 Page 6 Issue 3

7 working days of the disciplinary hearing. Both the verbal and subsequent written confirmation must include reference to the points in the toolkit 9.2 First Written Warning can be issued for a specified period of up to 18 months. This will normally be issued if it is deemed as misconduct by the disciplinary panel. 9.3 Final Written Warning can be issued for a specified period of up to 24 months. This will normally be issued where there has been a repeat of a breach of the disciplinary rule(s) or a failure to improve or change behaviour in the timescale set in a first written warning or, on a first occasion, where the offence is sufficiently serious to warrant it. 9.4 Staff who have been issued with a first or final written warning will have their incremental pay progression withheld for the period the warning is active. 10. OTHER ACTION SHORT OF DISMISSAL EXTENSION OF FINAL WARNING / TRANSFER / DOWNBANDING 10.1 According to the circumstances of the case, other action may be considered as an alternative to dismissal. This may involve a transfer and/or down banding to a different department and/or location and/or shift pattern Following disciplinary action short of dismissal, the Manager must supply supportive follow up and discuss progress with the employee. The employee is obliged to raise any issues of concern and identify support which they may need to enable the required improvement A copy of the outcome letter confirming formal warnings, down bandings, redeployment, transfer or dismissal plus the investigation report must be retained on the employees personal file 11 DISMISSAL 11.1 Dismissal under the Disciplinary Policy is the final sanction that can be imposed. It is usually applicable where the behaviour or conduct constitutes gross misconduct or where there have been previous instances that are the subject of live disciplinary warnings Acts of gross misconduct result in dismissal without notice (summary dismissal) unless there are substantial mitigating circumstances which justify the application of a lesser penalty in the judgement of the person conducting the disciplinary hearing The decision to dismiss must be communicated to the employee within 7 working days and must contain the information in the toolkit. 12. RIGHT OF APPEAL 12.1 There will be a right of appeal against any formal warnings, down bandings, redeployment, transfer or dismissal. The sanction will be put in place until the appeal has been heard. Employees must be informed of their right of appeal and advised of Page 7 Issue 3

8 the procedure for lodging an appeal in writing in the letter confirming any disciplinary action Appeals must be made in writing to the Executive Director of Human Resources outlining the reasons for the appeal, within 4 weeks of the date of the disciplinary hearing Appeals will be heard by a panel and will normally be held within 8 weeks of receipt of the written appeal, or as soon as is reasonably practicable See the Appeals Procedure regarding panel and process for appeal hearings The employee has the right to be accompanied by an accredited representative of a recognised Trade Union Representative or work colleague not acting in a professional capacity Any concerns in relation to the disciplinary process must be addressed through the disciplinary process and not via the Trust Grievance Policy. 13. PROFESSIONAL MISCONDUCT 13.1 Within certain occupations if it is substantiated that a practitioner has committed misconduct and/or gross misconduct which has resulted in disciplinary action, including dismissal, the Trust has a duty to report these to the appropriate statutory regulating bodies e.g. NMC, HCPC, Information Commissioner Where a statutory regulating body has identified that a practitioner has failed to adhere to professional standards and taken appropriate action, the Trust will implement this policy, the outcome of the process could include dismissal without notice ACTION IN THE EVENT OF POLICE ENQUIRY, LEGAL OR PROFESSIONAL PROCEEDINGS 14.1 The Trust will consider whether it is necessary to invoke the disciplinary policy where a member of staff is charged with, or convicted of a criminal offence(s) related or unrelated to their employment. This decision will take into account whether the charge or conviction is one that is directly relevant to their employment or makes them unsuitable for the type of work e.g Child Protection and Vulnerable Adults Disciplinary proceedings, including dismissal, may take place in advance of any court hearing where the Trust has sufficient evidence to reach a conclusion in accordance with the normal standard(s) established. 15 EVIDENCE BASE ACAS Disciplinary Code People Management Chartered Institute of Personnel and Development Publications and Codes Page 8 Issue 3

9 Department of Trade and Industry Web Site Relevant Primary Legislation 16 MONITORING COMPLIANCE 16.1 Monitoring of disciplinary cases is undertaken on an ongoing basis by the Deputy Deputy Director of HR. 17 TRAINING REQUIREMENTS 17.1 Training has been provided to Managers on the application of this Disciplinary Rules and Procedure and update training is made available on a yearly basis. Trade Union Representatives also receive training via their union s training resources. 18 DISTRIBUTION 18.1 The procedure will be held on Trust intranet site under HR Policies. 19 COMMUNICATION 19.1 Communication will be through Team Briefing sessions and training update events. 20 AUTHOR AND REVIEW DETAILS Date issued: November 2016 Date to be reviewed by: November 2018 Issue To be reviewed by: Executive Sponsor: Number 2 HR Business Partner Executive Director of Human Resources Page 9 Issue 3

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