DISCIPLINARY POLICY AND PROCEDURE. Date ratified: 23 rd September Development

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1 DISCIPLINARY POLICY AND PROCEDURE Document type: Version: Author (name and designation) Ratified by: Policy Four Karen Elmer, HR Business Manager Executive Directors Date ratified: 23 rd September 2015 Name of Executive Lead Master Document Controller? Director of Strategic and Organisational Development HR Support Administration Officer Date uploaded to intranet 28 th September 2015 Review date: September 2018 Equality Impact Bolton NHS Foundation Trust strives to ensure equality of opportunity for all service users, local people and the workforce. As an employer and a provider of healthcare Bolton NHS FT aims to ensure that none are placed at a disadvantage as a result of its policies and procedures. This document has therefore been equality impact assessed to ensure fairness and consistency for all those covered by it regardless of their individuality. The results are shown in the Equality Impact Assessment (EIA). Page 1 of 25

2 Version Control Schedule Version Type of Change Date Revisions from previous issues 3 Minor Change Feb 2014 Minor amendment under Section 1.0 of the policy to ensure clarity around the implementation of the Trust s Disciplinary Policy & Procedure for matters of misconduct for Medical and Dental Staff. 4 Full policy review August 2015 Full policy review in line with the policy review schedule. Review of policy timescales to ensure these are in line with the Trust s Grievance Policy. Page 2 of 25

3 DISCIPLINARY POLICY & PROCEDURE CONTENTS 1.0 Aims Of The Policy Scope General Principles And Responsibilities Disciplinary Procedure Right To Be Accompanied Exclusion (Suspension) Investigations Informal Action Formal Disciplinary Procedure The Disciplinary Hearing Formal Disciplinary Action First Written Warning Final Written Warning First And Final Written Warning Action Short Of Dismissal Extended Warning Periods Dismissal Disciplinary Sanctions Employment Tribunals Appeals Procedure Professional Bodies Disclosure And Barring Service (Dbs) APPENDICES Appendix I Disciplinary Offences Appendix 2 Disciplinary Hearing Procedure Appendix 3 Appeal Hearing Procedure Appendix 4 Authority to Act in Respect of Senior Managers Appendix 5 Levels of Authority to Take Disciplinary Action Appendix 6 Incident Decision Tree Appendix 7 Equality Impact Assessment Appendix 8 Document Control Tracking Page 3 of 25

4 DISCIPLINARY POLICY AND PROCEDURE 1.0 Aims of the Policy 1.1. This document sets out the Trust s policy, procedures and standards in relation to disciplinary matters. The key aim of this policy is to ensure that the standards are adhered to and that alleged breaches are dealt with in a fair, consistent and timely manner. This aim is consistent with the Trust Values and is exemplified in standards detailed in current legislation The objectives of the Disciplinary Policy and Procedure are to: set out the responsibilities and duties of management and staff in relation to handling disciplinary situations ensure fairness, equality and consistency of treatment of staff make staff aware of the kinds of acts and omissions that constitute misconduct and gross misconduct at work, (see Disciplinary Offences in Appendix 1) and the procedures and sanctions which may apply in respect of disciplinary matters assist all employees to achieve and maintain acceptable standards of conduct in relation to their employment in the Trust 2.0 Scope 2.1. This policy applies to all staff, including medical and dental staff employed by the Trust. However in the case of medical & dental staff this policy must be used in conjunction with the Trust s Disciplinary Procedure for Hospital Medical & Dental Staff In line with section 4 of the Trust s Disciplinary Procedure for Hospital Medical & Dental Staff, misconduct matters for doctors and dentists, should be dealt with in accordance with this policy (Disciplinary Policy and Procedure). In such cases the framework for Maintaining High Professional Standards, as outlined in the Disciplinary Procedure for Hospital Medical & Dental Staff, must be considered Capability & Poor Performance Issues of capability and poor performance should not be dealt with under this policy. Concerns of capability involving medical and dental staff are dealt with outside of this policy under the Trust s Disciplinary Procedure for Hospital Medical & Dental Staff. It should be noted that in the case of doctors in training, placed under service level agreements, reference should be made to the Lead Employer Arrangements. Lead Employer Arrangements are identified outside of this policy. Concerns regarding poor work performance of non-medical staff are dealt with outside of this policy under the Trust s Capability Policy and Procedure This policy should be used in conjunction with the Trust s other relevant policies in dealing with misconduct for example related to smoking, substance abuse or protection of vulnerable groups e.g. child protection Conduct external to work may be the subject of this disciplinary procedure where it can be demonstrated to have a bearing on the employment contract and employment relationship. Page 4 of 25

