PAIGNTON COMMUNITY AND SPORTS ACADEMY

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1 PAIGNTON COMMUNITY AND SPORTS ACADEMY STAFFING POLICIES DISCIPLINE PROCEDURES Reviewed and updated by the Full Governing Body: March 2013 Next Review due: March 2014 Introduction MODEL DISCIPLINARY PROCEDURES An employer can expect of all members of staff conduct of the highest standard. The disciplinary process is designed to help and encourage members of staff to achieve and maintain acceptable standards. The purpose of a formal procedure is to ensure that when disciplinary action needs to be taken it is both fair and reasonable and is applied equitably and with consistency in every case. The aim will be to resolve issues quickly and at the lowest level of management. In many instances good management practice will prevent recourse to formal disciplinary procedures. Schedule 14 of the Education Act 1996 requires that Governing Bodies establish disciplinary rules and procedures. These procedures must reflect any legal provisions relating particularly to dismissal, the ACAS Code of Practice and Agreement and the basic requirements of natural justice. Natural justice requires that: a) When disciplinary procedures are put in motion the member of staff should know the reason for them. b) The member of staff should be given an opportunity to offer an explanation and to put his/her version and his/her facts forward before any decision is made. c) A disciplinary hearing should be a fair one and conducted free of bias. All cases will be treated on an individual basis and Principal and/or Governing Body will deal with each case as appropriate, depending on the facts of the case, and with the overall objective of protecting the Academy, its pupils and its employees. Disciplinary matters can be complex and use of the Local Authority`s (LA) expertise and experience is recommended at all stages in the process. It is essential when managing disciplinary matters that a clear distinction is made between conduct and issues related to capability. If for any reason Governors wish to amend the models or draw up their own procedures, the draft should be referred to the Human Resources Manager (Children s Services) to ensure that the proposed procedure is legally acceptable. This is important particularly since the LA could not support a procedure that might weaken inherently the position of the Academy and/or the LA in seeking to deal with disciplinary matters in a fair and reasonable manner. S6/ Page 1

2 The aim of any action must, wherever possible, be to achieve improvement and to prevent the need to resort to the next stage of the procedure. The conclusion to either procedure, however, could be dismissal. In any case of disciplinary action, the member of staff has a right to be interviewed and must be given an adequate opportunity to make representation. He/She should be advised of his/her right to be accompanied during the interview by a Trade Union /Professional Association or other Representative and should be encouraged to exercise that right. Failure to establish and to follow a fair procedure could result in a claim for unfair dismissal being brought to an Employment Tribunal. Prospects Academy Trust will normally meet the costs arising from dismissal unless it has good reasons not to do so. Generally `good reason` will be in cases where the advice of the HR Provider has either not been sought or has been sought and not followed. It is the responsibility of the Governing Body to ensure that all members of staff are issued with a copy of the Academy s Discipline and Capability procedures. This must be done when the member of staff is issued with a contract of employment and at any time when disciplinary proceedings are being considered. S6/ Page 2

3 SCHOOLS DISCIPLINARY PROCEDURE: CONDUCT 1.1 This document had been adopted by the Governing Body, being the relevant body, as the procedure for Paignton Community and Sports Academy. This procedure will cover conduct, not issues related to capability which should be handled under the Academy s Capability Procedure (see separate policy). Types of Misconduct Misconduct might be a series of minor offences or a single incident. Misconduct falls into two categories: general misconduct and gross misconduct. The nature and severity of the alleged offence will determine the form of disciplinary action invoked. Gross misconduct will result in either a final written warning or summary dismissal, which may be without notice or with pay in lieu of notice when the nature of the case is such that the Academy cannot allow the individual to continue at work. General misconduct may include: Poor timekeeping Unjustifiable or unauthorised absence from work Misuse or unauthorised use of school equipment, materials or property Misuse of the school s internet and facilities Failure to comply with a lawful and reasonable request from a line manager or supervisor Failure to improve performance after first warning Failure to comply with the Academy s code of conduct for employees Failure to comply with school policies and procedures Gross misconduct may include serious or repeated occasions of the above, or: Theft or malicious damage Submission of false claims for financial reimbursement Illegal use of the school s equipment Threatening behaviour, assault of another employee or member of the public Sexual misconduct Racial misconduct Harassment on grounds of race, gender, disability, sexual orientation, age, religion or philosophical belief Disregard for work rules, particularly relating to safe practices at work Serious breaches of bullying and harassment policy Serious breach of the school s equal opportunities policy Serious breach of health & safety regulations or rules Serious breaches of the data protection act Incapacity through drink or drugs, though consideration must first be given to the councils drugs and alcohol misuse policy 1.2 The Governing Body has delegated to the Principal authority to take disciplinary action in all cases except those involving possible dismissal or including those involving dismissal. The Governors have not delegated authority for dismissals therefore a Governors First Committee will be convened. Leadership Team Members Any Investigation which may involve the conduct of a member of the Leadership Team will be conducted by the Principal. In the event of the Principal being the subject of disciplinary action, the Governing Body will be responsible for the disciplinary procedure. 1.3 If there is the possibility of disciplinary action being taken, the member of staff concerned should be encouraged to consult with his/her trade union/ professional association. No S6/ Page 3

