INSPIRE MULTI-ACADEMY TRUST

Transcription

1 INSPIRE MULTI-ACADEMY TRUST DISCIPLINARY POLICY Document Title Disciplinary Policy Revision Number: 1.0 Approved by: InMAT Board Approval Date: Review Frequency: Every Two Years Review Date: Oct 19 1

2 Approval Authorisation Authorised by CEO of InMAT Signature: Print: Gaynor Crute Date: Revision Date Comments 2

3 DISCIPLINARY POLICY Contents Page DISCIPLINARY POLICY 1. Introduction 4 2. Scope 4 3. Principles 4 4. Misconduct 6 5. Criminal Offences and Cautions outside of Work 6 6. Suspension Suspensionj Terms 8 7. Right to be Accompanied 9 8. Grievances raised during the Disciplinary Process 9 9. Action against Trade Union/Professional Association Professional Record keeping 9 DISCIPLINARY PROCEDURE Informal 11 Identifying the Need for Formal Disciplinary Actiion Formal Initial Meeting Investigation Convening a Disciplinary Hearing Attendance at the Hearing Procedure at the Disciplinary Hearing Disciplinary Outcomes Currency of Warnings Hearing Outcome Right of Appeal Appeal Hearing 22 Appendix 1 Disciplinary Rules and Guidance 24 3

4 Appendix 2 Conducting the Disciplinary Hearing 27 DISCIPLINARY POLICY 1 INTRODUCTION This document sets out The Trust s Policy and Procedure for considering and acting upon disciplinary concerns and will be applied when an employee s conduct potentially falls below the required standards. It aims to help and encourage all employees to achieve and maintain the required standards of conduct and to provide an objective, consistent and fair approach to dealing with discipline issues involving the Trust and Individual Academy, taking account of the rules of natural justice. It is not, however, intended to replace or restrict the normal day to day management and supervision of employees in relation to performance or conduct. The document takes account of employment legislation and best practice guidelines in relation to discipline matters in addition to the legal obligations of Governing Bodies including the Employment Act 2008, Employment Rights Act 1996 as amended, Employment Rights (Dispute Resolution) Act 1998 as amended, Employment Relations Act 1999, Employment Rights Act 2004, the Equalities Act 2010 and the ACAS Code of Practice on Discipline and Grievances at Work 2008 as amended, The European Human Rights Act. 2 SCOPE This document applies to all Trust employees. This policy and procedure will not be used to address issues where other policies and procedures exist to deal with them. This policy and procedure does not apply to staff within their period of probationary service; however as far as is reasonably possible the principles and practices embodied in this policy will be reflected in any probationary process. Any alleged misconduct which falls within the scope of the Management of Allegations policy or equivalent requires the employer to comply with additional child protection requirements as set out in that policy. Additional regard will also be made where any alleged misconduct, of any nature, may more properly be referred to the appropriate legal enforcement agency. 3 PRINCIPLES 4

5 The Governing Body should record the formal adoption of the policy and procedure and the delegation of authority to the Principal to take disciplinary action short of dismissal. In the event of the Principal being subject to disciplinary action, the Governing Body will be responsible for administering the procedure. The Chair of the Governing Body or an appropriately delegated person from the Trust may have authority to take action short of dismissal in cases of the Principal being subject to the disciplinary procedure. The Governing Body and Principal are responsible for the overall day to day management of standards in their Academy. The Trust, should be consulted, as far as is reasonably possible, at all formal stages of the disciplinary procedure and must either be in attendance at hearings where dismissal is being considered or be otherwise formally consulted through their delegated representative or appropriate means of informed communication. All disciplinary procedures will be applied to meet the requirements of the Academy s Equal Opportunities Policy, as informed by Trust policy, in order to ensure that employees are not discriminated against. Where appropriate, conduct issues should be addressed without the need to commence the formal stages of the procedure, except where the alleged misconduct is of a more serious nature or where a pattern of minor informal reprimands develops or a prior history of formal outcomes of procedure are relevant. In order to support this, the Academy will, as appropriate and reasonably possible operate a system of issuing management advisory or warning notices. If there is the possibility of disciplinary action being taken, the employee should be advised to consult with their recognised Trade Union/Professional Association representative. If there is the possibility of disciplinary action being taken against an elected trade union representative (including School Representative), the issue must be discussed with paid officials of that union before any meeting with the employee is held. No formal disciplinary penalty will be applied until the employee has been advised of the nature of the complaint against them in writing and given the opportunity to state their case in a hearing or at an Investigatory Interview, as appropriate. No employee will be dismissed for a first breach of discipline except in the case of gross misconduct where the penalty may be dismissal without notice. An employee will have the right of appeal against all formal warnings and dismissal. 5

