MODEL DISCIPLINARY PROCEDURES FOR MEMBERS OF STAFF IN VOLUNTARY AIDED CATHOLIC SCHOOLS May 2011 DIOCESAN SCHOOLS COMMISSION Serving Catholic Schools in the Archdiocese of Birmingham Archdiocese of Birmingham Registered Charity No 234216 1
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ARCHDIOCESE OF BIRMINGHAM DIOCESAN SCHOOLS COMMISSION CATHOLIC EDUCATION SERVICE MODEL DISCIPLINARY PROCEDURES FOR MEMBERS OF STAFF IN VOLUNTARY AIDED CATHOLIC SCHOOLS 1 INTRODUCTION 1.1 Disciplinary procedures are necessary for promoting fairness and order in the treatment of individuals and in the conduct of industrial relations. 1.2 By signing the CES Contract of Employment, employees of the school have a duty to develop and maintain the Catholic character of the school. Governing bodies would expect employees to ensure that Gospel values underpin their actions and do nothing detrimental or prejudicial to the school. 1.3 Whilst not definitive, the core Gospel Values, based on the Beatitudes may be summarised as follows 1 : faithfulness and integrity; dignity and compassion; humility and gentleness; truth and justice; forgiveness and mercy; purity and holiness; tolerance and peace; service and sacrifice. 1.4 However, it is also necessary to recognise our human frailness and governors, Headteachers and others charged with the duty of disciplining members of staff, need to ensure that all employees who 1 Christ at the Centre 2005 Fr Marcus Stock STL 1
may become subject to disciplinary action, are dealt with in a fair and equitable manner. 1.5 Advice and guidance contained in the LA area inter-agency child protection procedures and associated guidance for schools must be followed when a member of staff is suspected or accused of child abuse. 1.6 In this procedure, the Diocesan Schools Commission (DSC) shall be taken to refer to the Director of Schools appointed by the Diocesan Ordinary to that post or other senior officer of the DSC, nominated by him/her. 1.7 The local authority (LA) shall be taken to refer to the Director of Children s Services (or equivalent) who is the officer of the area in which the school is situated or other senior officer of the LA, nominated by him/her. 1.8 Diocesan Director of Religious Education (DDRE) shall be taken to refer to the person appointed by the Diocesan Ordinary to that post or other senior religious education officer, nominated by him. 1.9 The following procedures have been adopted by the governing body of the school in accordance with the requirements of the School Staffing (England) Regulations 2009 2 for the conduct and discipline of all staff employed at the school, and conforms to the ACAS Code of Practice 3. 1.10 In order to avoid possible cases of unfair treatment or unlawful discrimination, the governing body should seek advice and assistance from the DSC/LA, on the operation of these disciplinary procedures before commencing any case. 1.11 Where disciplinary procedures could lead to the dismissal of staff and where advisory rights under regulation 27 of the School Staffing (England) Regulations 2009 have been accorded by the governing body, the Director of Children s Services must be consulted and permitted to give advice. Where advisory rights have been accorded by the governing body to the Director of Schools, (in accordance with the recommendation in the statutory Guidance on Managing Staff Employment in Schools 2009, which recommends that similar advisory rights be given to the Director of Schools, as are given to the Director of Children s Services), the Director of Schools or appropriate diocesan officer must also be consulted and permitted to give advice. 1.12 The governing body recognises that these procedures must be capable of withstanding the rigorous scrutiny of any subsequent employment tribunal and no disciplinary warning shall be given unless the procedures have been followed in full. 2 School Staffing (England) Regulations 2009 Section 7 3 ACAS Code of Practice, April 2009 2
1.13 However there is nothing implied in this procedure to prevent any one or more levels of these procedures being omitted if, after careful consideration, the circumstances of the allegations made against the employee, would appear to warrant such action. Such a decision would be very unusual and the governing body must seek advice from the DSC/LA, before such a step is taken, as it may have to be justified at a later date. 1.14 The School Staffing (England) Regulations 2009 4 have given powers to the governing body, to delegate the function of appointment and dismissal of staff to the Headteacher or an appropriate committee. The governing body must have regard to the guidance 5 issued by the Secretary of State in relation to these powers. 1.15 However, the Catholic Education Service strongly recommends that governing bodies continue to exercise their functions in relation to staff appointment and dismissal and retain a proper degree of control as employers of staff. 1.16 Therefore the governing body should establish a staff disciplinary committee with delegated powers, consisting of three governors, for the purpose of hearing any disciplinary cases referred to it for consideration. 1.17 The Headteacher will usually hear cases when the likely outcome is: an oral warning (recorded warning); or a first written warning. 1.18 The governing body will delegate the hearing of cases to an appropriate committee: where the Headteacher has investigated allegations or has had some other prior involvement see paragraph 2.1; where after preliminary investigation the Headteacher considers the case warrants such a referral; where allegations of gross misconduct may lead to a final warning or dismissal; the hearing of appeals. 1.19 It is advisable for governing bodies to appoint both a chair and vicechair of the committee responsible for disciplinary hearings, when it appoints the committee each year. To allow for the possibility that a member of the committee may have prior knowledge of or interest in the alleged misconduct, it is wise to have reserve members. 4 Regulation 4 5 Guidance on Managing Staff Employment in Schools 2009, Chapter 2 3