4 disciplinary action will be taken against a member of staff who is a recognised trade union representative (including Academy representatives) until the circumstances of the case have been discussed with a full-time official of the union concerned. 1.4 If the disciplinary matter concerned involves either financial irregularity or a child protection issue the Governors will follow the relevant procedures of the Authority. The Right to Representation Employees have a statutory right to be accompanied at formal disciplinary and appeal hearings by a representative. There is no statutory right to be accompanied at informal discussions or investigatory meetings however council procedure permits a representative to attend investigatory meetings. The representative may be a colleague, trade union representative or an official employed by a trade union. A trade union representative need not be an employee of the Academy but if they are not a fellow worker or an employee of the union the Academy may insist on them being certified by their union as being trained to accompany an employee at a disciplinary or appeal hearing. The representative will be able to address the hearing, put the employee s case and sum it up and respond on the employee s behalf to any views expressed at the hearing. The representative and employee are also able to confer during the hearing. However, the representative is not permitted to answer questions on behalf of the employee or address the hearing if the employee does not wish it, or prevent the employer from explaining their case. Partners, spouses, friends or legal representatives have no statutory or contractual right to be able to accompany individuals. In exceptional circumstances consideration may be given to the employee bringing a companion rather than a representative. This person would not be eligible to represent the employee at the meeting. There is a right to legal representation in cases where the potential consequences of any disciplinary action which could result in an inclusion on list 99. You are advised to seek HR advice in such cases. Individuals should confirm before the meeting whether or not he/she will be accompanied and which witnesses have been called. Reasonable adjustment may be needed for an employee, or their representative, with a disability, for example the provision of a support worker or advocate with knowledge of the disability and its effects. Consideration should also be given to employees who have language or communication difficulties to ensure that they have fair representation throughout the process. This may include ensuring that reasonable adjustments are made in the case of a disabled employee, i.e. By ensuring that the meeting is conducted in a room allowing wheelchair access, or that some form of translation service or alternative format is provided for employees where English is not their first language. 2. EXPLORATORY INTERVIEW 2.1 It should be remembered that the exploratory interview is not a disciplinary interview within the procedure. The exploratory interview forms part of the investigation process (see Section 4 Investigation below). S6/ Page 4