6 Full and accurate records will be maintained throughout all disciplinary action. In dealing with a breach of discipline under the formal procedure, the same person should not conduct both the detailed investigation and the hearing. An observer may attend both Investigation and appeal on behalf of the Trust to ensure correct application of procedure including adjourning or suspending process if deemed necessary. The governors sitting on any appeal panel will not have been involved in the case in any material sense or have acted as a panel member for any disciplinary hearing. Each Academy and Individual involved in the process may as appropriate or advised be represented by separate persons and bodies, this includes the Academy being able to continue using a different SLA provider from the Trust and for the Investigating Officer or for potential witnesses to have separate representation. 4 MISCONDUCT Misconduct is defined as behaviour or conduct by an employee falling short of the Academy s standards. Examples of misconduct are provided in the Disciplinary Rules (Appendix 1). Gross misconduct is considered to be behaviour or conduct that falls so far below the standards required that it can be considered as a fundamental breach of contract. Acts of gross misconduct can lead to a dismissal for a first offence. The Disciplinary Rules provide examples of gross misconduct (Appendix 1). Loss of Trust and Confidence in an employee may additionally result in dismissal where applied to specific patterns of misconduct or actions of Gross Misconduct. 5 CRIMINAL OFFENCES AND CAUTIONS OUTSIDE OF WORK If an employee is charged with or convicted of a criminal offence outside of work, this may not in itself be a reason for disciplinary action. The Academy will establish the facts of the case and consider whether the matter justifies applying the disciplinary procedure. It may be possible for a disciplinary investigation to run in parallel to a police and/or child protection investigation in certain circumstances. Where this may prejudice an external case a parallel Academy investigation will not take place. In these circumstances there are likely to be delays in conducting the Academy investigation. In such cases it is good practice to keep the employee informed of what is going on. Statements taken in external investigations may be used in any subsequent internal disciplinary proceedings. 6

7 It is not always necessary to await the outcome of any court hearing before deciding on disciplinary action. The criminal justice system works on the basis of guilt being beyond reasonable doubt but in employment law the employer can make a decision based on the balance of probability and as a reasonable employer. In such cases, the Academy will always discuss the issues with the employee s representative in an attempt to agree a reasonable procedure. If dismissal is the disciplinary sanction, in order for it to be deemed fair, the Academy would need to show that it had a genuine and reasonable belief that the employee committed the criminal act, which the conduct in question would make it difficult to continue their employment and that dismissal is reasonable in the circumstances. A dismissal under such circumstances would be deemed to be fair even if the employee is not charged or convicted in the criminal justice system. The Academy will not consider this course of action without first implementing the consultation requirements of SUSPENSION An employee may be suspended from duty on full pay at any time in cases of gross misconduct or where there is a risk to the safety of colleagues, young people or to the employee themselves or a risk to the contamination of evidence or there is a risk of unmitigated harm to the Academy s efficient and effective delivery of provision. Suspension is not a disciplinary penalty and is a neutral act. Suspension will not be automatic and consideration will be given to alternatives to removing an individual from the workplace. In some cases it may be appropriate for the employee to take a short period of management leave on full pay (i.e. being asked to remain at home with no work or reasonably restricted work having been allocated; commonly called Garden Leave). Any period of management leave will not be recorded on file as part of any disciplinary record. This may include a period prior to an investigatory interview being held. It is important to understand that management leave and suspension from duty are not disciplinary sanctions. The decision to suspend will normally be made following advice provided by an appropriate senior Trust employee or duly assigned and delegated advisor or service provider. This decision will be made at the outset either as a result of the nature of the allegation, the initial exploratory interview, during or following the formal investigation, or as a result of conduct by the employee or others making suspension a reasonable act. Employees will be notified in writing of any decision to suspend or similar and should be advised to contact their Trade Union representative and be provided with the contact details for an Trust Contact who will be a guaranteed contact for providing information on the progress 7

8 of the case and if appropriate any additional support that is available. The formal letter of suspension should be handed to the employee or sent Recorded Delivery, to ensure proof of receipt. The Academy will nominate a link contact to act as a nominated contact following management leave or suspension, for the employee. The role of the link member of staff is to advise the employee of developments at the Academy. Potentially also arranging for forwarding of internal mail, arranging collection of materials and Keep in Touch Meetings, if possible and appropriate. In cases where it is known that the employee holds similar or equivalent employment(s) in other educational establishments, or employers where similar concerns including safeguarding, may exist, consideration should be given as to whether the suspension from duty should be extended or the other employer/ agency informed, for example, when dealing with matters arising under the Allegations policy. Where suspension relates to a safeguarding allegation, the guidance in the Allegations Policy must take precedence over this policy and procedure. Only an appropriately designated person, including the Chair of Governors, may end a period of suspension of the Principal. The Principal or Chair of Governors or Chair of a Disciplinary Hearing or appropriately delegated person may end the period of suspension; as far as is reasonably possible they will ensure they first take advice from the appropriate Trust officials or advisors. 6.1 Suspension Terms During the period of suspension, unless otherwise informed, the employee is:- a) Prohibited from attending Academy s premises other than to attend investigatory interviews or attending a disciplinary hearing; b) Prohibited from contacting any pupil, parent, employee of the Academy other than their representative or nominated contact. This prohibition does not prevent the employee from having social contact outside of the work place, provided the disciplinary issues that are the cause of the suspension are not discussed. Should it be necessary for the employee to have contact with any witnesses in order to prepare their case, prior approval must be sought in advance through the Principal or designated person. In some circumstances the employee s representative may conduct an investigation on behalf of the employee provided they have received prior approval from the Principal or designated person. 8

