Policy Human Resources Department

Transcription

1 Title: Disciplinary Policy Authors: Kirstie Lord, HR Business Partner Document Lead: Isobel Clements, Acting Director for Staff Policy Human Resources Department Ratified by: Partnership Forum Active date: 7 th December 2012 Ratification date: 2 nd July th October 2009 (minor amendment) 7 th December 2012 (minor amendment) Applies to: All non medical staff Review date: 7 th March 2013 Exclusions: Medical Staff Purpose: The purpose of this policy is to set out a fair, supportive and effective process for managing staff who fail to meet expected standards with regard to conduct. VERSION CONTROL - This document can only be considered current when viewed via the Policies and Guidance database via the Trust intranet. If this document is printed or saved to another location, you are advised to check that the version you use remains current and valid, with reference to the active date. Contents: Section Description Page Summary Flowchart 2 1 Introduction 3 2 Purpose and aims 3 3 Scope of the policy 3 4 Policy principles 3 5 Disciplinary standards 7 6 Disciplinary process 11 7 Investigation 12 8 Disciplinary hearing outcomes 13 9 Policy review and monitoring 14 Page 1 of 41

2 Complaint Received/ Issue Raised Manager carries out initial fact finding to form a view as to whether matters should be dealt with formally or informally. Informal Arrange meeting with individual to discuss issues and obtain their views: - Explain what needs to be done to improve and set timeframe for improvement - Review arrangements - What could happen next if improvement not sustained i.e. formal action - Confirm in writing with copy on personal file. Appoint Investigating Officer Appendix note D Investigating Officer conducts investigation and produces report for commissioning manager Formal Ensure right of representation offered throughout Decision on suspension / redeployment with appropriate authorisation Appendix note C Commissioning manager makes decision on next step & notifies relevant parties of outcome of investigation To be managed outside of the disciplinary policy (e.g. training / capability policy) Disciplinary Hearing Guidance note E / F Satisfactory improvement - Confirmation in writing - No further action Unsatisfactory progress/performance Sanction given Appeal Appendix note G Page 2 of 41

3 1. Introduction This policy has been produced and agreed in partnership between management and Trade Union representatives of the Trust to ensure all employees are treated equitably when their conduct fails to meet the expected standards. 2. Purpose and Aims 2.1 The purpose of this policy is to set out a fair, consistent and responsible process to follow when employees fail to meet the standards set by Taunton & Somerset NHS Foundation Trust with regard to conduct. 2.2 To ensure managers adopt an appropriate and effective approach on matters of discipline. 2.3 To assist and encourage all employees to achieve and maintain appropriate standards of conduct and to ensure standards are improved when required. 3. Scope of the policy 3.1 The policy covers misconduct of employees,. Failure of an employee to perform at expected standards should be dealt with under the Capability and Poor Performance Policy, and concerns in relation to sickness absence should be dealt with in accordance with the Managing Sickness policy. 3.2 This policy applies to all non medical employees directly employed by Taunton & Somerset NHS Trust, including Temporary, Bank staff and volunteers. Medical and Dental staff will retain separate arrangements under the Maintaining High Professional Standards in the NHS Policy. 4. Policy Principles 4.1 Before invoking this policy managers must consider if informal action is relevant to resolve the issues raised, they should seek HR advice to help decide if this is more appropriate. 4.2 It is the responsibility of all managers, staff and their representatives to deal with disciplinary matters in accordance with this policy. Failure to do so can result in staff not being accorded their full rights under employment legislation. Page 3 of 41

4 4.3 It is the responsibility of all employees to familiarise themselves with the policies and procedures applying to their employment and areas of work, in particular the standards of conduct expected of them. 4.4 No disciplinary action will be taken until the case has been fully investigated by someone independent to the incident. 4.5 Issues should be raised and dealt with promptly, with no unnecessary delay in meetings, decisions or confirmation of decisions. 4.6 All references to days in this policy mean calendar days. The time limits referred to in this policy may be varied by mutual agreement, in this instance documentation confirming the agreement must be maintained. 4.7 In some cases there maybe the justification to suspend a member of staff on full pay, whilst undertaking full investigation. Suspension is in the employees own interest. It is a neutral act and does not in itself constitute disciplinary action. 4.8 Suspension must be agreed by an appropriate level of manager and the Divisional Human Resources Business Partner, and will be for an initial two week period. The Chief Executive and the Board must be informed of any suspension, and a Board member will be nominated to monitor the suspension and subsequent action. 4.9 The employee will always be advised of the nature of the complaint against them and will be given the opportunity to state their case to the Investigating Officer before any decision will be made At all stages the employee will have the right to be accompanied by a Trade Union Representative or work colleague this does not extend to the right of being accompanied by partners, family members or legal representation. Employee s attention should be drawn to the rights of staff. (Guidance Note B) 4.11 Appropriate support should be offered to employees who have a disability or those for whom English is not their first language. Page 4 of 41