1.20 Appeals shall be heard by an appeal committee consisting of not fewer than three governors, who shall not include those members previously involved. The Headteacher may not be a member of either the disciplinary or appeal committee. 1.21 The governing body will include in its delegation of powers a requirement for the Headteacher and both committees to report their actions to the governing body, having due regard to the confidentiality of their proceedings and the Data Protection Act 1998. 1.22 This disciplinary procedure is separate and distinct from the grievance procedure, whereby a grievance about employment may be pursued by an employee. The grievance procedure should not be used as a means of imposing any disciplinary penalty on the employee. If however, the question of disciplinary proceedings arises as a result of the hearing of a grievance, it should be dealt with in accordance with the disciplinary procedure set out below. Similarly, disciplinary proceedings shall not be affected or interrupted by the employee invoking the grievance procedure. 1.23 At any time during the operation of these procedures, discussions may take place about the possibility of transferring the employee to any alternative post within the school, by mutual agreement. 1.24 Examples of gross misconduct and misconduct are to be found at Appendix 1. It must be stressed that Appendix 1 is a list of examples only. It is not, nor intended to be, exhaustive. 1.25 The governing body defines gross misconduct as misconduct of such a nature that it cannot reasonably allow the continued presence at the place of work of an employee who commits such an action. It will seek, or require the Headteacher to seek on its behalf, guidance from the DSC/LA on the application of this definition in particular cases. 1.26 On occasion, employees have been known to take sick leave either at the outset of a disciplinary investigation or during the course of the same. Each case must be dealt with on its merits and some general guidance appears in this material at Appendix 2. 1.27 The governing body will require its clerk or an appropriate substitute to attend and make a full record of any disciplinary or appeal hearing held by a committee under these procedures. It will expect the Headteacher to arrange for a full written record to be made, of any hearing conducted by him or her under these procedures. 1.28 Minutes of hearings will be available to the employee or the employee's representative if requested and should normally be provided within ten working days 6 of the meeting. 1.29 No participant should make a sound or video recording of a meeting without the prior consent of all the participants, including witnesses. If 6 Throughout these procedures working days refer to the 195 days the school is in session. 4
the content of the minutes is questioned, the person who wrote the minutes should check his or her notes of the hearing in question, and if no reason is apparent for altering them, refer the question to the Headteacher or the committee (as the case may be), for verification. If a disagreement over the content remains, then the employee may append his/her version of the disputed part to the original minutes, which shall remain unaltered. 1.30 Under the Employment Relations Act 1999 an employee has the right to be accompanied at a disciplinary or grievance hearing if he/she so requests. The employer must permit the employee to be accompanied by one companion 7 who: is chosen by the employee and is either employed by a trade union/professional association, as an official 8 ; or is an official of a trade union/professional association whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a companion at disciplinary or grievance hearings; or is another employee of the school. 1.31 Under these procedures, such a companion or representative may be present at each stage of the disciplinary procedures, other than at informal discussions or in the case of a suspension, when provision is made simply for the employee to choose a witness who is available at short notice. 1.32 Where an employee chooses to be accompanied or otherwise assisted by a representative in accordance with the legislation, the Headteacher, or the clerk to the governing body as the case may be, will seek to arrange hearings etc, in consultation with the chosen companion. 1.33 This procedure shall apply equally to Headteachers as it applies to other employees. In the event of a complaint against the Headteacher coming to the attention of the governing body, the chair of governors or appointed person 9 shall take the role of the Headteacher in issuing warnings and presenting cases. 1.34 It should be made clear to the employee, the level at which the procedure is being implemented, so that the employee is aware at the 7 These procedures are designed to decide fairly on the balance of probability whether misconduct has occurred, rather than to establish the facts beyond reasonable doubt, so they do not normally provide for any employee to have legal representation but see R (G) v The Governors of X School. 8 Within the meaning of sections 1 and 119 of the Trade Union and Labour Relations (Consolidation) Act 1992 9 There may be occasions where the chair of governors should not be involved because there is a possible conflict of interests. e.g. where the chair of governors is also the Headteacher s parish priest and pastor. The appointed person is a substitute for the chair of governors and is appointed by the governing body after consulting with the DSC/LA and the Headteacher s professional association representative 5