9 c) Obliged to co-operate with the disciplinary investigation including any reasonable request to provide or identify documents; d) Obliged to ensure that they are, and remain, contactable during normal working hours; e) Required to follow normal notification/request procedures for sickness and annual leave through their nominated contact. Employees should be advised that any breach of the terms of suspension could itself become a disciplinary offence. 7 RIGHT TO BE ACCOMPANIED The employee has a right to be accompanied at all formal stages of the disciplinary process (even if they have left employment) by a Trade Union/Professional Association representative or a work colleague of their choosing (although not in the capacity of a practising lawyer). Upon request or where there is an apparent need due to absence of representation, the Academy will consider offering the support of a Senior Colleague or appointed external advisor as representative. 8 GRIEVANCES RAISED DURING THE DISCIPLINARY PROCESS Where, during the course of the disciplinary process, the employee raises a grievance about any aspect of the disciplinary process not having been followed correctly, the Principal/Governor(s), person handling the Grievance will decide whether it will be treated as a separate grievance under the Academy s grievance procedure. Where the subject of the grievance is linked to issues that are the subject of the disciplinary hearing the grievance, if reasonably possible, will be conducted alongside the disciplinary procedure. A grievance against the following of procedure will not automatically result in the suspension of process but in all cases will require consultation with the appropriate Trust representative as to the reasonableness of continuing. 9 ACTION AGAINST TRADE UNION/PROFESSIONAL ASSOCIATION REPRESENTATIVES Disciplinary action will not be taken against a known employee representative of a recognised Trade Union/Professional Association until the circumstances of the case have been discussed with the full-time representative or branch official of the Union/Association concerned. The 9

10 Academy understands that the various representative organisations operate differently and will always seek to discuss at the appropriate level. The normal standards of conduct are expected of such Trade Union/Professional Association officials. The normal disciplinary procedure will apply and this will include procedures for suspension where warranted. 10 RECORD KEEPING At all formal stages of the disciplinary process, the employee will be given copies of formal notes which may be made anonymous in order to protect a witness or complainant.. It is for the Governing Body to demonstrate that any dismissal is fair and reasonable should the employee complain to an Employment Tribunal, rather than for the claimant to prove their case. It is essential, therefore, to maintain full and accurate records of each stage of action. It may be advisable in some cases to establish a separate Investigation file with a coded reference in the main file in order to protect all parties and process. This file should be active during the process. A decision as to subsequent incorporation, storage or deletion is to be made following whatever stage the process ends at. Action to be based upon advice received with regard to both employment rights and data protection. This will be decided by the Investigating Officer or more senior colleague with designated responsibility. Request from the employee or their representative in this regard must also be reasonably considered. The records kept in an employee s personal file will include:- a) The complaint against the employee; b) The employee s defence; c) Investigation notes; d) Findings made and actions taken; e) Whether an appeal was lodged; f) The outcome of any appeal; g) Any grievances raised during the disciplinary procedure; h) Subsequent developments; i) Notes of formal meetings/advice/warnings and guidance issued to the employee; j) Minutes will not be contemporaneous but subject to addition of disputed notes where agreement of a true record does not apply. 10

11 If dealing with investigations under the Dealing with allegations of abuse against members of staff and volunteers policy, the appropriate amendments or replacement of stages of this procedure apply, including the taking of advice from LADO and other appropriate organisations. In order to comply with relevant legislation, the Academy will treat all records as confidential unless there are sufficient legal grounds for this to be considered otherwise; e.g. a court order. The HR Manager or equivalent will be responsible for considering notifying the Disclosure and Barring Service The National College, Borders Agency or other regulatory body as appropriate, when an employee:: a) is dismissed for misconduct; b) resigns in cases where they would have been dismissed for misconduct had they not resigned; c) resigns in cases where dismissal for misconduct would have been considered had they not resigned. A referral is appropriate if the alleged misconduct is so serious that it warrants a decision on whether the teacher should be prevented from teaching again. Cases of less serious misconduct, and all cases of incompetence, should be dealt with locally by employers. If an allegation is deemed to be such that the teacher should be prevented from teaching until their case has been fully investigated, the Teaching Agency can impose an interim prohibition order until the case is concluded. DISCIPLINARY PROCEDURE 11 INFORMAL Where appropriate, conduct issues will be addressed by the line manager, a member of the senior leadership team or the Principal as part of normal day to day management responsibilities. Such actions will fall outside of the formal disciplinary procedure but may include the issuing of written advisory or warning notices. Written advice and guidance regarding standards of conduct will be given to employees where minor and/or non-repetitious acts of misconduct occur. Specifically Management or Academy Advisory/ Warning Notices will be issued and held on file. Note as such notices/ warnings do not form part of the formal procedure they will not be used for the purposes of references but 11