5 4.12 Other than in cases of gross misconduct no employee will be dismissed for a first offence If an employee is concerned about an individual elected as investigating officer or panel member, they have the right to put their objections in writing to the commissioning manager. This needs to be done as soon as concerns are apparent and certainly within 48 hours of notification Employees have the right of appeal against any formal disciplinary action taken under this policy All information discussed during the investigation and hearings must be treated with strict confidentiality by all parties concerned. Failure to do so could lead to disciplinary action If during the investigation or hearing information comes to light which warrants further attention, details will be passed to the relevant manager the need to maintain confidentiality can not over-ride the need to act on information Employees governed by Professional Bodies are reminded that the Trust has a duty to report instances of misconduct to the appropriate body as well as following it carrying out its own investigation and taking disciplinary action in appropriate cases. Dependant on the circumstances this would not normally happen until after the investigation has been completed Information received by the Trust from a Professional Body, the Police or any other reputable organisation will also be investigated and appropriate action taken In cases of potential fraud before any action is taken, the Trust will involve the Local Counter Fraud Advisor to agree the appropriate course of action. This will not be discussed with the individual concerned until a decision is made on the appropriate course of action Disciplinary decisions will be recorded and monitored by the Workforce Strategy Group to ensure that the procedure is operated fairly and consistently to all staff regardless of their ethnic origin, sex, age, gender or disability. Where evidence of inequality or adverse effect is found the Trust will take remedial action accordingly. Page 5 of 41

6 4.21 If an employee resigns prior to the conclusion of an investigation or at the point of a disciplinary hearing, where feasible the Trust will make all attempts to bring the matter to a conclusion and the employee encouraged as far as possible to participate in the process The disciplinary panel will consist of three members, the chair, who will normally be the commissioning manager, a HR representative and a third panel member who will be determined by the chair Dismissal may only be authorised by an appropriate level of manager as set out in this policy. Those authorised to dismiss may delegate power of dismissal, in writing prior to the hearing to another manager at a senior level When arranging a disciplinary hearing individuals will be given at least seven days prior notice. In the event of the need to reschedule every effort should be taken to ensure a reasonable time frame is met. In exceptional cases it may be necessary to hold the disciplinary hearing in the absence of the employee if they fail to attend on two occasions without giving reasonable notice of the non-attendance Where allegations are made involving a recognised Trade Union or Health and Safety representative this procedure should be followed, but with the employees agreement the circumstances of the case should be discussed with a full-time official of the union concerned The Director of Governance and Nursing shall be informed before a decision is taken to dismiss a nurse, midwife or Allied Health Professional Where allegations are made concerning professional malpractice, negligence or misconduct on the part of a practicing midwife the Supervisor of Midwives must be involved in the investigations form the outset Any concerns relating to a member of staff maltreating a child will be reported immediately to the Director with responsibility for safeguarding children (Guidance note H). Page 6 of 41

7 4.29 Where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related both issues will be dealt with concurrently. 5. Disciplinary Standards Disciplinary standards are produced to ensure that staff are aware of the standards of conduct expected of them and the type of conduct that will warrant disciplinary action including summary dismissal. No set of disciplinary standards can cover all circumstances that may arise during the course of employment; therefore, the following list should not be regarded as exhaustive or complete. It has been drawn up to enable staff to know and understand the types of conduct that will warrant disciplinary action and describe the Trust s approach to issues of staff misconduct. The following list is for a guide only, the final decision on the level of disciplinary action will take into account the individual circumstances of the case. Depending on the circumstances of the case and the seriousness of the offence the outcome may lead to dismissal, even for those acts which fall under the serious examples below. 5.1 Examples of conduct warranting disciplinary action which may be considered serious: Failure to knowingly carry out duties satisfactorily Failure to comply with reasonable instructions Acts of insubordination Persistent failure to wear ID badge(s) or adhere to dress codes Failure to administer drugs in accordance with NMC guidelines and the Drug Administration policy Persistent bad timekeeping Unauthorised absence without good reason Unauthorised or inappropriate use of NHS property Attending for duty under the influence of alcohol or drugs (See alcohol policy) Smoking on site Using offensive language Actions likely to bring the Trust into disrepute Page 7 of 41

