Appeals Procedure. Responsible committee: Ratified by: Joint Consultation & Negotiating Partnership on 11 February 2016

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1 Appeals Procedure Author: Sponsor/Executive: Responsible committee: Ratified by: Human Resources Director of People and Business Development Joint Consultation & Negotiating Partnership Quality, Safety & Governance Committee Consultation & Approval: (Committee/Groups which signed off the policy, including date) This document replaces: Date ratified: June 2016 Date issued: June 2016 Review date: February 2019 Version: 2.0 Joint Consultation & Negotiating Partnership on 11 February 2016 Appeals Procedure v1.2 CPFT and CCS Appeals Procedure V3.0 Policy Number: Purpose of the Policy: If developed in partnership with another agency, ratification details of the relevant agency Policy in-line with national guidelines: P8 To set out the managerial level at which appeals will be heard, to ensure that decisions are in accordance with the principles of fairness, equity and consistency in all circumstances and that due process has been observed in arriving at the decision. N/a Yes Signed on behalf of the Trust:.. Aidan Thomas, Chief Executive Signed on behalf of Staff Side:... Shona Greig, Staff Side Secretary Elizabeth House, Fulbourn Hospital, Fulbourn, Cambs, CB21 5EF Phone:

2 Version Control Page Version Date Author Comments 1.0 Feb 2012 Rachel King New Procedure to provide a consistent approach to appeals. Incorporates appeals from the following policies: Disciplinary Performance Management Grievance Sickness Absence Approved by Staff Consultative Forum on Feb 2013 Rachel King Changes to the following paragraphs: Paragraph 1.2 changed name to Capability Policy and added Dismissal for Redundancy under Organisational Change Policy (removal of paragraph), 5.2 (changed to include termination on grounds of redundancy), (removal of paragraph), 6.1 (added redundancy), 6.1.3, paragraph added on confirmation of packs being sent out, (added paragraph on panel calling witnesses) and 9 (additional monitoring requirements), 10, added section on Equality Analysis, 11 (change name of Capability Policy and added Organisational Change Policy) 1.2 Oct 2014 Rachel King Changes to following paragraphs: Section 5.1 addition of Formal Management Instruction to the Appeal List Section Change of notice to 28 days Section Confirmation of provision of all documentation. Change of timescale for documentation to 21 days Section Change of timescale for documentation to 14 days New Paragraph Provision of documentation at hearing Section 11 Change of policy name to Health at Work Policy Removal of Appendices to Guidance. 2.0 Dec 2015 Rachel King To reflect the changes in the Trust s Disciplinary & Grievance Policies following Harmonisation. References to Grievance Policy removed throughout the procedure and Health at Work Policy renamed Sickness Absence & Employee Wellbeing policy. References to toolkit changed to guidance. Staff changed to employee throughout the procedure.

3 Changes to the following paragraphs: New paragraph 1.3 & 1.4 and previous paragraph 1.3 now 1.5 on grounds of appeal. Paragraph 2.2 additional sentence regarding not rehearing the case and why evidence wasn t available at the original hearing. Removal of paragraph under Line Manager responsibility moved to paragraph 8.1 Paragraph 4.8 additional sentence Paragraph 4.10 removal of sentence Paragraph removal of formal management instruction and clarification of panel members. Paragraph 5.2 removal of Stage 3 grievance Paragraph 6.1 bullet point removed redundancy added to bullet point b. Reference to the new Appeal Form at Appendix A. Removal of Paragraph 7.1 Appeal arrangements moved to guidance Paragraphs renumbered Paragraph 7.5 renamed Appeal Delays and paragraph on previous misconduct removed. New Appendix A Appeal Form

4 Policy Circulation Information Notification of policy release: All recipients; Staff Notice Board; Intranet; Key words to be used in DtGP search. Appeals CQC Standards Other Quality Standards