12 may be considered with regard to disciplinary case evidence, capability proceedings, performance related pay and appraisal. Additional clarification on the use of such notices should be sought from the HR manager or equivalent prior to action. Where a matter is referred to the Principal, it will be for the Principal to decide whether to issue advice and guidance or whether to proceed to an investigation or exploratory interview under the formal procedure. No matter will proceed to formal procedure without the approval of the Principal or appropriately delegated person. Where advice and guidance is issued, the employee must be warned that; failure to observe instructions; or repetitions of misconduct in the future are likely to be considered under the formal stages of the disciplinary procedure. The advice and guidance will be recorded in the employee s personal file. The employee should be given a copy of the written advice and be provided with an opportunity to record their comments if they disagree with the content. The employee may raise a grievance if dissatisfied with the content. There is no right for the employee to be accompanied at the informal stages of the procedure although employees are advised to seek advice from their Trade Union or Professional Association at this time. Representatives may be permitted to attend at the Principal s or delegated person s discretion. The issuing of advisory and warning notices short of referral to the Principal is delegated to all Senior Managers and Line Managers in accord to individual Academy procedures but remains subject to the same provisions regarding copies in writing, right of reply and access to the grievance procedure. The issue of advisory and warning notices to the Principal can occur through appropriately delegated authority of the Governing Body or Trust. The principle of appropriate delegation of authority to sanction and apply both the informal and formal procedure shall extend to all forms of restructure, reorganisation within an Academy and across the Trust. 12 IDENTIFYING THE NEED FOR FORMAL DISCIPLINARY ACTION The Designated person, Principal or the Chair of Governors (in the case of alleged misconduct of the Principal) as appropriate will decide whether the circumstances warrant moving to the formal stages of the disciplinary procedure. Applying the formal procedure will largely depend on: 12

13 a) The nature of the alleged misconduct; b) The seriousness of the alleged misconduct; c) Previous action, including any warnings regarding the employee s conduct. d) Ensuring through all reasonable efforts that any allegation is not malicious or based upon misinformation, misunderstanding. e) An informal investigation shall not compromise the designated person in applying any subsequent procedure; provided the investigation is limited to the superficial and nondisputable aspects of the case, eg. was the person present? Is there clear evidence that an event did not occur? f) If there is a decision not to proceed to formal there is no requirement to inform any party of this or keep a formal record in the file against whom the allegation was made. Advice should be sought and recorded as to what seems appropriate on a case by case basis. It is generally good practice to keep a confidential management activity record of events and outcomes; however each case may have different factors. E.g. establishing a case of harassment. 13 FORMAL The formal stages of the disciplinary procedure should be carried out as speedily as possible in the interests of both the employer and the employee concerned. Nothing stated in this procedure is intended to bar or discourage the resolution of any matter between the parties by agreed alternative means or by agreed variation to the procedure as published. The formal stages of the disciplinary procedure are based upon a graduated system of warnings with more serious sanctions being applied where poor conduct is repeated or where the employee fails to heed previous warnings or where the nature of the misconduct justifies a more serious warning or potential dismissal. 14 INITIAL MEETING Following concerns being raised about an employee, a delegated person with appropriate delegated authority, or the Principal should conduct an initial meeting with the employee as soon as possible, in order to avoid delay. In the event a meeting is impossible either due to the nature of allegations and identified need to suspend or equivalent; or the absence of an appropriately delegated colleague to conduct the meeting, then all appropriate information will be provided in writing as soon as is reasonably possible. The aim of the meeting is to: 13