8 Failure to provide an efficient, safe and high quality service with concern and respect for the feelings and well-being of other employees, patients and visitors Failure to observe the Trust internal policies Failure to follow the correct procedure for dealing with the media Inappropriate use of the internet Poor personal hygiene Failure to take action required as a result of a grievance, previous disciplinary hearing or Bullying and Harassment complaint. 5.2 Examples of Conduct that could warrant dismissal There are in addition, certain types of conduct which could be considered, if proven, so serious as to constitute gross misconduct and to warrant dismissal with no previous warnings and no notice or pay in lieu of notice: Dishonesty: Unauthorised possession or use of Trust property (including installation of unauthorised software) or of property belonging to patients, visitors or other members of staff. Deliberate falsification of records or the deliberate attempt to obtain money from the Trust by false pretences or from a member of the public in the course of official duties. This includes misrepresentation of entitlement to expenses or allowances. Falsification or misrepresentation of timesheets or clock cards. Claiming sick pay when not ill, or when working elsewhere without permission of the Trust. The unauthorised receipt of money, goods, favours or hospitality in respect of any service rendered; Failure to disclose an interest Any action which is knowingly contrary to Trust s Standing Orders or Standing Financial Instructions. Assault Any assault or attempt to cause injury (including verbal assault) upon a patient, member of the public, or other employee that takes place whether on Trust premises, whilst on duty, at an off site social event, or outside of the work environment, including threat of assault. Page 8 of 41

9 Harassment Any uninvited, unwelcome or unreciprocated behaviour of a sexual or social nature which is offensive to the person involved and causes that person to feel threatened, humiliated or embarrassed, or which compromise the position of whistleblowers. Any acts of harassment or discriminating behaviour so as to prejudice the health, safety and well-being of staff or others, this can also include the use of equipment such as cameras, mobile phones, and computers. Child Protection and Vulnerable Adults Concerns All allegations of abuse or maltreatment of a child or an adult by a professional, staff member, or volunteer will be taken seriously and treated in accordance with the process set out in Appendix C of the Child Protection Policy ( Allegations Against Staff ) and according to this policy. Gross Carelessness Any actions, or failure to act, which threatens the health or safety of a patient, member of the public or another member of staff on Trust premises or which may bring the Trust into disrepute. Malicious Damage To Trust property or to the property of patients, visitors or staff. Being Unfit for Duty Through the effect of, for example, drink or drugs (subject to the recommendations within the Alcohol Policy) or by being asleep on duty. Failure to report any known contagious or infectious disease or any other hazard which may endanger the health of other staff, patients or visitors. Failure to fulfil contract Conduct or behaviour which may render continuation of employment impossible or undesirable following a breach of contract. Breach of statutory requirements e.g. Prevention of Illegal Working Page 9 of 41

10 Conviction under court proceedings which in the opinion of the Trust renders the employee unsuitable to continue the duties for which they are employed Being barred by the Independent Safe Guarding Authority. Unauthorised Access and/or Disclosure of Information Breach of trust or misuse or unauthorised disclosure of any confidential information or data, documents or information relating to individuals patients, members of staff, or affairs of the Trust. Not withstanding the Whistleblowing policy where any individual has the right to speak out when they believe there is good cause to do so under the protection of this policy. Intentionally Making False Statements Falsifying documents, for example when incidents or accidents are being investigated, or when applying for employment, transfer or promotion, or in connection with medical examinations relating to the Trust Failure to fully disclose a previous conviction under the Rehabilitation of Offenders Act in securing employment with the Trust. 5.3 Local Policies / Procedures Locally departments may have policies and or procedures drawn up which set out specific rules that apply to employees within the departments (e.g. concerning safe handling of dangerous substances, radiological safety or operation of machinery). Supplementary rules, dress codes and codes of conduct may be drawn up for specific departments or disciplines with the involvement of a staffside representative. Where such documents exist they shall be made known to whom they apply and a breach of the local policy will constitute a breach in this disciplinary policy. 5.4 Professional Registration Certain staff are required by law to be registered with a particular body. If such registration or membership lapses or is cancelled the Trust will take immediate action to either temporarily redeploy the individual to a post which does not require professional registration or suspend the employee without pay. Reference should be made to the Professional Registration policy Page 10 of 41

11 and in certain circumstances it may be necessary to investigate the reasons for the lapse in membership, as failure to be registered is a serious disciplinary offence. 5.5 Loss of Driving License Staff employed in posts for which there is a contractual requirement for the possession of a valid driving license must inform their supervisor/manager if the licence is withdrawn for any reason. Where a person who is employed in such a post loses his licence their contract of employment may be terminated. Alternative working arrangements or employment will be considered in such cases but will only be offered as follows: When alternative work arrangements maybe made without detriment to the Trust s purpose and its patients and other staff members. Where a suitable alternative vacancy exists at the material time. When the circumstances of the case merit such an offer being made 5.6 Criminal Offences Outside Employment Any employee who is arrested on any charge or served with a summons on a criminal charge must inform their supervisor/manager as soon as practicable. The action taken by the Trust in such circumstances will depend on the facts of the case. The main consideration will be whether the alleged offence will render the employee unsuitable for the role they are employed for or found unacceptable to other employees. It is stressed, however, that each case will be considered on its merits and that there is no general rule that requires the automatic investigation of a member of staff who is alleged to have committed an offence outside of employment. In determining the seriousness of the misconduct particular regard will be given to the circumstances of the individual case, factors which can influence a decision as the seriousness of the case may include: The type and degree of misconduct The consequences The frequency The level of responsibility of the employee Page 11 of 41

