INSERT TITLE AND BRANDING Dr A Gill s signature and front cover to be placed on policy when received from Communications. (Policy fully ratified)

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1 Disciplinary Policy INSERT TITLE AND BRANDING Dr A Gill s signature and front cover to be placed on policy when received from Communications. (Policy fully ratified) Consultation Staff Forum August 2014 Union Agreement Alan Turrell, Head of Contracting & Procurement Organisational Development Committee Ratification Date 20 November 2014 Disciplinary Policy August 2014 v4.0 Page 1 of 12

2 DISCIPLINARY POLICY The Organisational Development Committee approved this document on: Date: November 2014 Signed: Signed: Chair of the committee Designated Senior Officer Please note that the Intranet version of this document is the only version that is maintained. Any printed versions should therefore be viewed as uncontrolled and may not be the most up-to-date. Version: V 4.0 Status Ratified CCG Lead Yvette Sheward Strategic Lead for Integrated Governance and Organisational Development Senior Officer responsible Yvette Sheward Strategic Lead for Integrated Governance and Organisational Development Ratified by: OD Date ratified: November 2014 Date Policy is Effective From Date of ratification Review date: August 2017 Expiry date: November 2017 Date of Equality and Diversity Impact Assessment Date of Health Inequalities Impact Assessment Target audience: CCG staff and staff working for the CCG National Documents CCG linked documents Distribution of the document Implementation of the document Document Control and Archiving Intranet Obsolete or superseded documents will be removed from the intranet and where relevant replaced with an updated version. Previous versions will be archived in the safeguard system in accordance with Disciplinary Policy August 2014 v4.0 Page 2 of 12

3 Monitoring Compliance and Effectiveness References the Records Management NHS Code of Practice; disposal and retention schedule. CONTRIBUTION LIST Key individuals involved in developing the document Name HR CSU West Midlands Union Representatives Staff Council Yvette Sheward Designation Circulated to the following for consultation Name/Committee/Group/ Staff Council Organisational Development Designation Comments received from consultation Name/Committee/Group Comments Version Control Summary Version Date Comments on Changes Author Disciplinary Policy August 2014 v4.0 Page 3 of 12

4 Contents POLICY OVERVIEW... 3 Purpose... 3 Who this Policy applies to... 3 Key Principles... 3 Legal Considerations... 3 SUPPORTING PRINCIPLES... 4 THE POLICY... 5 Informal Discussions... 5 Professional Registration... 5 Establish the facts of each case... 5 Suspension... 6 Inform the employee of the problem... 6 Hold a hearing with the employee to discuss the problem... 7 Allow the employee to be accompanied at the hearing... 7 Decide on appropriate action... 8 Scheme of Delegation Provide employees with an opportunity to appeal Action against Union Representatives Support to Staff Conduct outside of work Disciplinary Policy August 2014 v4.0 Page 4 of 12

5 POLICY OVERVIEW Disciplinary Policy Purpose In order to operate effectively, high standards for performance and conduct are expected from all our staff. Cases of minor misconduct or unsatisfactory behaviour are usually best dealt with informally. This policy aims to ensure that where some form of formal action is needed, issues are dealt with promptly, fairly and consistently. Who this Policy applies to The policy applies to all staff that are employees of the organisation in either a permanent, fixed term or temporary post with the exception of Bank and agency staff. For Doctor's and Dentist's, referral must be made to the Disciplinary procedure for Medical Staff and the Department of Health 'Maintaining High Professional Standards in the Modern NHS' document. Key Principles Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions. Informal action will be considered, where appropriate, to resolve problems. For formal action the employee will be advised of the nature of the allegations against him or her and will be given the opportunity to state his or her case before any decision is made at a disciplinary hearing. Employees will be provided, where appropriate, with written copies of evidence and relevant witness statements in advance of a disciplinary hearing. Employers should allow an employee to appeal against any formal decision made. Legal Considerations The ACAS Code of Practice on disciplinary and grievance procedures sets out principles for handling disciplinary and grievance situations in the workplace. Employment tribunals are legally required to take the Code into account when considering relevant cases. Most of the provisions governing unfair dismissal are to be found in the Employment Rights Act 1996 as amended. Numerous other pieces of legislation cross refer to unfair dismissal issues. Disciplinary Policy August 2014 v4.0 Page 5 of 12