5 3.0 General Principles and Responsibilities 3.1. Early intervention when problems are identified is encouraged enabling a proactive, developmental or educational rather than a punitive approach to be taken. (Where appropriate this may be in line with the Trust s Capability Policy and Procedure) While the provision of supported improvement and encouragement are essential in moving away from a culture of blame to develop one of trust and freedom for staff to give their best, it is accepted that there are occasions when the avoidance of disciplinary measures would be inappropriate and/or dangerous It is the responsibility of managers in implementing this policy to be open, honest, fair, consistent and timely in dealing with members of staff and to act in the best interest of patient care Employees are expected to recognise that decisions have to be taken balancing their interests with patient care and service interests and to participate and cooperate with the implementation of these agreed procedures if required Trade union/professional organisation representatives have a responsibility to represent their members interests and to participate and cooperate in implementing the agreed procedures If an issue arises that is concerned with a staff representative advice should be sought from the HR Department at the earliest possible opportunity. The HR representative will discuss the matter with the full time officer of the respective union as a matter of urgency before proceeding with further action. This course of action should not be taken without the full knowledge and consent of the union representative involved Where the employee has difficulty in understanding English, the services of an interpreter should be offered Where the employee has a disability, under the Disability Discrimination Act (DDA), any reasonable adjustments should be taken i.e. larger print documents, loop system etc. 4.0 DISCIPLINARY PROCEDURE Principles 4.1. Disciplinary action will not normally be taken against an employee without them being given the opportunity to state a case, accompanied, if so desired, by a representative 4.2. No disciplinary action will be taken against an accredited representative of a recognised trade union, professional organisation or staff association until the circumstances of the case have been discussed with a full-time officer who covers the region Employees are encouraged to be represented at all stages of the formal procedure No disciplinary action will be taken until the circumstances of the case have been carefully investigated. It is important that the head of department or manager establishes the facts surrounding the allegation formally, taking into account the statements of any available witnesses. Managers responsible for undertaking an investigation are referred to the Trusts Investigation Guidance which is available from the HR department. Page 5 of 25

6 4.5. When a disciplinary matter arises and it is considered that formal action is required, the employee should be told what is being alleged against him or her, given a written statement of the allegation, including any supporting statements and/or investigation report and have the right to be accompanied in line with section 5.0 of this policy. The employee should be given reasonable time to prepare and given the opportunity to state his or her case Where a breach of discipline involves a criminal offence the Trust will not necessarily await the result of any court action before instigating disciplinary action including termination. However, this decision will only be made after discussion with either the Deputy Head of HR or Head of HR Where a member of staff is alleged to have committed a potential criminal offence, which requires the Trust to invoke the Memorandum of Understanding, no internal investigation should be undertaken without prior discussion with the Deputy Head of HR The breaches of discipline covered by this procedure fall into three main categories; minor offences, serious offences and gross misconduct. The Trust s Disciplinary Offences can be found at Appendix 1 of this policy, this list is not exhaustive Fraudulent/Corrupt Activities Managers who have been informed of a potential fraud must promptly report it to the Trust s Counter Fraud Officer before taking any action, including suspension, which could potentially alert the member of staff. Further guidance is contained in the Trust s Counter Fraud and Corruption Policy, which must be carefully followed. 5.0 RIGHT TO BE ACCOMPANIED 5.1. Employees have a statutory right to be accompanied by a trade union/professional organisation representative (recognised by the Trust) or workplace colleague at a formal disciplinary hearing The representative must be allowed to address the hearing to present the statement of case and any summary of this on behalf of the employee Whilst staff are not legally entitled to representation during the investigation process, this will be accommodated unless it determined that such representation will cause a delay in the investigation being completed Staff do not have the right to legal representation during any internal investigations and/or subsequent action in line with this policy. An exception to this would be for example in cases of suspected fraud or theft where the employee is required to be interviewed under caution. In these circumstances a suspected employee would be entitled to legal representation Although it is the responsibility of the individual to ensure they are adequately represented management will encourage such support for every member of staff Where management are aware of the employee s representative, any formal correspondence will be copied to them, unless directed otherwise by the member of staff. Page 6 of 25

7 6.0 Exclusion (Suspension) 6.1. It is recognised that there may be occasions when in dealing with situations under this policy it is considered inappropriate for an employee to be at work and where the use of exclusion may be considered. The use of exclusion is not a disciplinary sanction. Careful consideration should be given to its use as the term exclusion is emotive and can be seen by both the individual and others as having negative connotations including implied guilt The following principles will apply to exclusion: Exclusion will be on full pay. Full pay is defined as the pay which would have otherwise been earned during the period of suspension. Exclusion will always be for as short a period as is possible and any extensions will be confirmed in writing. All exclusions will be reviewed on a four weekly basis by the Case Investigator, in conjunction with the HR Business Manager. Written confirmation should be given within two working days stating the reasons for and expected duration of the exclusion. Staff who are excluded should be available to attend an investigatory interview at short notice if required, subject to the availability of their representative. I.e. 48 hours notice. Staff who are excluded from the Trust must not work for another employer during their normal working hours. The manager undertaking the exclusion should consider the requirement to remove the individual s access to Trust IT systems during the period of exclusion Patient safety must remain the key driver for any decisions relating to the exclusion of staff and all suspensions must be reported to the Head of HR. In addition, for suspension of clinical staff, this must be discussed with the relevant Professional Lead, Director of Nursing or their nominated deputy. When considering the exclusion of a Medical or Dental practitioner, section 3 of the Disciplinary Procedure for Medical and Dental Staff must be followed The Manager will be required to retain notes of any decision that they make in relation to the exclusion of a member of staff. This should contain a risk assessment of the factors considered above and should be reviewed following any additional information that comes to light as part of the investigation process. A sample form for this purpose is contained within Appendix 4 of the Investigation guidance document Any senior manager who is authorised to take any form of formal disciplinary action is automatically authorised to exclude an employee Exclusion should be the last resort; alternatives to exclusion should be explored before excluding an employee, i.e. removal from clinical work, alternative duties etc. 7.0 Investigations 7.1. No disciplinary action will be considered until a reasonable investigation has been carried out. A Manager will be designated to undertake the investigation (Case Investigator) and a member of the HR team will be allocated to advise and support the Case Investigator. Please refer to the Trust s Investigations Guidance, which is available from the HR Department. Page 7 of 25