12 6. Disciplinary Process When a manager has reasonable grounds for believing that there has been a breach of the disciplinary standards they should discuss this concern with their HR representative to decide on the most appropriate course of action. The process to follow is set out at the end of this policy and should be adhered to. 6.1 Informal Action Issues should be addressed as soon as possible through the informal process in order for them to be resolved as easily and quickly as possible. Consideration should be given to whether mediation will help to resolve the issues raised. Arrange to meet with the employee and discuss in an open and honest way the concerns regarding their behaviour and set out the standards expected. The purpose of this meeting is to listen to the employee and then to agree what actions need to be taken to change the behaviour to meet the standards as set out by the Trust. The outcome of the meeting must be confirmed in writing, with clear timescales for improvement, and set out what the next stage will be if the improvement is not achieved in time. If improvement is made then the issue has been resolved and this should be confirmed in writing, clearly setting out the expectation that this behaviour continues. If there is no improvement within the set timeframe then the matter should be dealt with under the formal process of this policy. 6.2 Formal Process If it is agreed that the concern cannot be addressed through informal action, or where informal action has failed, then the manager and HR representative will meet with the employee and their representative to inform them of the decision to proceed with an investigation in accordance with this policy. The manager and HR representative will need to discuss whether the employee is able to continue working within their role during the investigation. If this is not possible then they should consider if redeployment or suspension is appropriate. See guidance note C. 7. Investigation Page 12 of 41

13 The manager will be responsible for commissioning an independent investigatory officer to fully investigate the allegation in order to establish the facts. The investigatory officer will be required to produce a report detailing the investigation. The investigatory officer s role is purely to establish the facts and present these in a sensible manner, it is not to make recommendations for the way forward. The commissioning manager, with HR support will make the decision on the next steps to be taken depending on the evidence provided within the investigation report. The investigation report will only be shared with the employee being investigated if the decision is to proceed to a formal disciplinary hearing. If the decision is taken not to proceed to a disciplinary hearing then clear rationale of the reason for this decision, confirmed in writing, needs to be provided to all parties involved, see Guidance Note D. In the case of a formal disciplinary hearing, the investigatory officer will be required to present their findings as part of the hearing, and present witnesses who are able to support or clarify the key points within the investigation. See guidance note D. 8. Disciplinary Hearing Outcomes Formal disciplinary action may only be taken by an appropriate manager as set out in guidance note A. The following are the options available for the disciplinary panel to agree as the outcome of the hearing. 8.1 No Case to Answer This is appropriate when on the balance of probabilities the panel agree that the employee did not behave in the way alleged, or when the mitigation put forward is deemed sufficient to excuse the conduct on this occasion. In this case there will be no evidence of the investigation or hearing on the employee s personal file. 8.2 Stage One: Formal Warning Appropriate in cases involving offences of minor misconduct or where attempts of counselling/informal action has failed to secure improvement. To remain effective for 12 months but may be varied as appropriate, to a maximum of 24 months. It is the line manager s responsibility to remove details of the investigation report and warnings from the personal file when expired. Page 13 of 41

14 The Right of Appeal is to the next Line Manager within 14 calendar days from the date of the letter. 8.3 Stage Two: Final Warning Appropriate where there is a formal warning on file or where serious misconduct is proven. To remain effective for 24 months but may be varied as appropriate, to a maximum of 36 months. There can be exceptional circumstances where the misconduct is so serious that it cannot realistically be disregarded for further disciplinary purposes. In such circumstances it should be made clear that the final warning can never lapse and that any re-occurrence will lead to dismissal. At stage two an outcome may be to redeploy the employee to another role should there be a suitable vacancy or to a different location if appropriate, which may involve removing them from patient contact, or in effect a downgrade. In this situation the Redeployment Policy will be used to manage this process, and there will be no pay protection if an employee is down graded as a result of disciplinary action. It is the line manager s responsibility to remove details of the investigation report and warnings from the personal file when expired. The Right of Appeal is to the next Line Manager within 14 calendar days from the date of the letter. 8.4 Stage Three: Dismissal Appropriate in cases of gross misconduct or where there is a current final warning on file. A member of staff maybe summarily dismissed (without notice, any outstanding annual leave payments or a payment in lieu of notice) only in the event of gross misconduct. The Right of Appeal is to the Divisional Director within 14 calendar days from the date of the letter. 9. Policy Review and Monitoring This Policy will be reviewed three years after its implementation, or earlier at the initiative of either side of the Partnership Forum or following legislative changes. Page 14 of 41