outset, of the perceived seriousness of the case and what possible sanctions may be imposed. 1.35 No disciplinary action shall be taken against any representative of a professional association/trade union until the case has been discussed with a full-time official of the professional association/trade union concerned. 2 CONDUCT OUTSIDE NORMAL DUTIES 2.1 Circumstances or allegations may arise, outside an employee's normal duties which give concern to the governing body about the competence of the employee to fulfil responsibilities satisfactorily. If the concern is about conduct which prejudices that relationship of trust and confidence between employer and employee required by the post, it will be appropriate for such matters to be investigated and considered within the disciplinary procedure. If the complaint arises from the actions of the Headteacher, the matter should be considered as in paragraph 1.33 above before the governing body are advised to proceed in accordance with paragraph 1.18 N.B. Governors should be aware of the provisions of S.60 (5) and (6) of the School Standards and Framework Act 1998 see Appendix 3. 3 TIMESCALES 3.1 All notices or documents to be served in pursuance of this disciplinary procedure shall be either delivered personally to the addressee or sent by pre-paid recorded delivery post. If the post is used, service is presumed to be on the second working day after posting. 3.2 All timescales for meetings and hearings may be varied with mutual agreement. 4 THE INFORMAL STAGE - INFORMAL DISCUSSIONS 4.1 It is recognised that many matters relating to support, training, discipline and conduct of staff, may be resolved by informal discussion without recourse to any formal disciplinary procedure and that such discussions form an important part of school management. Records of those informal discussions should not be used as evidence in any disciplinary proceedings. 4.2 Such discussions should not be constrained by, or come within, the scope of this procedure, nor shall counselling and advice given in this informal way, count as warnings within the scope of this procedure. The status of the discussion should be made known to the member of staff. 6
4.3 It may be possible to deal with the matter, by the Headteacher affording informal and unrecorded advice and/or concluding that the allegation/complaint was justified. This exchange between Headteacher and employee may be concluded, with no intention to take action against the employee, whatever the nature of response to the complainant. 4.4 If the Headteacher feels that it is necessary to record informal discussions with an employee about aspects of conduct, a written record of the conversation or aide mémoire should be made. A copy should be given to the employee concerned, in the same way as notes made of discussions about other aspects of an employee's work. Any record of informal discussions should not be recorded on the employee's personnel file. 4.5 Alternatively, the Headteacher may take the view that there is a potentially serious matter, which merits further consideration and may need to be dealt with in a formal disciplinary context. In such a case, where a decision is taken to proceed to the formal stage, arrangements should be made for a disciplinary investigation to take place in accordance with the procedure in section 5. 4.6 The fact that attempts have been made previously to resolve informally aspects of an employee's conduct may be a valid reason for deciding that subsequent misconduct should be dealt with under the disciplinary procedure. 4.7 Any allegation about misconduct on the part of the Headteacher shall be referred, through the chair of the governing body, to the DSC/LA for advice. 4.8 In the case of a Headteacher being the subject of the allegation/complaint, there should be an opportunity for an informal discussion between the chair of governors or an appointed person and the Headteacher, in order to clarify the situation and resolve the matter without further action, where this may be possible. Where, following this informal discussion, it is considered by the chair of governors or the appointed person that there is a potentially serious matter which merits further consideration and may need to be dealt with in a formal context, arrangements should be made for a disciplinary investigation to take place in accordance with the procedure in section 5. 5 THE FORMAL STAGE - INVESTIGATIONS 5.1 The governing body requires all allegations of misconduct to be investigated promptly, to establish whether or not there is a case to answer and whether it should be referred to the staff disciplinary committee of the governing body. 7