14 a) Notify the employee of the alleged misconduct (unless there are exceptional reasons to do otherwise); b) Tell the employee whether the matter will be subject to an investigation and of their right to be given 5 working days notice of any investigation meeting(s) in addition to their right to be accompanied; c) To provide the employee with a copy of the disciplinary procedure (if this has not already been provided); d) To make a decision as to whether it is appropriate to suspend the employee or send them home on management leave; if such a decision has not already been made. Following the meeting, the employee will be sent a letter setting out the information discussed at the initial meeting and the details of the investigation. The employee must be advised that anything they say in the meeting can be used as evidence and that it is usually good practice for them to immediately contact their Union, professional association or legal advisor. If they have none they can be given an indication of whom may be able to assist them, including CAB, ACAS. A minute taker is not crucial for this meeting. The person holding the meeting need not automatically become the Investigating officer. A representative does not have to be present. No inducement or coercion should occur to provoke a response or admission from the employee that might potentially harm their future case or compromise their rights. Nothing in the above precludes accepting a statement of admission. 15 INVESTIGATION In all cases, an internal investigation will be required to establish whether or not there is a case for the employee to answer at a formal disciplinary hearing. Where an investigation takes place, the employer will aim to conduct it promptly and without unnecessary delay while memories of events remain intact. However, the nature, scale and duration of any disciplinary investigation will depend on the seriousness and complexity of the misconduct being investigated. Interviews with young people will only be conducted where absolutely necessary. In cases where it is proposed to do so, such interviews will take place as soon as practicable. Any and all such interviews will be conducted with reference to the Academy and Trust Safe-Guarding procedures as they apply to young people, additionally all such interviews will be witnessed by a person not conducting the investigation and not materially involved in the allegation. To avoid 14

15 the necessity of young people attending disciplinary hearings to give evidence, the employee s representative may request specific questions to be put to the young person from the Investigating Officer. This may result in an additional interview. Such requests for questions will not be unreasonably refused. A note of any question refused should be retained. Investigations relating to safeguarding allegations must be made with reference to the Allegations Policy. In such situations, any police investigation may restrict the conduct of a separate internal disciplinary investigation as it will take priority. Statements or video evidence taken in the course of a social care or external investigation may be used as part of the internal investigation process and may be submitted as evidence to a formal disciplinary hearing. Any written statements should be signed and dated. The person with responsibility for the investigation is the Investigating Officer. They will: a) Ascertain the facts and circumstances surrounding the allegation(s) of misconduct including identifying witnesses and taking statements from them. b) Ascertain the employee s response to the allegation(s); c) Form a view as to whether there is a case to answer at a formal disciplinary hearing keeping a record of investigation findings. The Investigating Officer may be the Principal or a member of the senior leadership team (where delegated by the Principal) or other person with appropriate delegated authority arising from application of the policies of the Governing Body and/or Trust. If the Principal acts as Investigating Officer, they cannot chair any subsequent hearing, nor except in exceptional circumstances form part of the hearing panel. Exceptional circumstances must only be considered following consultation with the HR provider or higher level legal advice. An employee will be given 5 working days notice of any investigation meeting(s)/interview and will have the right to be accompanied by a work colleague or Trade Union/Professional Association representative. The employee will be sent a letter at the end of the investigation notifying them of the decision of the Investigating Officer and what the next steps will be. Where possible a verbal notification will be given at the time of the interview. Outcomes of an Investigatory meeting or Interview can include: a) Decision, No case to answer, confirmed in writing and with agreement and discussion as to other notifications and record keeping. Where possible and appropriate the employer 15

16 will have the relevant letters and any other documentation prepared such the employee can be reassured as swiftly as possible. This may include return work plans for discussion and support arrangements. b) Adjournment for further investigation, meeting will resume at agreed time following the gaining of other information as agreed and on behalf of either party. c) Adjournment for further investigation without return for a continuing meeting; for example if a factual or subsidiary piece of information is required but that does not obviously require further response from the employee. This can include discussion with a person making an allegation such that an allegation is withdrawn. d) Decision to proceed to hearing. Where possible and appropriate the dates and letters will be prepared and discussed to enable as speedy a resolution as possible. For example the employer may have pencilled in 2 or 3 potential dates for a panel. Note: if there is a prior record of non-attendance it may not be considered reasonable to further defer. The Investigating officer must make a determination based upon the grounds indicated by the employee, representative and advice regarding such principles as precedent, right to representation, right to swift resolution and the rights and duties of the employer to both the employee and the service provision. 16 CONVENING A DISCIPLINARY HEARING The purpose of the hearing is to consider the evidence to enable the appropriate person or panel to decide what action, if any, to take. Where the employee s dismissal is contemplated, the hearing will be conducted by an appropriately delegated employer s panel with at least 3 members. In all other circumstances it may be conducted by an equivalent panel or such person or persons as have been appropriately delegated authority. Where a formal disciplinary hearing is to take place, the employee will receive written notification from the Academy at a minimum of 7 days in advance. The exact time should be considered with regard to such matters as the complexity of the case materials, possibilities of producing witnesses, availability of panel members and representatives. Notice and Invitation to hearing will include:- a) The location, date and time of the proposed disciplinary hearing; b) Details of the disciplinary allegations which the employee is to face; c) Whether dismissal is being contemplated as a sanction; d) The right to be accompanied for the employee and if appropriate for others. 16