15 The Policy will be monitored through the Workforce Strategy Group who will: monitor the number of disciplinary hearings and outcomes to review whether a fair, consistent and responsible process for dealing with employee misconduct is in place; review the ethnic monitoring information held on those employees who have had disciplinary action against them to identify if discrimination is taking place; review the number and length of suspensions, and the outcome of each suspension, to ensure this is being applied only in appropriate circumstances; make recommendations for a review to be carried out as and when legislation changes. Page 15 of 41

16 Disciplinary Policy Guidance Notes The following standard documents have been written to assist managers and HR staff in the delivery of a consistent approach in accordance with the Trust s Disciplinary Policy. DOCUMENTS A. Levels of Authority for disciplinary/appeal panels Page 17 B. Employees Rights Page 18 C. Suspension / Redeployment Page 19 - suspension form Page 20 D. Investigation Procedure Page 21 E. Checklist Arranging a disciplinary hearing Page 28 F. Conducting a disciplinary hearing Page 32 G. Appeals Procedure Page 33 H Allegations against staff relating to maltreatment of children Page 36 Page 16 of 41

17 Appendix A Levels of authority for disciplinary/appeal panels Employee Instigator of Appeal Stage Consult Investigation/Chair of Disciplinary Hearing/Authority to suspend Executive Director Chief Executive Trust Chairman Executive Director of Organisational Development Divisional Director Chief Operating Officer Chief Executive Executive Director of Organisational Development Clinical Director Divisional Director / Chief Executive HR Business Direct reports to Clinical / Divisional Director Nursing Staff Medical Director Clinical / Divisional Director Assistant Director of Nursing / Matron Executive Director or Director from another function Divisional Director Partner HR Business Partner HR Advisor /Senior HR Advisor / HR Business Partner Non Nursing Staff Head of Department Divisional Director HR Advisor /Senior HR Advisor / HR Business Partner The chair of the panel would usually be the manager with the authority to dismiss the employee if dismissal is a likely outcome. This responsibility can be handed to a designated deputy who is formally acting in the role or another manager at the same/equivalent level. Delegated authority will be given in writing ahead of any disciplinary hearing. It may be appropriate to involve a professional/specialist panel member for certain disciplinary/grievance hearings, who may be external to the Trust. Page 17 of 41

18 Appendix B Employee Rights This guidance note summarises the rights of staff involved in disciplinary situations. Each member of staff has the right:- To be advised of as much detail as possible of the alleged misconduct at the outset of the process. This is to be confirmed in writing to the employee and should include copies of incident forms, statements and any other relevant information and documentation. This information should be made anonymous where necessary. To be accompanied at all stages of the disciplinary process by a work colleague or trade union official* - this does not extend to the right to be accompanied by partners, family members or legal representation. In the event the employee is required to attend a disciplinary hearing, the chosen companion will have a say in the time and date of the hearing. If the companion cannot attend on a proposed date the employee can suggest an alternative time and date so long as it is reasonable and it is not more than five working days after the original date. Individuals should be aware that in exceptional cases it maybe necessary to hold the disciplinary hearing and make a decision in the absence of the employee if they fail to attend / cancel the hearing on two occasions. To be advised of the seriousness of the misconduct alleged i.e. whether dismissal is a possibility To put their objections in writing if they are unhappy regarding the individual elected to be the Investigating Officer and also individual panel members, if they feel that these individuals will be biased. To appeal against any formal disciplinary action taken under the Trust s Disciplinary Policy. To look at records of any disciplinary action which are retained on their personal file. Access to information will be in line with the Trust guidelines on Data Protection. *To identify the Trade Union Representatives within the Trust visit the Your Unions page on the Trust Intranet site. Page 18 of 41

19 Appendix C Suspension / Redeployment Managers should consider suspension only in circumstances that warrant the removal of the member of staff from the workplace. Before a manager suspends a member of staff they must discuss the situation with a HR representative. In order to decide if suspension is necessary the following circumstances should be considered: To prevent risk to or be in the best interests of staff or patients. Where serious misconduct or hazard to health & safety is involved and an enquiry into the facts is taking place. The employee appears incapable of undertaking the duties which he/she is required to perform (e.g. through an excess of alcohol/drugs). While an investigation is being carried out if deemed appropriate. While a member of staff is held in custody pending trial on a criminal charge. Alternatives to suspension should always be considered, for example, moving the employee to another work area or changing hours while an investigation takes place. This will not impact on the individuals pay, which will be protected during this period. Managers who do not have the authority to suspend must refer to their Divisional Director or equivalent to obtain such delegated authority. In the event it is necessary to suspend a staff member out of hours authority must be sought from the Manager on call. The Human Resources Business Partner must be informed of any suspension within their Division. There may be occasions when it will be necessary to suspend an accredited representative of a recognised Trade Union. In such cases with the employees agreement the circumstances of the case should be discussed with a full-time official of the union concerned. A meeting should take place with the member of staff at the first opportunity and they should be given the right of representation. If they are unable to arrange this, the meeting should proceed due to the seriousness of the allegation, but the manager must offer an independent witness. The manager must also offer to meet again at a later date with their chosen representation present to reaffirm the points discussed. The suspending manager will be responsible for ensuring that written confirmation of suspension is sent to the employee within 48 hours of the action being taken. This letter will be sent by recorded delivery. Page 19 of 41