8 7.2. The purpose of carrying out investigations is to gather all the relevant facts relating to the allegations promptly As part of the investigation the employee against whom the allegation has been made should be interviewed to ensure that they are clear about the allegation / complaint that has been made against them and before a decision is made as to whether there appears to be a prima facie case to answer at a formal hearing Once all the necessary information has been gathered the Case Investigator should collate the information and compile an Investigation Report. Consideration should be given to the information and on the basis of the evidence decide if there is any substance to the allegations / complaints The Case Investigator is responsible for presenting factual information as obtained throughout the investigation. The Case Investigator may present recommendations that may be considered by the Commissioning Manager, such as improvements to systems, additional training etc. such recommendations should not suggest any action that should be taken against any individual(s). 8.0 Informal Action 8.1. If following the completion of a thorough investigation there is insufficient evidence to pursue the matter at a formal hearing, however, there are concerns to suggest other action may be appropriate, the manager may determine that the matter is dealt with informally. Informal action may include: Additional/further training Referral to Occupational Health for assessment of health to determine any reasonable support/modification of duties which may be appropriate Referral to Occupational Health for counselling Reflective cycle Supervision Objective setting Short term adjustment of hours/shifts One to one meeting with manager Please note this list is not exhaustive and other support mechanisms may be identified as appropriate depending on the circumstances/individual needs The investigation report will not be shared with the affected parties where it is determined that there is no requirement for formal disciplinary action Any informal action should be discussed with the employee and his/her representative, where appropriate, and confirmed in writing Any informal action will be retained in the employee s personal file and may be referred to at a later date should a similar incident occur It is the manager s responsibility to ensure that any agreed action is arranged and completed by the employee and an update e.g. dates of training attended etc., recorded on the employee s personal file It is the employee s responsibility to carry out any agreed actions highlighted as part of the informal process. If an employee is unable to attend/meet any agreed action e.g. attend additional/further training or meet set objectives they must inform their manager at the earliest opportunity to ensure alternative arrangements are made. Page 8 of 25

9 8.7. The initial response to instances of minor unsatisfactory conduct should be to meet informally with the employee, discussing the situation with them with the objective of encouraging and helping them to change and improve their conduct. This should be in the form of a 1 to 1 meeting between the manager and member of staff Informal discussions are not regarded as disciplinary action. It should be supportive and regarded as corrective guidance. However, the employee should fully understand the outcome of the discussion, how he/she needs to improve, by when, and how their conduct will be reviewed. A letter confirming the discussion should be sent to the member of staff following the meeting This will not be an appropriate course of action in cases of serious misconduct. 9.0 FORMAL DISCIPLINARY PROCEDURE 9.1. If it is decided to arrange for the matter to be dealt with under the formal disciplinary procedure a disciplinary hearing will be convened at which employees will have the opportunity to state their case and to answer allegations that have been made The employee will have the right to be accompanied in line with section 5.0 of this policy. Arrangement of the Hearing 9.3. Where a disciplinary hearing is to be arranged this should be arranged to take place within 15 working days of the investigation being completed All relevant parties should be notified by letter giving sufficient notice for the employee to arrange representation Staff required to attend as the subject of a disciplinary hearing must be informed in writing of: The allegation(s) made against them Their right to be accompanied at the hearing (as per section 5.0) Who will hear the case Any witness(es) that are to be called or will be available to be called and the right of the employee to call witnesses Any relevant evidence and statements which have not previously been shared The possible disciplinary actions which may be taken as a result of the hearing, if the allegation(s) against them are proven. Exchange of Cases 9.6. If it is determined that there is a prima facie case to answer the Case Investigator will be required to provide a written statement of case outlining the allegations, background to case, specific issues pertinent to the case, the investigation process/methods, a summary of the findings, conclusion and recommendation Management will provide the employee, whom the allegations have been made against, with copies of all relevant documentary evidence to enable them to respond in their defence, at least 10 working days prior to any hearing, Page 9 of 25