5 1 Introduction 1.1 This document sets out the procedure for dealing with Appeals within Cambridgeshire and Peterborough NHS Foundation Trust (hereafter referred to as the Trust or CPFT ). 1.2 The Trust is committed to ensuring that all employees are dealt with fairly and consistently and a number of employment policies allow for employees at certain stages of these procedures to make a formal appeal. This policy applies to those situations where employees have a right to appeal against formal action taken in accordance with the following: a. Disciplinary Policy & Procedure b. Capability Policy & Procedure c. Sickness Absence and Employee Wellbeing Policy & Procedure d. Organisational Change Policy & Procedure (Dismissal on the grounds of Redundancy) 1.3 An appeal can only be made on certain grounds, these include: a. the original process/procedure or policy that was followed was incorrectly or unfairly applied; b. the sanction was unfair/too harsh; c. new evidence; undue severity or inconsistency of the penalty. 1.4 An appeal panel will make one of four decisions: a. to uphold the appeal; b. to substitute a different outcome, more or less punitive than the original decision; c. to dismiss the appeal. The appeal is the final stage in any HR procedure. 1.5 There is no right of appeal under the Trust s Dignity at Work Policy & Procedure. However, if an individual is unhappy with the outcome of a Dignity at Work investigation, they should follow the Trust Grievance Policy 2 Purpose 2.1 The purpose of this procedure is to set out the managerial level at which appeals will be heard, to ensure that decisions are in accordance with the principles of fairness, equity and consistency in all circumstances and that due process has been observed in arriving at the decision. 2.2 The Appeal will review those aspects which the appellant believes have given rise to an incorrect or unfair conclusion, including challenging the severity of the outcome, but will not repeat the whole hearing. This may include the submission of new and relevant evidence that was not available at the original hearing and justification of why this was not available at the original hearing. 3 Scope 3.1 For Sickness Absence and Employee Wellbeing this policy applies to all Trust Employees (Including Medical Staff). 3.2 Matters relating to the professional conduct/competence of Medical and Dental staff employed by the Trust shall be dealt with in accordance with Maintaining High Professional Standards in the Modern NHS: a framework for the initial handling of concerns about doctors and dentists in the NHS under cover of HSC 2003/012 Parts I & II and subsequently published Parts III, IV & V. Refer to the Procedure for Handling Concerns around Medical and Dental Employees v2 for guidance.

6 3.3 For appeals relating to Disciplinary Hearings for Medical and Dental staff, these will fall under this policy. 4 Duties 4.1 The Chief Executive The Chief Executive has overall responsibility to ensure that appropriate performance management arrangements are in place for all employees working for the Trust and they are managed responsibly. 4.2 Trust Executive and Non-Executive Directors The Trust Executive and Non-Executive Directors are responsible for sitting as panel members on Appeal panels and acting as Chair of Panel when required. 4.3 Director of People & Business Development The Director of People and Business Development has the overall responsibility for ensuring compliance with this policy. 4.3 Associate Director People Services The Associate Director People Services is responsible for the implementation and monitoring arrangements of this policy. 4.4 Staff Consultative Forum The Staff Consultative Forum has overarching responsibility for the development, approval, monitoring and review of this policy. Reports on numbers of appeal cases and application will be provided to the Staff Consultative Forum. 4.5 Quality, Safety & Governance Committee The Quality, Safety & Governance Committee has overarching responsibility for the ratification of this policy, to receive reports pertaining to the implementation of this policy, as required, and to agree actions to address any gaps identified. It is a Trust Board Sub-Committee, chaired by a Non-Executive Director. If there are any areas of concern that pose a risk or threat to the organisation or delivery of Trust objectives, the Committee will ensure these are being managed appropriately. 4.6 Senior Managers Senior Managers have the responsibility for making decisions on an employee s conduct and capability. They also have the responsibility of collating and presenting information at the appropriate appeal hearings. 4.7 Line Managers All Line Managers involved in the management of employees will need to be familiar with the contents of the Disciplinary Policy and Procedure, the Capability Policy, the Sickness Absence and Employee Wellbeing Policy and the Organisational Change (including Redundancy) Policy & Procedure Employees Employees are expected to follow the Appeals process and adhere to the procedure timescales. 4.9 Human Resources