17 e) Names of the panel members if available although this is not a requirement. If unavailable and once at the hearing a conflict of interest or other impediment is identified it is the responsibility of the employer to either swiftly gain a replacement or arrange a reconvening. f) The requirement for the employee to confirm in writing that they are attending, by return (including by ) or signature at the meeting when invitation is given, providing all relevant documentation for the hearing and confirming the name(s) of their representative and any witnesses that are likely to be called as applicable is all to be dealt with as reasonably and flexibly as possible. If the employee needs to submit a paper at the meeting without prior opportunity for review this should be facilitated as far as possible, the same applies with regard to all evidential matters. g) The contact details for the provision of papers, documentation, requests for information, support or discussions. h) If the employee needs to change their representative, for example due to unavailability it shall be possible, especially as it is the employee s responsibility to arrange representation. i) Offering assistance at the hearing or in attending the hearing in relation to disability. Unless already provided for within the hearing invitation letter, at least 5 working days inclusive (meaning if meeting is on Friday, papers by CoP Monday, hearing can be Friday) prior to the hearing the employee will be given copies of any documents that will be relied upon at the hearing (known as the bundle). With the exception of the statement of case and any request s for consideration which may form the presentation of case at the hearing. For example: a) Record of the investigation; b) Copies of (or a summary of) any statements obtained as part of the investigation; c) Notes of any investigatory interview(s) they attended; d) Names of any witnesses who will be attending the hearing called by the Academy. Note: It is the employee s responsibility to arrange for any witnesses they wish to call. The final papers for the hearing must be collated and sent to all participants at least 5 working days prior to the hearing. Any late submissions must be submitted to the Chair of the Hearing and agreed for admission by all parties. The same provision can be applied to witnesses. a) The statement of defence for an employee is accorded the same rights as the statement of case; it may be submitted at the hearing if desired. This arrangement is intended to remain flexible and participants are encouraged to provide information to each other in as far advance as possible. b) Where papers and documentation are coming from multiple sources and time-scale or resourcing does not permit a formal bundle to be compiled this shall not preclude the hearing from progressing on the basis that all parties will make reasonable efforts to 17

18 ensure adequate sight of materials occurs and that if necessary adjournment and/or postponement will occur at the discretion of the panel chair, if necessary after having taken advice. c) It is the responsibility of both the employer and employee to make all reasonable efforts to reach agreement as to procedure, variation and flexibility such that the procedure can be fairly and swiftly applied. 17 ATTENDANCE AT THE HEARING The employee is required to take all reasonable steps to attend hearing/s. A hearing may take place in the absence of the employee if their representative can attend or if one reasonable deferral has already been agreed and accepted. The person arranging any hearing will make reasonable adjustments for an employee or their representative with a disability to fully participate in the hearing. The person arranging any hearing will arrange for a note-taker to take detailed notes at the hearing so that a representative but not contemporaneous transcript can be produced following the hearing. An observer or advisor from the Trust may attend the hearing providing their remit is established in advance of commencement of statements of case. Where exceptionally an individual is to hear a case that will not result in dismissal they will ensure they are accompanied by an appropriate advisor. As far as possible, an individual will not hear cases if a panel can be convened; this is in order to prevent any potential allegations of bias or other breaches of natural justice against the Principal. Note: if there is prior record of non-attendance it may not be considered reasonable to further defer. If a hearing occurs with an individual having delegated authority the grounds must be established in advance, for example if the case is largely non-contested or an unreasonable delay would occur. A panel will conform to the Trust policy and procedure. If the employee fails to attend the hearing due to reasonable circumstances out of their control, for example for reasons of sickness supported by a medical certificate, a further hearing date 18

19 will be offered. If the employee fails to attend a second hearing, the hearing may be held in their absence based on their written submissions or their representative may attend in their absence if required. Should the employee be unable to arrange representation for a hearing, a further date will be offered within 5 working days of the original date, where reasonably possible. If the employee is unable to arrange representation for the second hearing, the hearing will proceed in the absence of the representative. The Trust may seek to arrange support in this instance. 18 PROCEDURE AT THE DISCIPLINARY HEARING The Presiding Officer at the disciplinary hearing will be of appropriate authority delegated by the Governing Body and/or Trust. Where dismissal of an employee is a possible outcome of a hearing, a panel will always be convened. The hearing will be conducted in accordance with the procedure published in association with this document or the invitation to hearing letter unless otherwise agreed. Reasonable requests from the employee and/or representative to change format, location or related will be considered favourably as far as is reasonably possible. 19 DISCIPLINARY OUTCOMES In determining the appropriate disciplinary penalty, consideration will be given to: a) the gravity of the offence and any explanation given; b) mitigating factors c) the employee s previous conduct record; d) actions taken in similar cases; e) the employee s length of service; f) Whether the action considered is proportionate and reasonable in the circumstances. The penalties available to the Presiding Officer of any disciplinary hearing are shown below; although this list is not exhaustive. Additionally reasonable sanctions relating to loss of seniority, redeployment, retraining maybe considered and implemented No Case to Answer, No Action and Sanctions. a) No case to answer. 19