20 Appendix C Suspension / Redeployment No record will be kept on the personal file of any suspension where the matter under investigation does not lead to disciplinary action. The suspending manager must inform the following individuals of the suspension; Divisional Human Resources Business Partner, Employees line manager. The Human Resources team will ensure, as appropriate, suspensions are reported to the Trust Board for monitoring. It is then the responsibility of the commissioning manager to monitor suspensions to ensure they are progressing in a timely fashion. Suspensions will be for an initial two week period and beyond for a maximum of no more than four weeks at a time. The suspension must be reviewed on a regular basis, and written confirmation sent to the employee confirming the suspension and on going reason for this. Where an employee falls sick during a period of suspension the normal contractual sick pay entitlements will apply, in accordance with the occupational sick pay scheme (i.e. full/half/no pay depending on the employee's entitlement). Where an employee wishes to take annual leave during a period of suspension, the normal arrangements for the booking of leave will apply with the Investigating Officer also being involved, and will be deducted from any annual leave entitlement. The principles of suspension remain in force whilst on annual leave The commissioning manager should discuss the appropriateness of a referral to Occupational Health department with the employee. Following cessation of a suspension the line manager and employee should agree arrangements to support the return to work. Page 20 of 41

21 Record of Staff Suspension Name of employee Post Pay Band Place of work Division Date of commencement Date of birth Ethnic origin Sex Date Allegation received Nature of allegation Has the reliability of the allegation been assessed? Date suspension commenced Costs (inc. cover arrangements etc.) Name of employee representative Alternative arrangements to suspension considered and reasons for not implementing such arrangements; Reasons for suspension Date Signed: (Suspending Manager) Date Signed (if applicable): (Manager delegating authority to suspending manager) Cc Personal File Human Resources Advisor Divisional Link Employee line manager (if not suspending manager) Page 21 of 41

22 Appendix D Investigation Procedure 1. Purpose The purpose of this procedure is to support managers in approaching investigations around matters of complaint in a consistent manner. It aims to provide a framework, and is not intended to be prescriptive. 2. Roles In most cases the issue/ complaint is most likely to have been raised in the first instance with the manager or a member of the HR team. In all cases it is important that the most appropriate management and HR representatives fulfil the required roles. If the line managers are involved in the complaint, then management representatives outside of the department or division may need to be appointed. 2.1 Commissioning Manager Likely to be the manager to whom the complaint was raised, or the manager who identified the issue requiring investigation. This role is not to be involved in the investigation process other than to instigate its commencement. The commissioning manager will be responsible for providing clear terms of reference to the investigating officer. 2.2 Human Resources Representative Senior member of the HR team who will be responsible for advising and supporting the commissioning manager. This role is not to be involved in the investigation process. 2.3 Investigating Officer The person, often a manager, appointed by the commissioning manager with advice from an HR representative to conduct the investigation. They may be from within the same division or department, or from another part of the Trust (very occasionally, they may come from outside the Trust).It is important that this person has some knowledge of the area involved and has completed the Trust training into incident investigations. This role is responsible for keeping in regular contact with the employee and their representative to advise on progress/ delays in the investigation that might impact any agreed time frames Page 22 of 41

23 Appendix D Investigation Procedure They are also responsible for presenting the management case at any future formal meetings relating to the matter under investigation. The investigating officer s role is purely to establish the facts and report these, it is not to make recommendations or a decision on the next steps. 2.4 HR Advisor A member of the HR team who will be responsible for supporting and advising the Investigating Officer throughout the investigation and any subsequent formal action. They are available to attend any meetings relating to the investigation, and can assist the Investigating Officer with preparation of documentation, meeting records and statements. The HR Advisor is not acting as admin/ secretarial support - the commissioning manager must identify and arrange for such support from within their department/ division. 3. Pre-Investigation 3.1 The commissioning manager should consult the appropriate senior HR representative at the earliest opportunity and discuss the required action, for example - the appointment of the Investigating Officer & HR Advisor. At this stage the commissioning manager should check if the employee has a representative who needs to be involved in the process. Consideration also needs to be given as to whether the matter is so serious or sensitive in nature that action such as suspension, temporary redeployment or to place them on a period of special leave might be suitable, with the appropriate approval. 3.2 The commissioning manager & HR rep then brief the Investigating Officer & HR Advisor to provide all details relating to the issue and to confirm the time-scale for the investigation - the briefing may take the form of a meeting but must be confirmed in writing so that the investigating officer is clear of the terms of reference for the investigation. Page 23 of 41