5 2.2 An investigating officer will be appointed to hold an exploratory interview with the member of staff against whom the complaint/allegation has been made. 2.3 At the time of being asked to attend an exploratory interview the member of staff must be informed in writing of the allegations being made and of their right to be represented at the interview. In addition, the member of staff must be issued with a copy of the Academy s current disciplinary procedures. 2.4 If the complaint or allegation is against the Principal, the Chair of Governors will be responsible for initiating the exploratory interview. 2.5 The purpose of the exploratory interview will be to: Establish relevant information and determine whether further investigation is needed before a decision is taken about whether or not a formal hearing is necessary. Provide the member of staff with an opportunity to respond at an early stage. Explain what further steps, if any, are intended to be taken and the likely timescale. 3. SUSPENSION AND ALTERNATIVES Suspension 3.1 The Principal, a Governor nominated by the Chair, or a Committee of the Governing Body, may in consultation with the HR Provider, suspend a member of staff. 3.2 Suspension will be considered: Where this would allow a more objective examination of the circumstances. When alleged misconduct is sufficiently serious that the outcome may be dismissal. Where a member of staff is the subject of a Child Protection / Police investigation and the alleged offence is considered relevant to his/her duties. Where there is a reasonable ground to believe that it would seriously affect the interests of the Academy and/or the individual if he were to remain at work. 3.3 The member of staff should be interviewed at the same time when consideration is being given to suspension and must be given an adequate opportunity to offer reasons why he/she should not be suspended. The interview should cover the allegations, notification that an investigation will be carried out and the likely timescale. The member of staff should be encouraged to be represented, usually by the Union Representative, at this interview. 3.4 Where, following an interview, a suspension is imposed the following steps will be taken. A school colleague who is unconnected with the issue will be given responsibility for maintaining contact with the member of staff during the period of his suspension. S6/ Page 5

6 The suspension must be confirmed in writing within 5 working days, including details of the reasons and the anticipated timescale before the member of staff can expect to be advised of any further action. The suspension will be reported as quickly as possible to the Governing Body, and Prospects Academy Trust. The suspension must not be too lengthy as this could damage the education of pupils and the well-being of the member of staff concerned. The length of the suspension must therefore be closely monitored for its reasonableness. 3.5 Where suspension is imposed it can only be removed by the Governing Body. Alternatives to Suspension Suspension is a very serious step that must be given careful consideration. It may be appropriate to consider alternatives to suspension that will also allow for an objective investigation. Alternatives may include: A temporary transfer to alternative duties. Working from home or other location. A period of leave. Any alternative action to suspension that is taken must not be too lengthy as this could damage the education of pupils and the well being of the member of staff concerned. The length of the alternative to suspension must therefore be closely monitored for its reasonableness. 4. INVESTIGATION 4.1 If the Principal is exercising delegated responsibility for dealing with staffing matters including dismissals he/she will normally commission an investigation which will be undertaken by the Deputy Principal or another senior member of staff. Where it would be inappropriate for the Principal, Deputy Principal or other senior member of staff to conduct the investigation, an HR Advisor will assist. For example, it would be inappropriate for a member of the Academy staff to undertake the investigation if he/she were the subject of, or party to, the allegation which were to be investigated. 4.2 Where, as part of an investigation, it is necessary to interview pupils, their parents/carers will be advised and their consent obtained. The member of staff s representative will have the opportunity to be present at the pupil s interview. 4.3 The Investigating Officer will ensure that other people being interviewed are told the nature and purpose of the investigation, that written notes or statements will be taken and that these may be used at a disciplinary hearing. 4.4 The Investigating Officer's report on the outcome of the investigation will enable the person considering the allegation to decide whether or not to proceed with a formal hearing. 4.5 A meeting will be arranged with the member of staff to explain what further steps, if any, are intended to be taken and the likely timescale. S6/ Page 6

7 5. DISCIPLINARY HEARING HEARD BY THE PRINCIPAL Procedures to be followed in cases heard by the Principal (including possible dismissals where the Principal is granted delegated authority). 5.1 The Principal will convene the hearing. 5.2 The member of staff will be given at least 10 working days' notice of the hearing. A Human Resources Adviser will be invited to attend. (e) (f) (g) The employee must be advised in writing of the date, time, place of hearing, who will be involved, the nature of the complaint being made, copies of any supporting information, including statements taken as part of an investigation. The employee should be advised of the potential consequences of any disciplinary action. Notification of the right to have a representative present at the hearing. The employee must also be advised that should they, or their trade union on their behalf, want to submit any additional information or requests prior to the meeting, ie calling of witnesses, this should be done at least two working days in advance of the meeting to the disciplining officer. ( in exceptional circumstances the disciplining officer may accept late submissions provided they have been informed that there will be additional information and understand the reasons for this.) Should they wish to invite any witness(es) they must be notified in sufficient time to allow them to attend in light of working patterns. This letter should be sent to the employee at least 10 working days prior to the date of the hearing. A further copy should be sent to the employee's representative. Accompanying information should be sent at that time or as soon as it becomes available, and in any case prior to the date of the hearing. 5.3 The format of the disciplinary hearing will be as follows. The Principal will introduce the parties and give brief details of the allegations made. He/she will have the opportunity to ask questions of both parties and their witnesses throughout the hearing. The Investigating Officer will then be asked to set out the allegations and go through the investigatory report. Witnesses may then be called to give evidence in the presence of the member of staff and his representative. The member of staff and his/her representative will have the opportunity to put questions to either the Investigating Officer and/or the witnesses. The member of staff and his representative will put his/her case, calling witnesses as necessary. The Investigating Officer will have the opportunity to put questions to the member of staff, his/her representative and/ or the witnesses. The Human Resources Adviser may ask questions and offer advice as necessary. S6/ Page 7