10 9.8. The employee or their representative will be requested to present a written case in response to the allegations, if they wish, this must be provided to the panel at least 5 working days in advance of the hearing date to ensure that this is fully considered in advance of the hearing Any evidence submitted by either the management side or the member of staff less than 5 working days before the hearing may not be considered by the panel. The panel will need to determine whether or not the hearing will need to be postponed to enable the evidence to be considered fully or whether the submission was too late to be considered Whilst it is the responsibility of the employee to liaise with any witnesses they may require to attend the hearing, they are required to advise the employer of who they intend to call as a witnesses to ensure that their attendance at the hearing can be supported Where the employee or their representative is unable to attend a hearing on the date identified, an alternative date will be provided within a maximum of 10 working days from the previously agreed date, unless both parties agree to an extended period Where an employee fails to attend a disciplinary hearing without prior notification then the Trust may offer a further date for the hearing depending on the circumstances and a further failure to attend the hearing could result in the hearing proceeding and possible disciplinary action being taken against them in their absence The Chair of the disciplinary panel will confirm the outcome and any necessary right of appeal, to the employee in writing, within 5 working days of the hearing having taken place, stating the nature of the disciplinary action, the reasons for the disciplinary action and their right of appeal Where formal action has been taken employees may wish to appeal the decision of the disciplinary hearing panel and must do so by putting their request for an appeal in writing to the Head of Human Resources, explaining their reasons, within 5 working days from the date of the outcome letter The letter confirming the outcome of the disciplinary hearing and any notes from the hearing will be removed from the personal file after a period of 12 months following the hearing, where this was an agreed action. A copy of the notes and investigation report will be retained within the HR Department Warnings will typically remain on file for a period of 12 or 18 months however, the Trust does provide the disciplinary panel with the discretion to vary the period of the warning depending upon the severity of the misconduct. This is outlined further in section 16.0 of this policy If the employee is absent for more than 25% of the life of the warning, (excluding annual leave), the disciplining manager may consider extending the original warning to cover the period of absence. This should be discussed with the HR team and confirmed in writing to the employee The Disciplinary Hearing The Hearing will be heard by a Manager who has not had any prior involvement into the process prior to this stage and who holds the appropriate level of disciplinary authority as outlined in Appendix 4. They will be accompanied by a human resources representative. This constitutes the disciplinary panel The following parties will be present throughout the hearing: Page 10 of 25

11 The manager hearing the case HR representative Note taker (if required) The employee The employee s representative or workplace colleague The Case Investigator will normally present the case. HR support to the investigation In exceptional circumstances e.g. the Case Investigator is absent, the HR representative who supported the investigation may present the case in their absence, or other nominated person. In some cases an adviser such as a clinician or other specialist may be requested to accompany the disciplinary panel as a professional advisor, although in every case any decision to take disciplinary action is the responsibility of the manager hearing the case Witnesses will attend only for the period of time when they are being asked to present their evidence and respond to questions. In some situations it may be considered appropriate for witnesses to be accompanied at the hearing Witnesses on either side will not normally be accompanied but in the interests of hearing any evidence any such requests will be considered by the manager/panel hearing the case. If another person is present this will only be in an observer capacity to provide any moral/emotional support and subject to the need to maintain confidentiality From a training and development point of view the manager/panel hearing the case will consider requests from either side and have discretion to allow other persons to attend. This will be strictly in an observer capacity and due account will be taken of any objections from the other side. Observers will be subject to the exchange of sensitive information and must comply with the need to maintain confidentiality The format of hearings will generally follow the procedure as outlined in Appendix At the disciplinary hearing the employee will be advised of the case against them and will be given the opportunity to state their case either personally or through their representative The manager hearing the case will make a decision based on the information presented at the hearing including any mitigating circumstances put forward by the employee or their representative Formal Disciplinary Action The breaches of discipline covered by this procedure fall into two main categories: misconduct and gross misconduct. Examples of these are set out in Appendix Where it is established that there is a case to answer against an individual member of staff, formal disciplinary action will comprise either: a) first written warning b) final written warning c) first and final written warning - this will be issued in instances where a repeat of the incident cannot be tolerated e) dismissal f) extension of a previous warning. Page 11 of 25

12 12.0 First Written Warning In the case of minor infringements or where the informal process has failed to bring about an improvement in the employees conduct or behaviour, the employee should be given a first written warning The first written warning should include: (i) ii) Details of the precise nature of the offence, the right of appeal and where appropriate what improvement is expected of the individual in the future. An indication of the length of time in which the employee must demonstrate their ability to meet and maintain the standards required by the Trust. iii) An explanation that it is a first written warning which will be entered on the employee's record and that any further related offence(s) WILL result in a further warning or dismissal. iv) An assurance that there will be automatic deletion of the warning from the employee's record after 12 months from the date of the warning If the employee is absent for more than 25% of the life of the warning, (excluding annual leave), the disciplining manager may consider extending the original warning to cover the period of absence. This should be discussed with the HR team Final Written Warning Where there is a failure to improve or change behaviour during a prior warning, or where the infringement is sufficiently serious, a final written warning will be issued The final written warning should include: i) A clear statement of the reasons for the action against the employee together with an indication of what is expected of the individual in the future. ii) An indication of the length of time in which the employee must demonstrate their ability to meet and maintain the standards required by the Trust. iii) An explanation that a final written warning will be entered on the employee's record and that any further related offence(s) WILL result in dismissal. iv) The warning must be confirmed in writing to the employee. A copy of this warning, if there is no objection from the employee, shall be sent to his or her trade union, professional organisation or staff association. v) A copy of the first and final written warning should remain on the file for a period of 18 months. vi) An assurance that the individual has a right of appeal and how to exercise this right If the employee is absent for more than 25% of the life of the warning, (excluding annual leave), the disciplining manager may consider extending the original warning to cover the period of absence. This should be discussed with the HR team and confirmed in writing to the employee. Page 12 of 25