5.2 If the Headteacher considers the allegation of misconduct may require formal sanctions, the Headteacher will meet the member of staff concerned. 5.3 For any employee who is the subject of possible formal disciplinary procedures, the interview in paragraph 5.2 above, will ordinarily be held/chaired by the Headteacher. In the case of a Headteacher, or of any employee who already has a final written warning, the interview shall be held by the chair of governors or appointed person. 5.4 The employee shall be informed in writing of: the nature of the allegations that are being considered under the disciplinary procedure; the right to comment; the right to be accompanied by a friend, who may be a representative of the employee's professional association;(see paragraph 1.30) the date, time and purpose of the interview, at least five school working days in advance. 5.5 Where there are considered to be exceptional circumstances preventing the interview taking place, advice should be sought from the DSC/LA. 5.6 If, at the end of the interview in paragraph 5.2 above, the Headteacher (or in the case of a Headteacher, the chair of governors or the appointed person) decides that there is a prima facie case which may result in disciplinary action, then that person shall inform the employee that the complaint is to be investigated formally. 5.7 In cases of alleged gross misconduct the employee concerned will normally be suspended as soon as the preliminary investigation has taken place. See section 10 below. 5.8 Where possible, the Headteacher should commission a senior manager in the school or other suitable person 10 to act as investigator. The governing body expects the investigation to be undertaken by someone of appropriate seniority and experience with no previous involvement in the alleged misconduct and who, where possible, has completed suitable, training. 5.9 The Headteacher may undertake the investigation, provided that the Headteacher does not then hear the case. For guidelines on conducting investigations, see Appendix 4. 10 For example an auditor in the case of suspected fraud 8
5.10 If the allegations concern the Headteacher, the chair of governors or an appointed person should contact the DSC/LA for advice on conducting the investigation. 5.11 When a separate investigation has been undertaken under another procedure or by an external organisation (such as the authority s audit section or the police), it is still necessary to investigate under this disciplinary procedure, although the disciplinary investigation may be short and will use evidence from the other investigation. 5.12 LA advice should also be followed when interviewing a child in respect of any allegations being investigated. 5.13 Other than in child protection cases, if there are witnesses to the allegations, signed and dated statements should be obtained at the earliest opportunity. The expectation would be that where there is a witness statement, the witness would appear at any subsequent hearing unless there were exceptional circumstances or the witness was a child. 5.14 Where an employee is on sick leave, advice should be sought from the DSC/LA, see also Appendix 2. Normally the process of investigation should proceed as far as interviewing other witnesses. 5.15 When the investigation is complete the Headteacher or in the case of a Headteacher, the chair of governors, will consider the results (including any adjustments that may have been made during discussions as provided in the investigation guidelines) and decide whether the facts: do not warrant further action; or amount to a situation which can be resolved by informal discussions in accordance with section 4 above; or warrant a hearing in accordance with these procedures. 5.16 All information collected during investigations shall remain confidential to the person(s) directly involved. 5.17 If there is no case to answer, the Headteacher or in the case of a Headteacher, the chair of governors, will inform the employee of the outcome. 6 THE FORMAL STAGE - HEARING CASES OF ALLEGED MISCONDUCT AND GROSS MISCONDUCT 6.1 If, on receipt of the report of an investigation, the Headteacher decides that there is a case to answer and that a hearing is therefore required, see paragraph 1.17, the Headteacher shall conduct such a hearing, or, in the cases specified in paragraph 1.18 above, he/she shall refer the case to the appropriate committee of the governing body for a hearing. 9
6.2 The governing body must also inform the DSC/LA of any allegation which, if upheld at the hearing, might lead the governing body to determine that the employee should cease to work at the school. This is in accordance with the provision made under the relevant agreements 11, and to ensure that the LA will meet the costs of any claim by an employee arising from the application of the school s disciplinary procedures. 6.3 In order to ensure that the employee has enough time to prepare his or her response to the allegation(s), reasonable notice of the hearing should be given. This should be at least fifteen working days, with the formal notice being sent by hand delivery or a postal service guaranteeing delivery on the following day. It is helpful to agree a date with the employee's trade union/professional association if they are already involved in the case, before sending the formal notice to attend the hearing. 6.4 A formal notice in writing should be issued to the employee to attend a hearing by the Headteacher or by the committee, with an explanation of the hearing's purpose and its place in the disciplinary procedures. The letter should not only state the substance of the allegation and possible consequences but should also: include copies of any documents to be used at the hearing; remind the employee of the right to be accompanied and/or represented; explain the procedures to be followed at the hearing; give the names of the person(s) hearing the case; 6.5 The letter should also ask the employee: to confirm that he/she will attend the hearing in person; to indicate whether he/she wishes to be accompanied by a representative see paragraph 1.30 of this procedure and to call witnesses; to provide, at least ten working days before the hearing, any documentation and give the names of witnesses whom he/she has asked, or intends to ask, to appear on his/her behalf. 6.6 Names of witnesses from both sides should be circulated in advance (see paragraph 6.3) and all witnesses should be asked to provide a written statement for inclusion with the documents to be used at the hearing. 11 A service agreement on the provision of personnel services between the authority and the governing body counts as a relevant agreement under the Regulations 10