8 (e) (f) (g) Both parties will have the opportunity to summarise their cases, provided new information is not introduced, with the member of staff or his/her representative making the final submission. All parties, except for the Human Resources Adviser, will withdraw to enable the Principal to reach his/her decision. Any of the parties who have given evidence may be recalled to clear points of uncertainty. If recall of a witness is necessary the member of staff and representative, together with the Investigating Officer, will also return. Having considered the matter the Principal will announce the decision orally to the member of staff having due regard for each allegation. 5.4 The decision will be confirmed in writing within 5 working days. If that decision is to issue a written warning, the member of staff will be advised of the grounds of the action taken and, where appropriate, how long the warning will remain on file and the consequences of any recurrence together with details of any remedial action required. The letter will also contain details of their right of appeal. The Disciplinary Decision 5.5 Following a Disciplinary hearing there must be a decision on what action, if any, should be taken. It must be appropriate to the circumstances of the case and the seriousness of the "offence" The following courses of action are available: to take no action; a first written warning i.e: where there has been a repeated minor breach in conduct or a first but more serious breach of discipline. The member of staff should be advised that a failure to improve or a repetition of the misconduct may result in further disciplinary action; there is a right to appeal against a formal written warning. Loss of TLR Responsibility i.e: where appropriate the Committee may wish to invoke a loss of TLR responsibility and payment for that responsibility where a written warning is issued or a final written warning is issued. a final written warning i.e: where there has been an insufficient response to previous warnings and conduct is still unsatisfactory or in the case of a first but serious breach of discipline. This warning must state that failure to improve or any repetition may result in dismissal; there is a right to appeal against a final written warning. 6. DISCIPLINARY HEARING FIRST COMMITTEE Procedures to be followed in cases heard by the Governing Body in instances of potential dismissal where the Principal has not been granted the delegated authority to dismiss and the case is to be heard by a panel consisting of either the Principal and Governors or a Panel of Governors or where the Principal is the subject of the Disciplinary Hearing. 6.1 A First Committee of the Governing Body will be convened to undertake the hearing. 6.2 The member of staff will be given at least 10 working days' notice of the hearing. A Human Resources Adviser will be invited to attend. S6/ Page 8

9 (e) (f) (g) The employee must be advised in writing of the date, time, place of hearing, who will be involved, the nature of the complaint being made, copies of any supporting information, including statements taken as part of an investigation. The employee should be advised of the potential consequences of any disciplinary action. Notification of the right to have a representative present at the hearing. The employee must also be advised that should they, or their trade union on their behalf, want to submit any additional information or requests prior to the meeting, ie calling of witnesses, this should be done at least two working days in advance of the meeting to the disciplining officer. (in exceptional circumstances the disciplining officer may accept late submissions provided they have been informed that there will be additional information and understand the reasons for this.) Should they wish to invite any witness(es) they must be notified in sufficient time to allow them to attend in light of working patterns. This letter should be sent to the employee at least 10 working days prior to the date of the hearing. A further copy should be sent to the employee's representative. Accompanying information should be sent at that time or as soon as it becomes available, and in any case prior to the date of the hearing 6.3 The format of the disciplinary hearing will be as follows. (e) (f) (g) (h) The Chairman of the Hearing will introduce the parties and give brief details of the allegations made. The Investigating Officer will then be asked to set out the allegations and to go through the investigatory report. Witnesses may then be called to give evidence in the presence of the member of staff and their representative. The member of staff and their representative will have the opportunity to put questions to the Investigating Officer and/or witnesses. The member of staff and his representative will put their case, calling witnesses as necessary. The Investigating Officer will have the opportunity to put questions of the member of staff, his/her representative and/or witnesses. The Committee will have the opportunity to ask questions of both parties and their witnesses throughout the hearing. The Human Resources Adviser may ask questions and offer advice as necessary. Both parties will have the opportunity to summarise their cases, provided new information is not introduced, with the member of staff or his/her representative making the final submission. Those who are not part of the Committee, other than the Human Resources Adviser, will withdraw to enable the Committee to reach a decision. If further clarification is required on any point, all the parties will be recalled. Having considered the matter the Chairman will announce the decision orally to both parties. S6/ Page 9