20 If the case is shown to be flawed, unfounded, and unreasonable or for some other reason not applicable, then in this instance notification and agreement as to what should be recorded, filed and acted upon, including if appropriate actions regarding other persons, will be sought between an appropriate person from both the employer and employee. b) No Further Action No further action will be taken where the employee is not found to be culpable of anything warranting further sanction. Consideration of an advisory or warning note may be given by the panel or person conducting the procedure.. Agreement as for no case to answer will be sought regarding any further steps. c) Formal Action -Sanctions Recorded Oral Warning If conduct does not meet acceptable standards, but it is felt that a written warning would be inappropriate, the employee will normally be given a recorded oral warning. This remains on file for an agreed period, generally 6 months or as deemed appropriate by panel. The warning is deleted from the personal file on expiry but may remain in the case file if deemed appropriate; generally only in cases of safe-guarding or potential recurring minor actions. Items placed in case files do not get used in references; unless required by statute. Written Warning A written warning will be appropriate where the conduct of the employee has fallen below acceptable standards and informal guidance has not resulted in sufficient improvement or where the offence is sufficiently serious to justify an immediate formal penalty. This remains on file for an agreed period, generally 12 months or as deemed appropriate by panel. The warning is deleted from the personal file on expiry but may remain in the case file if deemed appropriate; generally only in cases of safe-guarding or potential recurring minor actions. Items placed in case files do not get used in references; unless required by statute. Final Written Warning A final written warning is appropriate where:- - the conduct of the employee continues to fall significantly below acceptable standards and previous warning(s) have not resulted in sufficient improvement; 20

21 - the misconduct is so serious that a first and final written warning is appropriate; - dismissal is a clear possibility, but significant mitigating circumstances are accepted. This remains on file for an agreed period, generally 24 months or as deemed appropriate by panel. The warning is deleted from the personal file on expiry but may remain in the case file if deemed appropriate; generally only in cases of safe-guarding or potential recurring minor actions. Items placed in case files do not get used in references; unless required by statute. Dismissal Dismissal will be considered where there has been gross misconduct or where the employee has a current, relevant, final written warning and further misconduct or unsatisfactory conduct has taken place, or there is a serious persistence of lower level misconduct sanctions either current or historic but indicating an unresolved pattern. Dismissal with contractual notice. Unless an employee is dismissed for gross misconduct, the appropriate period of notice must be given (i.e. if dismissal is as a result of a series of related warnings). Dismissal without contractual notice (summary dismissal). Actions of gross misconduct will, except in the most exceptional circumstances, justify dismissal without notice. Dismissal Due to Loss of Trust and Confidence: This may occur as a result of considering the outcome of the hearing and appropriate sanctions and then consideration of either previous record or potential for the continuing of employment. For example where a Final Written Warning would result in the employee being placed in a position that would, on the balance of probabilities harm other employees, young people or the employee and there is no reasonable potential for redeployment, retraining or similar measure. This may occur where there is a persistent accumulation of unrelated warnings indicating, on the balance of probabilities a general disregard or other irreconcilable barrier to the employee fulfilling the terms of their contract of employment. 21

22 20. CURRENCY OF WARNINGS Any warning applied will remain on the employee s file but will only be regarded as live for further disciplinary purposes for a specified period of time after which time it will normally be disregarded for disciplinary, forwarding and reference purposes. The exception to this will be in circumstances where the same type of misconduct becomes a pattern which is repeated every time a warning expires. In these cases, the circumstances of previous warnings should be taken into account in deciding on what further action is appropriate. The spent warning will be retained on file as part of the employment record, frequently in a cross-referenced case file, in accordance with the ACAS Code of Practice, although it will not automatically be taken into account in determining the level of penalty. Exceptionally, there may be circumstances where the misconduct is so serious that it cannot realistically be disregarded for future disciplinary purposes: For example, where the misconduct concerns Allegations of Abuse/ Harassment against Young People, Members of Staff and Volunteers. General guidance below: Recorded Oral Written Final Written Warning Level Live Period (from date of issue) 6 months 12 months 24 months 21. HEARING OUTCOME Whether or not the employee has been informed of the outcome of the disciplinary hearing orally, the employee will be notified of the outcome of the disciplinary hearing in writing within 5 working days of the hearing. Any dismissal letter will be sent on behalf of the Governing Body as the agent of the legal employer or the Trust, as appropriate; this will generally be by the Principal but can be any other person with appropriate delegation of responsibility and function. Where possible, written notification will be given at the hearing, including the right of appeal and opportunity to appeal immediately. Provisional appeal dates can be prepared in advance and agreement sought as to how and when the appeal should occur. 22. RIGHT OF APPEAL An employee may appeal against a decision to issue them with any level of formal disciplinary penalty, including dismissal. The reason for appeal can be one of the following:- 22