13 14.0 First and Final Written Warning A first and final written warning will be issued where the nature of the offence is such that a lesser penalty would be inappropriate because of the seriousness of the action of the employee and that a repeat of the incident could not be tolerated A first and final warning will include those items set out above, as for a final written warning This warning should warn the employee that failure to improve or modify behaviour may lead to dismissal or some other action short of dismissal. It should state the right of appeal A copy of the first and final written warning should remain on the file for a period of 18 months If the employee is absent for more than 25% of the life of the warning, (excluding annual leave), the disciplining manager may consider extending the original warning to cover the period of absence. This should be discussed with the HR team and confirmed in writing to the employee Action Short of Dismissal The manager with authority to dismiss may consider alternatives to dismissal such as transferring the employee to another work area / post within the organisation or downgrading an employee, even if they are subsequently ruled out as an alternative The appropriateness of this will be dependent on individual circumstances and a final written warning will be recorded on the employee s personal file Reductions in pay as a consequence of sanctions taken as an alternative to dismissal will not qualify for protection Extended Warning Periods Exceptionally, where the misconduct is particularly serious, for example involving patients, or a repetition of a previous pattern of misconduct, the disciplinary panel may decide at the hearing to extend a Final or First and Final Written Warning to remain on the file for a period of 2 years instead of 18 months. This decision will be taken at the time of the hearing If the employee is absent for more than 25% of the life of the warning, (excluding annual leave), the disciplining manager may consider extending the original warning to cover the period of absence. This should be discussed with the HR team and confirmed in writing to the employee Dismissal 16.1 Dismissal following a Written Warning (i) No employee shall be dismissed unless: A full investigation of the latest incident has been carried out in order to establish the facts. The employee has been given an opportunity for stating a case, accompanied, if so desired, by a staff representative. Page 13 of 25

14 16.2 Dismissal following Gross Misconduct (i) In cases of gross misconduct leading to summary dismissal the following conditions must be satisfied: (a) Following a full investigation there is reasonable belief as to the facts of the case; and (b) the nature of the offence is such that it affects the relationship between the employee and the Trust or between the employee and any superior, colleague, patient, client or member of the public with whom s/he might have contact in the performance of his/her duties to such an extent that the employee cannot any longer reasonably be retained in his/her present post or other suitable alternative employment with the Trust. (c) Where conclusive evidence of gross misconduct is produced some time after the event (e.g. as a result of a Committee of Inquiry) the employee may be dismissed irrespective of whether a formal warning in writing has previously been given. (ii) Following any dismissal a letter must be sent to the individual within 5 working days. The dismissal letter shall include: - a) A statement relating to who was present at the meeting b) The reason(s) for the dismissal c) The right of appeal through the Head of Human Resources within 10 working days from the date of the written letter of confirmation Disciplinary Sanctions 17.1 It is the aim of the Trust to promote positive discipline and, therefore, there may be occasion when action other than dismissal is more appropriate. Consideration may be given to a transfer, a down-grading or loss of seniority or transfer to another discipline, see section An employee can still pursue an appeal but this would be against the case made for dismissal and not the alternative action which the employee has accepted Where it can be demonstrated, through the usual disciplinary process, that the behaviour of an individual has resulted in unsatisfactory performance this will lead to the incremental pay progression being deferred in line with the Trust s Pay Progression Policy Employment Tribunals 18.1 It is accepted that the appeals procedure will in no way preclude any employee of his/her professional association, trade union, staff association, acting on his/her behalf, registering a claim for unfair dismissal with the appropriate Employment Tribunal Appeals Procedure 19.1 An employee wishing to appeal against Disciplinary Action should state his/her intention in writing to the Head of HR within 10 working days from the date of the written letter of confirmation of the disciplinary action taken. Page 14 of 25