24 Appendix D Investigation Procedure The commissioning manager must discuss with the investigating officer how their workload can be covered so that they can focus on the investigation and complete this in a timely manner. The commissioning manager should set a time frame for completion, and the investigating officer must ensure all parties are kept informed of the likely time-scales and progression. 3.3 The commissioning manager & HR rep meet with the employee (ensuring they are aware of their right to be accompanied) and advise them of: The nature of the complaint, allegation or issue, providing as much information, statements and documentation possible, subject to confidentiality and agreement with the complainant The relevant HR procedure relating to this, e.g. Disciplinary, Dignity in the workplace, etc The process of the investigation, and that they are required to comply fully with the requirements of the Investigating Officer and HR Advisor, who are conducting this The time scales Any support mechanisms available, such as Occupational Health, TU rep If appropriate, suspension from work, temporary redeployment, or special leave This is then followed up in writing. On occasions it might be more appropriate if the order of steps 3.2 & 3.3 are reversed 4. Investigation The Investigating Officer & HR Advisor should then follow the procedure detailed below in order to produce an investigation report for consideration by the commissioning manager & HR Rep. Page 24 of 41

25 Appendix D Investigation Procedure 4.1 Purpose The Investigating Officer should clarify the nature of the issue, detail the allegations, and ensure that the need for the investigation is clear and defined, they should use the terms of reference provided by the commissioning manager to do this. 4.2 Process The Investigating Officer & HR Advisor should agree how the investigation should be conducted. Asking the following questions will help to decide the best approach: What are the allegations & what information needs collating? Why does the information need to be gathered? Who needs to be spoken to about the issue, and how can they be supported? (witnesses may feel more comfortable if they are accompanied by their TU rep or a work colleague - need to ensure whoever accompanies are not in any way implicated or acting as a witness themselves) Where will the relevant information be found? When does the investigation need to be concluded? How this is all going to be best achieved? Witness Meetings & Statements In addition to gathering relevant information such as documentation, policies and procedures it is likely that individuals will need to be spoken to in relation to the matter. All parties involved in any related meetings are to ensure that the discussions remain confidential and are not discussed outside of the meeting. As part of the investigation it will be necessary to speak to people to establish the facts. In the first instance the Investigating Officer and HR Advisor will need to meet with the employee and then any relevant witnesses to gather the evidence relating to the issue - when arranging meetings care needs to be given in choosing a suitable venue to ensure confidentiality. The Investigating Officer may ask the employee and witnesses for a signed statement prior to meeting with them - the statement needs to be factual & not contain personal opinions. Page 25 of 41

26 Appendix D Investigation Procedure In advance of any meetings the Investigating Officer & HR Advisor will discuss and prepare questions relating to the issues to be raised. The Investigating Officer is responsible for leading the discussions. Following the meeting notes will be issued by the Investigating Officer to reflect the discussion. The employee/ witness will be asked to agree/ make any amendments & sign the meeting notes to confirm they are an accurate reflection of the discussion - it is not necessary to produce verbatim notes Any such notes will be attached to any statement(s) already provided, and will be included in the investigation report. In exceptionally sensitive cases, where agreed from the outset it may be necessary to maintain anonymity - such notes need careful preparation and their name removed. 4.3 Findings On conclusion of all the meetings and collation of all the relevant information the Investigating Officer and HR Advisor should consider all the evidence and provide a response to the allegations raised in relation to the issue. The findings should reflect all the information received during the investigation and therefore provide a balanced view of all the facts. The investigating officer must not make judgements or recommendations, or a decision on the next steps to be taken. The Investigating Officer & HR Advisor should provide a written report to the commissioning manager & HR Rep, which must include copies of all relevant documentation, a timeline of events and statements in the form of appendices. 5. Post Investigation 5.1 The commissioning manager and HR rep will consider the evidence provided in the investigation report and make a decision on the next steps. In order to do this the following should be considered: Is there a formal disciplinary case to answer? Page 26 of 41