7 Human Resources will advise managers in dealing with appeals, with the aim of ensuring fairness and consistency in the application of this policy. Human Resources will also act as a panel member in all appeals Professional Advisors Professional Advisors will provide advice and guidance to appeal panels on professional issues arising out of the case. 5 Constitution of Appeal Panels 5.1 First / Final Written Warning Disciplinary For employees the appeal panel shall consist of 3 people, 2 members of the Trust s Senior Management Team (this will be a combination of Trust Executives and Senior Managers 8a and above) and a representative from HR. Additionally a Professional Advisor may be asked to join the panel to provide advice to the panel. 5.2 Dismissal for Capability / Sickness Absence / Disciplinary or Terminations on the grounds of redundancy For employees the appeal panel will consist of 3 people, 2 members of the Trust Board - an Executive Director and a Non-Executive Director; plus a representative from HR. Additionally the panel may call upon Professional Advisor(s) to provide advice to the panel The appeal panel shall not include, as a member of the panel, an individual who has been directly involved in the circumstances leading to disciplinary action or dismissal. 5.3 Professional Leads / Advisors Where possible and if appropriate at least one member of the panel should have specialist knowledge of the discipline / area of work of the employee. Where this is not possible in the cases of an appeal against dismissal, professional advisor(s) may be appointed to advise the panel who is experienced in the particular discipline / area of work of the employee, and who has not been directly involved in the circumstances leading to dismissal. The employee will be informed if this is the case. 6 Appeal Process 6.1 The following process applies to all other appeals at all stages including: a. First and final warning under the disciplinary policy b. Dismissal under disciplinary, sickness absence, capability or Redundancy To submit and appeal, the employee should submit the form at appendix 1 to the Associate Director People Services The employee and their representative will normally receive 28 calendar day s written notice of the hearing. Notice of the hearing will also be sent to the management representative and the HR Professional that supported the previous process The grounds of appeal for the appellant, including all documentation to be relied upon as part of the hearing, must be submitted to the HR Representative on the panel 21 calendar days prior to the hearing The appellant or their representative should complete the form, Appendix 1, in the appeal guidance and submit this with their statement of case Following receipt of the appellant s case, this will be forwarded to the management representative and HR support who should respond to the issues raised in the appellant s case and the management case should be submitted to the HR Representative on the panel 14 calendar days before the hearing

8 6.1.6 The management representative should complete the form, Appendix 2, in the appeal guidance and submit this with 7 copies of the statement of case If any of the above conditions are not met, it may lead to the appeal hearing being rescheduled. The hearing will only be rescheduled once and if the timescales are not met may lead to either party being unable to refer to evidence that have not been submitted in time for the appeal. The same notification arrangements will apply to the rearranged hearing, unless agreed otherwise Documentation will be sent to the appellant and management 7 days prior to the date of the hearing It will be at the discretion of the panel if information that had not been submitted to the Panel and either representative prior to the hearing will be considered at the hearing from both parties. 6.2 Witnesses It is the responsibility of the individual who is calling the witness to ensure that they are aware of the time and date of the appeal hearing and ensuring their attendance Appeals may not be cancelled if the witnesses are unable to attend. If the management representative and the appellant deem that the witness is essential to their case, they should contact the HR representative on the Appeal Panel and explain the reasons for this. The HR representative will discuss the issue with the other appeal panel members who will make a decision on whether the appeal will be rescheduled The appeal panel can, at their discretion, call relevant witnesses to the hearing. The witnesses will only be individuals that have been previously referred to as part of the original hearing. Their role will be to answer questions on information already provided and not to present any new information. 7 The Appeal Hearing The following hearing process will be followed regardless of the type of case. All parties will be present, except witnesses, during the whole appeal hearing. In all cases, the appellant will be required to present their grounds of appeal to the panel first. 7.1 The Appellants Case The appellant or their representative shall state their case in the presence of the management representative and call any witnesses The management representative will then have the opportunity to question the appellant, their representative and the appellant s witnesses The appellant or their representative will then have the opportunity to re-examine their witnesses on any matter referred to in their examination by the management representative or members of the Appeal Panel All members of the Appeal Panel will have the opportunity to question the appellant, their representative and the appellant s witnesses at any point during the evidence. 7.2 The Management Case The management representative shall state Management s case and call any witnesses