15 19.2 Ordinarily appeals against disciplinary action, other than dismissal, will be heard by a member of management immediately senior to the manager or at the same level to the manager who took the original decision.. However, if a Director is subject to disciplinary action the appeal will be heard by the Chief Executive and if the Chief Executive is subject to disciplinary action the appeal will be heard by the Chairman of the Trust Appeal against dismissal will be heard by two Directors of the Trust supported by a member of the HR team The employee shall have the right to present their appeal personally before the appropriate panel either alone or accompanied by a representative of his/her trade union, professional organisation or staff association, or a fellow employee of their choice Where an appeal hearing is to be arranged this should where possible be arranged to take place within 15 working days of the receipt of the request for an appeal. The Trust will seek to agree appropriate dates with the appellant and it may be that such dates fall outside of the 15 day period All relevant parties should be notified of the date by letter giving a minimum of 5 working days notice for the employee to arrange representation The conduct of all appeals will be shown at Appendix The Chair of the Appeal Panel will confirm the outcome of the appeal, to the employee in writing, within 5 working days of the appeal hearing. There will be no further right of appeal Arrangement of the Hearing The request for an appeal will be acknowledged within 5 working days of being received The Trust will endeavour to ensure that the hearing of the appeal will take place within 15 working days of the receipt of the appeal but the Trust may, on occasion extend this period. The Trust will seek to agree appropriate dates from the appellant and it may be that such dates fall outside of the 15 day period The appellant shall be given at least 5 working days notice of the date of the hearing Exchange of Cases The employee or their representative will be requested to present a written case outlining their grounds for appeal and this must be provided to the panel at least 10 working days in advance of the hearing date to ensure that this is fully considered in advance of the hearing Management side will be required to provide a written response, outlining the reason for their decision making ad taking into consideration the grounds for appeal made by the employee. The management response must be presented to the panel at least 5 working days in advance of the hearing to ensure that this is fully considered in advance of the hearing. Page 15 of 25

16 Any evidence submitted by either the member of staff or the management side beyond 5 working days before the hearing may not be considered by the panel. The panel will need to determine whether or not the hearing will need to be postponed to enable the evidence to be considered fully or whether the submission was too late to be considered Professional Bodies 20.1 Where allegations have been made which relate to a professional matter or to professional misconduct, it may be appropriate to inform the regulating professional body. Before doing so, the line manager/suspending manager should seek advice from the appropriate Professional Lead / Director of Nursing to ascertain if notification is appropriate Disclosure and Barring Service (DBS) Any allegation which leads to the dismissal of an employee or their removal from undertaking regulated activity, as defined by the DBS, will be brought to the attention of the Head of Employee Resourcing, who will discuss with the relevant Trust Safeguarding Lead A referral will be made by the Head of Employee Resourcing to the DBS evidence to support that referral will be collated by the Workforce Directorate and the relevant Safeguarding Lead If the Trust makes the decision to refer a member of staff to the DBS, the member of staff will be notified. Page 16 of 25

17 Appendix 1 Disciplinary Offences DISCIPLINARY OFFENCES The list of rules set out below is not intended to be fully comprehensive or inclusive of all matters which might lead to dismissal or disciplinary action under the Disciplinary Procedure. It is issued in accordance with paragraph 8 of the Industrial Relations Code of Practice, produced by ACAS with states: "Employees should be made aware of the likely consequences of breaking rules and, in particular, they should be given a clear indication of the type of conduct which may warrant summary dismissal". 1.0 GROSS MISCONDUCT The following are examples of the types of offences which, if committed on a single occasion will lead to dismissal unless there are mitigating circumstances a) Theft or attempted theft, from the Trust's premises or property or from patients/clients, other staff or members of the public.* b) Fraudulent manipulation or falsification of accounts, financial statements or other official records (including time sheets/clock cards, clocking or signing for other staff). c) Misappropriation or attempted misappropriation of the Trust's funds or resources. d) Acceptance of gifts and hospitality, in contravention of the Prevention of Corruption Acts 1906 and 1916 or the NHS Executive Circular HSG(93)5 Standards of Business Conduct for NHS Staff (A breach of the provisions of the Prevention of Corruption Acts 1906 and 1916 also renders staff liable to prosecution). e) Failure by any officer to give notice of any financial interest of which he/she is aware, in a contract which has been or is proposed to be, entered into by the Trust. i. Wilful misrepresentation at the time of appointment including ii. previous positions held iii. qualifications held iv. falsification of date of birth v. declaration of health vi. failure to disclose a criminal offence in accordance with the provisions of the Rehabilitation of Offenders Act f) Wilful misrepresentation at any time during employment in connection with qualifications held. g) Consumption of alcohol or misuse of drugs to an extent which affects the satisfactory performance of the employee's duties and/or jeopardises the welfare of patients, members of the public or staff. h) Being under the influence of alcohol and/or drinking during working hours i) Physical or indecent assault on any person whilst on duty and/or on the Trust's premises. j) Ill treatment of and/or sexual offences against patients. k) Deliberate disclosure of privileged and confidential information to unauthorised people. l) Negligent or deliberate failure to comply with the legal requirements and/or the Trust's regulations concerning medicines. Page 17 of 25