27 Is there a training need? Appendix D Investigation Procedure Are there performance/ capability issues? Are there wider issues such as cultural to be addressed? Is there the need to move an individual from their current environment? Is there the need to suspend the employee at this stage pending formal action? 5.2 Where there is no formal action under the Disciplinary Procedure to be taken, the commissioning manager will inform the employee of this. They should be advised of the findings of the investigation, and if any other action is recommended, such as training. This should be followed up in writing and a copy placed on the personal file. A copy of the investigation report is not kept on the personal file. 5.3 Where it is agreed that disciplinary action is required, then the commissioning manager will inform the employee of this. This will be followed up in writing and will detail the hearing arrangements. At this time the employee will be issued with a copy of the investigation report, and asked to submit any additional information, including the names of any witnesses they wish to call, relating to their case at least 2 working days before the hearing. A copy must also be provided to the representative in a timely manner. The Investigating Officer is responsible for meeting with any witnesses they intend to call to the hearing to assist them with preparation. The employee is responsible for making the necessary arrangements for their witnesses to attend. 5.4 The commissioning manager & HR Rep will normally act as the panel at any such hearing, but it does depend on the circumstances (a more senior manager with the appropriate powers of dismissal may be involved). The Investigating Officer and HR Advisor will be required to be in attendance to present the management case. Page 27 of 41

28 Appendix E Checklist Arranging a disciplinary hearing The commissioning manager is responsible for arranging the disciplinary hearing and should make arrangements to ensure the following actions are taken; 1. Preparation 1.1 Notification Notify all parties involved of panel arrangements (identify who is to be involved from investigation report) in writing, at least seven days ahead of the hearing date. Good practice is to allow more time to provide reasonable time for preparation. Ensure the letter advising subject of date informs the employee that they must submit their statement of case and any additional information relating to their case, at least two working days in advance of the hearing. Ensure the employee has been provided with the management statement of case at least seven days ahead of the hearing date. The employees chosen companion, where possible, should be given a say in the time and date of the hearing. If the companion cannot attend on a proposed date the employee can suggest an alternative time and date so long as it is reasonable and it is not more than five working days after the original date. 1.2 Ensure that the Panel membership is considerate to the employee (e.g. a panel comprising a single sex should not be convened to hear allegations involving an employee of the opposite sex). The panel should consist of three members; -Chair (normally the commissioning manager) -HR representative (not involved in investigation) -Third panel member (determined by the chair) Anyone who has been materially involved in the investigation should not be a member of the disciplinary panel. Page 28 of 41

29 Appendix E Checklist Arranging a disciplinary hearing The chair of the panel will determine, with HR advice, whether it would be appropriate to have a note taker present at the hearing and / or if not, who will take notes. It is recommended that for any potential dismissals a note taker is present. Ensure one panel member has the appropriate level of authority (see guidance note A) 1.5 Accommodation Book the following rooms for use throughout the hearing; - main hearing venue - waiting area for staff side - waiting area for management side Arrange refreshments as appropriate e.g. water if hearing is expected to be short or tea/ coffee if expected to last longer etc. 2. Preparation two days prior to hearing 2.1 Circulate upon receipt, additional information submitted for consideration by the panel, to all parties involved in the hearing (employee + representative, investigating officer + supporting HR Advisor, and panel members) Confirm venues Confirm catering 3. Preparation Day of Hearing Ensure do not disturb notice is displayed on the hearing room door Redirect telephones in rooms used for the hearing Arrange furniture to suit hearing Page 29 of 41

30 Appendix E Checklist Arranging a disciplinary hearing 4. Cancellation 4.1 In the event it is necessary to cancel / reschedule a hearing; - notify all attendees - cancel venue - cancel catering - reschedule hearing by following above steps. In the event of the need to reschedule, every effort should be taken to ensure a reasonable time frame, with the rescheduled hearing to be held not more than five working days after the original date. In exceptional cases it may be necessary to hold the disciplinary hearing in the absence of the employee if repeated non attendance/cancellation. Page 30 of 41

31 Appendix E Checklist Arranging a disciplinary hearing Chairman introduces those present states why they are there explains the process of the hearing, (inc. held in accordance with Trust s Disciplinary policy / confidentiality). Acknowledges employees right to be accompanied check all parties have copies of the submitted papers Presentation of Management Side Case Investigating Officer presents their case Investigating Officer calls their witnesses and question them. Staff side question management side witnesses if they wish. Panel question management side witnesses if they wish Staff side question Management side if they wish Panel question Management side if they wish Presentation of Staff Side Case Staff Side present their case Staff side call their witnesses and question them Management Side question Staff Side witnesses if they wish Panel question Staff Side witnesses if they wish Management Side question Staff Side if they wish Staff Side Sum up Panel question Staff side if they wish Management Side Sum up Chairman calls an adjournment for panel to make its decision Everyone, except the panel leaves the room Employee, Representative and Investigating Respondent will then be told of his/her rights Officer called back Musgrove in to hear Park Panels Hospital decision part of Taunton - appeal & Somerset procedure NHS Foundation Trust Page 31 - of letter 41 confirming outcome sent within 5 days