6.7 A second set of papers should be enclosed for the employee's representative. 6.8 The employee may suggest an alternative time and date, as long as it is reasonable and is not more than five working days after the original date. The Headteacher or committee (as the case may be), may reject this suggestion but will do so only if it is unreasonable, when they may proceed to hear the case in the absence of the employee or the employee s representative. The Headteacher or committee should take advice from the DSC/LA on what is unreasonable 12. There is also the discretion to defer the date of the hearing by a longer period in order to reach mutual agreement on a convenient date, having particular regard to the availability of the employee s representative. 6.9 Where the hearing is before a committee of the governing body, the clerk to the governing body is required to ensure that all parties to the hearing receive copies of all documents at least five working days before the hearing. Normally only evidence which could not be obtained at an earlier date, may be provided after the times specified above. 6.10 There is no requirement for the employee to submit any documentation, other than a statement from any witness who may be called by the employee. However, if the employee does not intend to submit any documentation, there should be a positive statement from the employee or the employee's representative to this effect. Neither side will be able to use at the hearing any evidence not previously provided unless agreed by all parties. 6.11 The expectation would be that, where there is a witness statement the witness would appear at the hearing unless there were exceptional circumstances or the witness was a child. 6.12 Anyone solely providing a character reference need not attend. 6.13 When a case is to be heard by the appropriate committee of the governing body, the Headteacher or his/her nominee should present the case to the committee, unless the Headteacher is the subject of the hearing, in which event the chair of the committee should seek the advice of the DSC/LA, on securing an appropriate person to present the case. 6.14 In the case of a Headteacher being the subject of complaint, the complaint may be presented by the chair of governors or an appointed person, calling on the investigator to give evidence, and the Headteacher shall be granted the same rights for questioning and representation as any other employee. 6.15 If the Headteacher is conducting the hearing, an appropriate senior member of the leadership team in the school should present the case (with the hearing being recorded as specified in paragraph 1.27 12 Advice would be in accordance with the ACAS Code of Practice 2009. 11
above). If there is no such appropriate senior member of staff, then the hearing should be conducted by a committee of the governing body. 6.16 Where the DSC/LA have been afforded advisory rights, the DSC/LA are entitled to attend all proceedings of the governing body (including committees of the governing body), which may relate to a determination that a person employed at the school should cease to work there. 6.17 The DSC/LA attend hearings to give advice and the governing body must consider any such advice. 6.18 The Headteacher is entitled to attend proceedings 13. 6.19 The Headteacher may be presenting the evidence from the investigation or be called as a witness. In these cases he/she should attend the proceedings only in the role described. The Headteacher s presence in any other capacity could be open to challenge on the grounds of fairness. 6.20 Headteachers and governors are reminded that they should not discuss aspects of the case outside the formal procedures. 6.21 When conducting the hearing the committee will: follow the procedures set out in Appendix 5; have regard to any guidance issued from time to time on conducting a hearing. 6.22 The committee shall announce its decision to the parties in person or subsequently in writing, as the committee shall determine. An oral announcement shall be confirmed in writing subsequently, including the right of appeal. The Headteacher holding a hearing shall announce a decision in a similar way. 6.23 The committee may determine that: no formal action be taken; or a formal oral warning be given (in which case it will be recorded in writing that an oral warning was issued); or a written warning be issued; or a final written warning be issued; or in the case of gross misconduct the employee shall be dismissed and dismissal notice issued. 13 The School Staffing (England) Regulations 2009, Regulation 4, paragraph 3 12