18 Appendix 1 Disciplinary Offences m) Working whilst contravening an enactment, or breach of rules laid down by statutory bodies, for example, erasure from the Register or Roll of the United Kingdom Central Council for Nursing, Midwifery and Health Visiting. n) Conviction for a criminal offence or serious conduct outside the working situation which materially affects the employee's capacity to work or clearly indicates his/her unsuitability for the kind of work which he/she is employed to do. o) Malicious or wilful damage perpetrated against the Trust's premises or property whilst in the employment of the Trust. p) Any wilful or reckless act or omission constituting serious or gross negligence and/or dereliction of duty e.g. sleeping whilst on duty. q) Unjustified refusal of a lawful and reasonable instruction which could result in immediate serious consequences. r) Breach of patient or Trust confidentiality, disclosure of patient or Trust identifiable information or bringing the Trust into disrepute via a social networking site or similar electronic forum. s) Serious cases of harassment, victimisation, and bullying of an employee i.e. arising as a result of prejudice against their disability, race, sex, state of health, social class, sexual preference, marital status, nationality, religion, employment status, age, membership or non membership of trade unions. t) Discrimination against a member of staff or the public on grounds of sex, colour, race, creed, nationality or ethnic origin. This is not an exhaustive list. * A breach of disciplinary rules 1a), b), c), d) and o) in respect of conviction of a serious offence could have implications on pension benefits as appropriate. (See also Superannuation Regulations for further details). 2.0 GENERAL DISCIPLINARY RULES The following deviation from general standards of conduct, if recurrent, could result in dismissal, normally following application of the trust's disciplinary procedure, in full or in part, depending upon the circumstances of each case. a) Unjustified refusal of a lawful and reasonable instruction. (If refusal could have immediate serious consequences so that a second opportunity to carry out the instruction could not reasonably be expected, the refusal would be classed as gross misconduct and dealt with accordingly). b) Insubordination or verbal assault whilst on duty and/or on the Trust's premises. c) Unauthorised absence including: i. Persistent lateness. ii. iii. Persistent absence without leave. Being absent from the workplace during the working day for an unauthorised reason(s). d) Failure to observe the formal policies adopted by the Trust. e) Failure to observe laid down Health and Safety instructions (including fire safety). Page 18 of 25

19 Appendix 1 Disciplinary Offences f) Loss of driving licence where driving on public roads forms an essential part of the duties of the post. In certain cases alternative employment may be considered or use of other means of transport where any additional cost is met by the employee. g) Negligence in job performance. h) Abuse of the sick pay arrangements in operation in the Trust. 3.0 GENERAL NOTES 3.1 It is unlikely that any set of disciplinary rules could cover all the circumstances which may lead to disciplinary action. The above list, however, is an indication of the main disciplinary rules applicable to employees of the Trust. 3.2 It is emphasised that there could be other offences/situations not specified in this document which may result in disciplinary action including dismissal. 3.3 Nothing in the above rules prevents the Trust from reporting an individual employee to the appropriate professional body where this is considered necessary, and in such circumstances the individual employee will be notified. Page 19 of 25

20 Appendix 2 Disciplinary Hearing Procedure DISCIPLINARY HEARING PROCEDURE A formal hearing convened under this policy will follow the procedure outlined below: Introductions The manager hearing the case carries out introductions, identifying the role of each person, and explains the format of the hearing. Management Statement of Case The management representative shall present the case for the disciplinary action and may call witnesses, as appropriate. The member of staff and/or his/her representative shall have the opportunity to ask questions of the management representative and witnesses. The panel shall have the opportunity to ask questions of the management representative and witnesses. The management representative shall have the opportunity to re-examine his/her witnesses on any matter referred to in their examination by the manager/panel, the member of staff and/or his/her representative. Staff Side Statement of Case The employee or his/her representative shall present their case in response and may call any witnesses as appropriate. The management representative shall have the opportunity to ask questions of the member of staff and/or his/her representative and witnesses. The panel shall have the opportunity to ask questions of the member of staff and/or his/her representative and witnesses. The member of staff and or his/her representative shall have the opportunity to reexamine his/her witnesses on any matter referred to in their examination by the manager/panel and the management representative. The employee or his/her representative may re-examine the witnesses on any matters referred to in their examination by the manager presenting the case or the panel hearing the case Consideration may be given at this stage for both parties to adjourn to develop their summary. Case Summaries The management representative shall have the opportunity to sum up the case but cannot introduce any new matter. The member of staff and/or his/her representative shall have the opportunity to sum up their case but cannot introduce any new matter. Adjournment The panel may, at their discretion, adjourn the hearing in order that further evidence may be produced by the management representative or the member of staff and/or their representative, or, for any other reason. The panel shall consider the evidence presented at the hearing in private only recalling both parties to clarify any points of uncertainty in respect of the evidence already given. The manager hearing the case may re-call the parties to give the outcome of the hearing or he/she may inform them that the decision will be notified at a later date. In either case, the decision is confirmed in writing, normally within 5 working days. Page 20 of 25