23 a) There was a defect in the procedure; b) Not all evidence was considered; c) The sanction/decision was too severe; d) New evidence has come to light since the last hearing. An employee seeking to appeal must do so within 5 working days of written notification of the decision (if given at the hearing then this is inclusive). The employee should send their letter of appeal together with the grounds of appeal to the person named in the letter confirming the outcome of the hearing. A simple statement or tick against the appropriate statement/s above is sufficient. 23. APPEAL HEARING Once a written appeal has been received, an appeal hearing will normally be convened promptly, allowing at least 5 working days written notice to the appellant (or shorter if agreed) noting their right to be accompanied. The Presiding Officer of the appeal panel will decide whether the hearing will take the form of a review of the decision or a re-hearing of the case. The appellant will also be informed of this in the appeal invitation, confirmation or information letter. Copies of any documents relevant to the case including documents which were not provided at the original hearing and which are intended for consideration at the appeal hearing will be exchanged as soon as reasonably possible in advance of the hearing. The same provisions for late submissions as for initial hearings also apply. If the appellant fails to attend the hearing due to reasonable circumstances out of their control, a further hearing date will be offered. If the appellant fails to attend a second hearing, the hearing may be held in their absence based on their written submissions or their representative may attend in their absence if required. Note, if there is a prior record of non-attendance it may not be considered reasonable. The appellant need not attend the appeal hearing and can instead be replaced by their representative or they can make a submission in writing to be received in advance of the hearing if possible but this is not a necessity. The Appeal panel will be composed as indicated in Trust and Academy policy, as previously specified, this may not include the Principal if materially involved in the case; nor a member of 23

24 the initial panel. Panel members must not have attended the disciplinary hearing, for which the appeal was submitted, acted as a witness in the case or have been involved in the case in any material sense. The meeting will have minutes taken in accord with the provisions made for a hearing. One or more members of the initial hearing panel may be called as witnesses. The original Investigating or presenting officer may return or be replaced. The original observer or advisor may return provided their status is confirmed as before. Note, if called as a witness they cannot provide advice or act as an observer. They can be replaced if the Trust or Academy desire. The Appeal panel will reach findings based on documentation and the submissions from all parties. They have a broad discretion in terms of their findings. They may uphold the decision of the hearing, revoke it in its entirety or substitute a lesser penalty. The decision of the Appeal Panel will be final. A successful appeal against dismissal will result in the employee being reinstated and their continuity of employment preserved. Back pay will also be applicable in such circumstances. A letter confirming the outcome of the appeal hearing will be sent to the employee within 5 working days. Where possible a written pro-forma to avoid delay should be available, including all papers relating to reinstatement and correction of salary. 24

25 APPENDIX 1 - DISCIPLINARY RULES AND GUIDANCE Standards of behaviour set in the Academy by the Governing Body and Principal are key in ensuring that employees understand what is expected of them whilst employed by the Academy. The Academy s Code of Conduct is used to complement the overall standards set and other documents in relation to standards. The Code provides employees with positive encouragement to help them enjoy a positive working experience in the Academy whilst ensuring they understand that a breach of its provisions will be sufficient to commence disciplinary action. The Principal and/or Governing body will need to use sound judgement, with the advice of the HR Manager as appropriate, to determine whether an act or omission amounts to misconduct or gross misconduct. Misconduct Misconduct is defined as behaviour or action that warrants disciplinary action (rather than dismissal) where it is a first offence. The following sets out examples of misconduct which are likely to lead to formal action being taken under the disciplinary procedure although it should not be regarded as exhaustive (in some instances, items listed under misconduct may be of such an extreme nature to amount to gross misconduct):- a) Failure to comply with a reasonable management instruction. b) Act(s) of minor insubordination. c) Failure to observe the Academy s Standing Orders, financial or other operational regulations. d) Failure to observe Academy policies. e) Disregard of specific departmental rules and working procedures. f) Negligence in the performance of duties. g) Failure to provide a duty of care in the performance of role. h) Breach of Health & Safety rules and requirements including any act or omission. i) Poor-time keeping. j) Unjustifiable absence from work. k) Misuse of Academy property and equipment including misuse of , fax or internet facilities. l) Failure to follow the Academy s sickness notification procedures and certification requirements. m) Inappropriate actions during a period of sick leave likely to inhibit recovery or a return to health. 25