9 7.2.2 The Appellant or their representative will then have the opportunity to question the management representative and the management witnesses The management representative will then have the opportunity to re-examine their witnesses on any matter referred to in their examination by the appellant, their representative or members of the Appeal Panel All members of the Appeal Panel can question the management representative and the management witness's at any point during the evidence. 7.3 Summing Up Once the evidence has been heard, the panel will adjourn for the appellant and the management representative to prepare their summing up The management representative and the appellant or their representative shall have the opportunity to sum up their cases if they wish. The appellant or their representative has the right to speak last in summing up. Neither party may introduce any new information The panel may, at its discretion, adjourn the appeal in order that further information / evidence can be obtained, if necessary The management representative and the appellant and their representative shall withdraw. The panel shall deliberate in private only recalling both parties to clarify points of uncertainty on evidence already given, if necessary. If recall is necessary both parties shall return even though only one is concerned with the point giving rise to doubt. 7.4 The Appeal Decision The panel will deliberate the outcome of the appeal; however, the chairperson of the panel is responsible for the decision of the panel The decision will normally be delivered after the adjournment and will be confirmed in writing to the employee normally within 7 calendar days of the hearing. If the panel feels that an immediate decision can't be given, the outcome will be communicated in writing normally within 7 calendar days of the appeal hearing, by the Chair of the Panel The employee will be informed that they have no further right of appeal. 7.5 Appeal Delays If there are exceptional circumstances which prevent anyone from making an appeal within 7 calendar days of the date of the outcome letter, employees may make representations to the Associate Director People Services for an extension to the appeal timeframe, to 21 days. In exceptional circumstances, for example the employee is seriously unwell, flexibility to this timeframe may be required. 8 Education and Training Requirements 8.1 All Line Managers involved in the management of employees will need to be familiar with the contents of the Disciplinary Policy and Procedure, the Capability Policy, the Sickness Absence and Wellbeing Policy, the Grievance Policy and the Dignity at Work Policy. 8.2 In addition, it is mandatory for all newly appointed Line Managers to attend the HR Skills modules, which includes sections on the relevant policies. The module is also available to experienced managers for refresher or development requirements. 8.3 The prime responsibility for managing employees lies with the Line Managers, however, advice and guidance is available from Human Resources, when appropriate and required.

10 9 Monitoring Compliance 9.1 This policy and procedure will be reviewed within 24 months of its agreement or as required in accordance with changes in legislation. 9.2 The effectiveness of the policy will be monitored, taking into account, process, compliance and outcomes. This will be in line with timelines and outcomes within the policy and be reported regularly to the Associate Director People Services, the Workforce Executive and Staff Consultative Forum. 10 Links to Other Documents a. Disciplinary Policy & Procedure b. Capability Policy c. Sickness Absence & Employee Wellbeing Policy & Procedure d. Grievance Policy e. Dignity at Work Policy & Procedure f. Disciplinary Guidance g. Appeals Guidance h. Organisational Change Policy & Procedure 11 References and Acknowledgements a. The Equality Act 2010 b. The ACAS Code of Conduct Disciplinary & Grievance Procedures April 2009.

11 Appeal Notification Form You should read the Appeals Procedure before completing this form. Please complete all sections. Section 1 Employee Details Name: Job Title: Department: Contact telephone number: Contact address: Name of Trade Union Representative: Section 2 Type of Appeal I wish to appeal the following: Termination of Contract Disciplinary Redundancy Capability Ill-Health Disciplinary Sanction Section 3 Grounds of Appeal An appeal can only be made on certain grounds, these include: the original process/procedure or policy that was followed was incorrectly; or unfairly applied undue severity or inconsistency of the penalty; or new evidence, where the evidence was not available at the first hearing.*

12 * Please outline why the new evidence was not available at the first hearing: Please outline your rationale and evidence for your appeal: Attach additional sheet if necessary Please state your desired outcome of your appeal: Signed: Date: Please send this form to: Elaine Bailey, Associate Director People Services, or Elizabeth House, Fulbourn Cambridge CB21 5EE