10 6.4 The decision will be confirmed in writing within 5 working days. If that decision is to issue a warning the member of staff will be advised of the ground for the action taken, how long the warning will remain on file, the consequences of any recurrence and details of any remedial action required. If the decision is to dismiss, the recommendation will be formally communicated to Prospects Academy Trust who will give notice of the termination of employment (taking note of whether the Member of staff has lodged an appeal or not). The written notification to the member of staff will contain details of the right of appeal. 7. THE DISCIPLINARY DECISION 7.1 Following a Disciplinary hearing there must be a decision on what action, if any, should be taken. It must be appropriate to the circumstances of the case and the seriousness of the "offence" The following courses of action are available: to take no action; a first written warning i.e: where there has been a repeated minor breach in conduct or a first but more serious breach of discipline. The member of staff should be advised that a failure to improve or a repetition of the misconduct may result in further disciplinary action; there is a right to appeal against a formal written warning. Loss of TLR Responsibility i.e: where appropriate the Committee may wish to invoke a loss of TLR responsibility and payment for that responsibility where a written warning is issued or a final written warning is issued. a final written warning i.e: where there has been an insufficient response to previous warnings and conduct is still unsatisfactory or in the case of a first but serious breach of discipline. This warning must state that failure to improve or any repetition may result in dismissal; there is a right to appeal against a final written warning. (e) Dismissal with Notice i.e: where following a final written warning conduct remains unsatisfactory and the member of staff still fails to reach and maintain the prescribed standards or in the case of a first but very serious breach of discipline; there is a right to appeal against dismissal. (f) Summary Dismissal i.e: dismissal without notice. This would only be appropriate in cases of gross misconduct which irreparably damages the employer's trust in the member of staff's ability to fulfil the terms of the contract. There is a right to appeal against dismissal. Dismissal due to Gross Misconduct The effective date of termination for an employee who is summarily dismissed for gross misconduct is the date that the employee is made aware of the termination. It is therefore necessary for the line manager to verbally communicate to the employee that their decision is one of dismissal. S6/ Page 10

11 8. APPEAL 8.1 The member of staff has the right to appeal against a decision to take away TLR Responsibility, issue a formal written warning, to issue a final written warning or notice of dismissal. 8.2 The Appeal can only be heard once, as indicated below: Hearing heard by Principal Hearing heard by Governors First Committee Governors Appeals Committee Governors Appeals Committee 8.3 A member of staff wishing to exercise his right of appeal must notify the Clerk to Governors, in writing, within 10 working days of receipt of the written confirmation of disciplinary action. The member of staff must provide a Statement of Case and any supporting information to the Clerk of the Governing Body 5 working days in advance of the hearing. It is expected that no new information can be presented at the Hearing. 8.4 At an Appeal Hearing the member of staff has the right to appear personally before the panel, either alone or accompanied by a representative. If the member of staff so wishes the representative need not be the same person who acted at the time disciplinary action was taken. 8.5 Both parties will be required to submit written statements of the case, together with any supportive evidence at least 10 days before the Appeal Hearing is due to take place. The Principal / First Committee s representative should set out the reasons for the disciplinary action taken. It should be sufficiently detailed to enable the member of staff to understand on what basis the decision was reached, and to prepare their own case for defence. The member of staff s statement should set out clearly the grounds on which they are contesting the disciplinary sanction. Both parties should provide details of any witnesses they intend to call and brief their own witnesses. Witnesses will not normally be requires to be in attendance for the whole of the Appeal Hearing. They will normally be called to give evidence and then discharged. However, at the discretion of the person hearing the Appeal after consultation with both parties, it may be agreed as appropriate for certain witnesses to be present for the duration of the Hearing. As soon as both statements have been received they should be simultaneously circulated to: Panel members hearing the Appeal. Principal / First Committee representatives Member of staff If only one side produces a statement it only goes to the Panel. 8.6 The following applies in the case of appeal against dismissal: if the member of staff decides not to appeal or appeals and then withdraws it Prospects Academy Trust must be notified and will then dismiss with or without notice as appropriate within 14 days S6/ Page 11