6 SUPPORTING PRINCIPLES Disciplinary Policy Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions. Employers and employees should act consistently. Informal action will be considered, where appropriate, to resolve problems. For formal action the employee will be advised of the nature of the allegations against him or her and will be given the opportunity to state his or her case before any decision is made at a disciplinary hearing. Employees will be provided, where appropriate, with written copies of evidence and relevant witness statements in advance of a disciplinary hearing. No employee will be dismissed for a first breach of discipline except in the case of gross misconduct, when the penalty will be dismissal without notice or payment in lieu of notice. The procedure may be implemented at any stage if the employee's alleged misconduct warrants this. Employers should carry out any necessary investigations, to establish the facts of the case. Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made. Employers should allow employees to be accompanied at any formal disciplinary meetings. Employers should allow an employee to appeal against any formal decision made. Where issues of misconduct cannot be resolved informally or it is inappropriate to do so the formal disciplinary procedure may be used. Disciplinary Policy August 2014 v4.0 Page 6 of 12

7 THE POLICY Disciplinary Policy The policy below provides the overarching principles of managing any misconduct. In addition to the policy there is a user s guide which provides more details on each stage of the process and includes how to guide. It is essential that whenever considering any disciplinary action (formal or informal) that both the Policy and the Guide are read and understood. Informal Discussions Wherever possible, an initial discussion should be held between the employee and their manager. It is in everyone s best interest for an issue to be dealt with quickly and fairly at the lowest possible level and we hope that the majority of concerns will be resolved at this stage. The employee and the manager should keep a note of the discussion. Professional Registration Where an individual is required to have professional registration to undertake their role and fails to maintain this registration this could be considered a disciplinary act and will be considered under this policy. Where an individual is registered under a professional body and is being managed under the disciplinary policy consideration must be given about whether it is appropriate to make a referral to the professional body. Advice should always be sought from HR where disciplinary action is being considered for someone with professional registration. Establish the facts of each case It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigation meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing. Advice should be sought from HR in all cases where disciplinary action is being considered to ensure compliance with the policy and a fair process and investigation is undertaken. It is important to note that if an employee is charged with, or convicted of a criminal offence this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee s suitability to do the job and their relationship with their employer, work colleagues and patients. In misconduct cases different people should carry out the investigation and the disciplinary hearing. However, the manager may conduct an initial investigation and decide that a Disciplinary Policy August 2014 v4.0 Page 7 of 12

8 hearing is not appropriate based on the facts of the investigation. In this case the manager can discuss with the individual the concerns at an informal stage. If there is an investigatory meeting this should not by itself result in any disciplinary action. Employees will be allowed to be accompanied at a formal investigatory meeting under this policy. The investigation report should be written up in full and the recommendations should indicate whether the investigating officer believes there is a case to answer and whether dismissal could be a consideration due to gross misconduct or previous warnings issued. The recommendation should be considered when arranging the hearing and ensuring the most appropriate hearing panel is arranged. Where the investigation does not find a case to answer or the recommendation is not to have a hearing the report will be submitted to the head of service for review with the individual. The head of service can discuss the findings and outcomes with the individual and discuss and actions to take to ensure that allegations of this type are not made again. This will be confirmed in writing to the individual and placed on the personal file. No sanction can be issued at this meeting. Suspension Suspension is not a disciplinary sanction and carries no assumption of guilt. It is a means of protecting the interests of the staff member and the organisation whilst the investigation is taking place. Where the allegation could be an act of Gross misconduct suspension may be the only appropriate action to take to protect the individual and the organisation. Where a criminal investigation is being undertaken by the Police or NHS protect* consideration should be given to whether suspension is appropriate during the length of the investigation whilst any criminal activity is investigated In cases where a period of suspension with pay is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action. Further guidance on suspension can be found in the user s guide. Inform the employee of the problem If it is decided that there is a disciplinary case to answer following the investigation and fact finding, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct and its possible consequences to enable the employee to prepare to answer the case at a disciplinary hearing. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification. *NHS Protect leads on work to identify and tackle crime across the health service, more information is available via August 2014 Page 6 of 12