21 Appendix 3 Appeal Hearing Procedure APPEAL HEARING PROCEDURE An appeal hearing convened under this policy will follow the procedure outlined below: Introductions The manager hearing the appeal carries out introductions, identifying the role of each person, and explains the format of the hearing. Staff Side Statement of Case The employee or his/her representative shall present their case in response and may call any witnesses as appropriate. The management representative shall have the opportunity to ask questions of the member of staff and/or his/her representative and witnesses. The panel shall have the opportunity to ask questions of the member of staff and/or his/her representative and witnesses. The member of staff and or his/her representative shall have the opportunity to reexamine his/her witnesses on any matter referred to in their examination by the manager/panel and the management representative. The employee or his/her representative may re-examine the witnesses on any matters referred to in their examination by the manager presenting the case or the panel hearing the case Management Statement of Case The management representative shall present the case for the disciplinary action and may call witnesses, as appropriate. The member of staff and/or his/her representative shall have the opportunity to ask questions of the management representative and witnesses. The panel shall have the opportunity to ask questions of the management representative and witnesses. The management representative shall have the opportunity to re-examine his/her witnesses on any matter referred to in their examination by the manager/panel, the member of staff and/or his/her representative. Consideration may be given at this stage for both parties to adjourn to develop their summary. Case Summaries The member of staff and/or his/her representative shall have the opportunity to sum up their case but cannot introduce any new matter. The management representative shall have the opportunity to sum up the case but cannot introduce any new matter. Adjournment The panel may, at their discretion, adjourn the hearing in order that further evidence may be produced by the management representative or the member of staff and/or their representative, or, for any other reason. The panel shall consider the evidence presented at the hearing in private only recalling both parties to clarify any points of uncertainty in respect of the evidence already given. The manager hearing the case may re-call the parties to give the outcome of the hearing or he/she may inform them that the decision will be notified at a later date. In either case, the decision is confirmed in writing, normally within 5 working days. Page 21 of 25

22 Appendix 4 Levels of Authority LEVELS OF AUTHORITY The levels of management identified below describe the minimum level of authority to take the relevant actions in connection with the Trust s Disciplinary Policy. The identified bands are to be used as an indication only as the banding of posts will differ in different organisational structures. FIRST WRITTEN WARNING The immediate Departmental/Ward Manager Band 7 and above FINAL WRITTEN WARNING/EXCLUSION FROM WORK Business Unit Manager, Matron, Principle Service Lead Band 8a and above DISMISSAL, DOWNGRADING, TRANSFER Divisional Director of Operations, Head of Division, Divisional Nurse Director. 8b and above APPEALS Member of management immediately senior to the manager or at the same level to the manager who took the original decision. Appeals against dismissal will be heard by at least two Directors of the Trust. Divisional Director of Operations will be classified as a Director for this purpose. The job titles identified may vary dependent upon the departmental structure of the area concerned and the makeup of any panel should be discussed with HR to ensure that it remains appropriate. Page 22 of 25

23 Appendix 5 Incident Decision Tree Page 23 of 25

24 Appendix 6 Equality Impact Assessment Equality Impact Assessment To be completed and attached to any procedural document when submitted to the appropriate committee for consideration and approval. Yes/No Comments 1. Does the document/guidance affect one group less or more favourably than another on the basis of: Race Ethnic origins (including gypsies and travellers) Nationality Gender (including gender reassignment) Culture Religion or belief Sexual orientation Age Disability - learning disabilities, physical disability, sensory impairment and mental health problems 2. Is there any evidence that some groups are affected differently? 3. If you have identified potential discrimination, are there any valid exceptions, legal and/or justifiable? 4. Is the impact of the document/guidance likely to be negative? No No No No No No No No No No Not applicable No 5. If so, can the impact be avoided? Not applicable 6. What alternative is there to achieving the document/guidance without the impact? 7. Can we reduce the impact by taking different action? Not applicable Not applicable If you have identified a potential discriminatory impact of this procedural document, please refer it to your divisional E and D lead together with any suggestions as to the action required to avoid/reduce this impact. Page 24 of 25

25 Appendix 7 Document Control Tracking Document Control Tracking To be completed and attached to documents submitted for consideration and approval. After ratification to be included within appendices Document Title: Disciplinary Policy and Procedure Author: Karen Elmer, HR Business Manager New/revised: Revised Policy Summary: The policy has been reviewed as part of the general policy review process. This policy will replace a number of existing policies that are currently in application across the Trust: Disciplinary policy & procedure - Bolton Hospitals NHS Foundation Trust Disciplinary procedure - Bolton Primary Care Trust Disciplinary procedure - Salford Royal Foundation Trust Disciplinary rules - Salford Royal Foundation Trust Disciplinary and procedures policy - Heywood, Middleton and Rochdale Primary Care Trust Procedure for the removal of access to it systems for suspended staff - Bolton Primary Care Trust Policy for handling concerns about the conduct or behaviour of PCT employees - Bolton Primary Care Trust Conduct & disciplinary - The Pennine Acute Hospitals NHS Foundation Trust Staff/Stakeholders Consulted: JNCC members, Workforce, Staff side Section below to be completed by ratifying committee Ratifying Committee: Executive Directors Date presented for Ratification: 23 rd September 2015 Outcome: Ratified Comments: Y Review in September 2018 Ratified subject to minor amendments Not ratified Page 25 of 25