12 if he/she exercises their right to appeal and the appeal goes ahead it must be determined by the Appeals Committee and a decision reached. If the original decision to dismiss is upheld, Prospects Academy Trust must be notified and Prospects Academy Trust will then dismiss with or without notice as appropriate within 14 days. 8.7 The format of the appeal will be as follows. (e) (f) (g) (h) (i) (j) (k) The Principal/First Committee s representative will put the case in the presence of the member of staff and/or his/her representative and may call witnesses. The member of staff and/or his/her representative will have the opportunity to ask questions of the Principal/First Committee s representative on the evidence given by him/her or by any witness called. The Appeals Committee may ask questions of the Principal/First Committee s representative and witnesses. The member of staff and/or representative will put their case in the presence of the Principal/First Committee s representative and may call witnesses. The Principal/First Committee s representative will have the opportunity to ask questions of the member of staff and any witnesses. The Appeals Committee may ask questions of the member of staff and any witnesses. The Human Resources Adviser may ask questions and offer advice as necessary. The Principal/First Committee s representative will have an opportunity to sum up his/her case but will not be allowed to introduce any new evidence. The member of staff and/or representative will have an opportunity to sum up their case but will not be allowed to introduce any new evidence. Those who are not part of the Committee, other than the Human Resources Adviser, will withdraw to enable the Committee to reach a decision. If further clarification is required on any point, all the parties will be recalled. Having considered the matter the Appeals Committee Chairman will announce the decision orally to both parties. 8.8 The decision will be confirmed in writing within 5 working days. If the decision is anything other than to uphold the appeal, the letter will need to clarify the grounds for the action taken, how long the warning will remain on file, the consequences of any reoccurrence and, where appropriate, any remedial action required. If the appeal is upheld, the letter will only convey the grounds for the action taken. 8.9 In the event that the decision upholds a dismissal, this will be formally communicated to Prospects Academy Trust. Monitoring should include all school employees subject to disciplinary procedures, irrespective of the outcome of the procedure. S6/ Page 12

13 Flowchart Allegation/ Incident/ Problem For allegations of physical, sexual or emotional abuse of children by employees refer to separate procedure in the guidance documents. Principal/Line Manager to establish what is known and consider appropriate initial response, i.e. sending home if appropriate. Investigation to be undertaken and completed Principal/Line Manager to involve independent person if the allegation is serious or complex. DISCIPLINARY HEARING HELD Employee notified if no further action. Employee notified of disciplinary interview and their right to be accompanied, etc (see further notes below*). Investigation undertaken and report to Principal/Line Manager. Decision of disciplinary hearing. e.g. first written warning, final written warning, dismissal, or other penalty. APPEAL PROCESS * The individual will be asked to attend an interview by letter and will receive at least ten working days notice. The letter will clearly state the purpose of the interview, give details of the incident and allegations, and who will be conducting the interview. The letter will include the right to representation and also the potential consequences of any action. The letter will also contain copies of statements, which will be referred to in the interview. The employee should be asked to complete an equal opportunities form on receipt of this letter and to return it to the relevant person. Following the investigation, and receipt of the equal opportunities form, the relevant person will complete the spreadsheets. Monitoring Under the Equality Act 2010 and equal opportunities policies, the Academy will monitor all its policies and employees involved in this process to ensure compliance and fairness for all employees. There is an obligation to monitor by racial group, disability and gender any employee against whom disciplinary action has been taken. Managers must ensure that Prospects Academy Trust are notified of all actions under this policy for equality monitoring purposes. S6/ Page 13