9 The notification should also give details of the time and venue for the disciplinary hearing and advise the employee of their right to be accompanied at the hearing. Where the investigation has found that there is no case to answer or there is insufficient evidence to support the allegations the report and recommendations should be submitted to the head of service. The head of service will then meet with the individual to discuss the findings and agree any appropriate action plan. The outcome of these discussions will be placed on the personal file to confirm that there was no case to answer and the agreed actions. Hold a hearing with the employee to discuss the problem The hearing should be held without unreasonable delay whilst allowing the employee reasonable time to prepare their case. Employers and employees (and their companions) should make every effort to attend the hearing. Consideration should be given as to whether a hearing can be conducted without the employee should the hearing not be arranged within a reasonable timescale and upon offering of two separate hearing dates. At the hearing the employer should explain the complaint against the employee and go through the evidence that has been gathered. The employee should be allowed to set out their case and answer any allegations that have been made. The employee should also be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses. Where an employer or employee intends to call relevant witnesses they should give advance notice that they intend to do this. The scheme of delegation for a hearing panel can be found below and varies depending on the potential outcome of the hearing. Where the outcome of the hearing could be dismissal the employee should be informed of this in the letter inviting him to the hearing. Allow the employee to be accompanied at the hearing This policy gives workers the right to be accompanied by a companion at each stage of the process. The chosen companion will be a fellow worker, a trade union representative, or an official employed by a trade union. A trade union representative who is not an employed official must have been certified by their union as being competent to accompany a worker. Legal representation is not permitted at any part of the disciplinary process. Employees must make a reasonable request to be accompanied and what is reasonable will depend on the circumstances of each individual case. However, it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site. Nor would it be reasonable for the worker to delay proceedings because their chosen companion was not available within a reasonable time scale (usually within 5 working days of the original meeting). August 2014 Page 7 of 12

10 The companion should be allowed to address the hearing to put and sum up the worker s case, respond on behalf of the worker to any views expressed at the hearing and confer with the worker during the hearing. The companion does not, however, have the right to answer questions on the worker s behalf, address the hearing if the worker does not wish it or prevent the employer from explaining their case. Decide on appropriate action At the hearing the panel will be able to consider a number of sanctions, outcomes and actions and this will be dependent on the seriousness of the misconduct, the investigation case, any mitigations or previous records of misconduct. The panel can consider the following outcomes: Sanction Consideration Live record No action justified The investigation does not present n/a enough evidence to suggest or warrant any further sanction to be given First Written Warning A written warning is usually given in cases of less serious conduct, where no current warning is on file 12 months Final Written Warning Action short of dismissal A final written warning would normally be given if there is - As accumulation of minor offences - A failure to respond to a first written warning - A repeat of an act of misconduct during the life of a first written warning - A more serious offence This option can be considered where a final written warning on its own, would not be considered as a sufficient sanction and further additional action needs to be taken, however dismissal would not be considered appropriate or this option may be consider if the conduct is considered gross misconduct however alternatives to dismissal have been considered. In both cases, these alternatives may include some of the following options on a permanent or Placed on employees file for Placed on employees file for 24 months Records remain on employees file for at least 24 months and dependent on the action taken August 2014 Page 8 of 12

11 temporary basis: Demotion Redeployment to another team or service Restriction of duties Training Performance Management Dismissal Dismissal will occur if: The staff member commits an act of gross misconduct The required improvements have not been made following a final written warning There has been a further act of misconduct during the life of a final written warning. Dismissal may be with notice or summary dismissal for gross misconduct. Summary dismissal is without notice and will be with immediate effect This outcome will remain on the employees file in line with the retaining of records guidance as an ex employee The outcomes available to the panel for consideration could be sequential i.e. first action are a written warning then a further breach of the same act within the live record period is a final written warning. The panel can also decide to issue a final written warning or dismissal without first issuing a first written warning if they consider the act to be of a serious enough nature. Where an individual is required to have professional registration consideration should be given to the requirement to notify the professional body where any disciplinary sanction has been issued. Where a dismissal has taken place the relevant professional body must be notified of this. After the hearing decide whether or not disciplinary or any other action is justified and inform the employee accordingly in writing within 5 working days of the hearing. As detailed in the table above where misconduct is confirmed it is usual to give the employee a written warning. A further act of misconduct within a set period would normally result in a final written warning. If an employee s first misconduct or unsatisfactory performance is sufficiently serious, it may be appropriate to move directly to a final written warning. This might occur where the employee s actions have had, or are liable to have, a serious or harmful impact on the organisation. August 2014 Page 9 of 12

12 A first or final written warning should set out the nature of the misconduct and the change in behaviour (with timescale). The employee should be told how long the warning will remain current. The employee should be informed of the consequences of further misconduct within the set period following a final warning. For instance that it may result in dismissal or some other contractual penalty such as demotion or loss of seniority. A decision to dismiss should only be taken by a manager who has the authority to do so. The employee should be informed as soon as possible of the reasons for the dismissal, the date on which the employment contract will end, the appropriate period of notice and their right of appeal. Some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence. But a fair disciplinary process should always be followed, before dismissing for gross misconduct. Examples of acts considered gross misconduct are listed below however this list is not exhaustive: theft or fraud proven investigation by NHS protect relating to theft or fraud physical violence or bullying deliberate and serious damage to property serious misuse of an organisation s property or name deliberately accessing internet sites containing pornographic, offensive or obscene material serious insubordination unlawful discrimination or harassment bringing the organisation into serious disrepute serious incapability at work brought on by alcohol or illegal drugs causing loss, damage or injury through serious negligence a serious breach of health and safety rules a serious breach of confidence Where an employee is persistently unable or unwilling to attend a disciplinary meeting or hearing without good cause the employer should make a decision on the evidence available. Scheme of Delegation When considering any disciplinary action it is important to ensure that the most appropriate person makes the decisions for the organisation. The below table details the scheme of delegation for each aspect of the disciplinary policy: August 2014 Page 10 of 12

13 Action Suspension First Written Warning, Final Written Warning, Action Short of Dismissal Or Dismissal Appeal Delegation The most senior manager available on site at the time with advice from HR and authorisation provided on the phone from an executive director Head of service and HR Executive Director, Senior HR, Senior Manager independent from the investigation Executive Director, Senior HR and Senior Manager not involved in the dismissal decision Where there is a potential dismissal of an Executive Director consideration will be given as to the most appropriate membership of the panel which may include support and a Director from the Local Area Team who will be given delegated responsibilities to make the decision on behalf of the CCG. Provide employees with an opportunity to appeal Where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision. Appeals should be heard without unreasonable delay and ideally at an agreed time and place. Employees should let employers know the grounds for their appeal in writing. The appeal should be dealt with impartially and wherever possible, by a manager who has not previously been involved in the case. Workers have a statutory right to be accompanied at appeal hearings. Employees should be informed in writing of the results of the appeal hearing as soon as possible. Following an appeal the original decision may be confirmed, revoked or replaced with a different decision. The final decision will be confirmed in writing, if possible within 7 working days of the appeal meeting. There will be no further right of appeal. The date that any dismissal takes effect will not be delayed pending the outcome of an appeal. However, if the appeal is successful, the decision to dismiss will be revoked with no loss of continuity or pay. August 2014 Page 11 of 12

14 Action against Union Representatives Where disciplinary action is being considered against an employee who is a trade union representative the normal disciplinary procedure should be followed. Depending on the circumstances, however, it is advisable to discuss the matter at an early stage with an official employed by the union, after obtaining the employee s agreement. Support to Staff It is recognised that being part of any disciplinary process can be an anxious time for any individual and therefore it is important that they are also provided with support during any investigation. It is the responsibility of the manager to provide the individual with details about occupational health, staff counselling and HR who can all provide support to the individual. Conduct outside of work All employees of the CCG have a responsibility to live the values of the organisation and act responsibly on behalf of the public organisation. Where conduct outside of the workplace could be considered as damaging the reputation of the CCG or not upholding the values of the organisation this could be considered a matter of misconduct under the disciplinary policy. Consideration will be given to: - the use of social media and networks - the link between the individuals external behaviour and the ability for them to undertake their role in the CCG - the distribution and knowledge of the conduct - the relevance to the individuals role - membership of an extreme or radical political party where the actions of the individual as a member of this party would not uphold the values of the organisation August 2014 Page 12 of 12

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