6.24 No warning that has been expunged from the employee's record by virtue of the timescale given in paragraph 7.5 below, may be considered during any disciplinary interview. Any warning not so expunged may be considered after a decision has been arrived at, as to the facts of the matter, and before the level of action is determined under paragraph 6.23 above. 7 FORMAL WARNINGS 7.1 The employee shall be informed orally of the decision before the interview or meeting is declared closed. 7.2 The decision shall be confirmed in writing within seven working days. This written confirmation shall include: the nature of the misconduct; the nature of the warning now issued; the consequences of further misconduct, including, for a final written warning, a statement that further misconduct of any kind, if substantiated through disciplinary proceedings, may result in dismissal; any support to be made available to the employee; details of any current, previous warnings; a statement that the warning will be placed on the employee's personal file for the duration of the warning; the time that the formal warning shall remain on record see paragraph 7.5 below; the right of appeal see section 8 below, including the period within which notice of appeal must be given and to whom that notice should be sent. 7.3 A copy of the above to be given to the employee s representative, should the employee so wish. 7.4 The employee shall be sent two copies of the written confirmation of the disciplinary action taken. One copy is to be retained by the employee. The other copy should be signed and returned to the person from whom the letter originated, together with any comments the employee wishes to make in writing. The whole return, including the employee's comments, shall be placed in the employee's record. Failure to return the copy shall not invalidate any disciplinary actions or their recording. 13
7.5 The time that formal warnings shall remain on record shall be in accordance with the following timescale: formal oral warning six months; written warning one year; final written warning two years. 7.6 Warnings will cease to be live following the specified period of satisfactory conduct and shall be disregarded for future disciplinary purposes after the expiry of the appropriate period of time. Subject to paragraph 7.8 below warnings will be removed and destroyed or surrendered to the employee upon request. 7.7 If, while the warning remains on the employee s file, the employee s misconduct is found to have been repeated then the employee s disciplinary record may be borne in mind at the point when it is decided which level of disciplinary sanction to issue. 7.8 In certain circumstances however, a disciplinary record must be retained permanently on the personal file. This will apply where the disciplinary sanction is for misconduct involving issues relating to the safety and welfare of children or young people, as required by the Government s guidance on safeguarding children. It will also apply in the case of a final written warning for misconduct involving sexual misconduct, assault on a client or employee, or harassment or abuse. 7.9 Where any warning is withdrawn by appeal at any stage in the procedure, that warning shall be removed and destroyed and any lesser warning shall be substituted. 8 APPEALS AGAINST DISCIPLINARY FINDINGS 8.1 An employee has the right of appeal against any disciplinary sanction taken under this procedure or against a determination to cease to work at the school, or a dismissal from the school. An appeal against a decision to impose a disciplinary sanction or to determine that an employee should cease to work at the school (or be dismissed as the case may be), whether taken by a Headteacher or by a committee of the governing body, shall be to the appeal committee established by the governing body. See paragraph 1.20 8.2 The grounds for the appeal should be accompanied by any additional evidence to be presented in support of the appeal. If the employee so wishes there is no requirement to submit any documentation, other than a statement from any witness who may be called by the employee. However, if the employee does not intend to submit any documentation there should be a positive statement from the employee or the employee's representative to this effect and the employee will not be able to use at the hearing any evidence not previously provided. 14
8.3 Where the disciplinary hearing was heard by the Headteacher or staff disciplinary committee of the governing body as a result of paragraph 6.1, the employee shall be entitled to appeal against any formal disciplinary action decided by the staff disciplinary committee. Notice of appeal shall be addressed to the clerk to the governors no more than ten school working days after the receipt of the written decision of the committee. The written statement of appeal by the employee shall indicate the grounds of the appeal. 8.4 The clerk to the governing body will immediately notify the Headteacher or the representative of the disciplinary committee (whichever took the decision against which the employee is appealing) of all the grounds of appeal and any additional evidence, with a request to submit any additional papers in response to the clerk within seven working days. 8.5 The clerk to the governing body will then arrange an appeal committee hearing as quickly as possible; to take place, other than in exceptional circumstances, within twenty working days of the employee s notice of appeal. The clerk should make every effort to agree a date with the employee's trade union/professional association if they are already involved in the case, before sending the formal instruction to attend the hearing. The employee may suggest an alternative time and date as long as it is reasonable and is not more than five working days after the original date. The committee may reject this suggestion if it is unreasonable and may proceed to hear the case in the absence of the employee or the employee s representative. The committee also has the discretion to defer the date of the hearing in order to reach mutual agreement on a convenient date, having particular regard to the availability of the employee s representative. 8.6 The clerk to the committee shall give at least ten working days formal notice of the hearing to all the participants, and in the same letter shall, set out the order of the proceedings, remind the employee of the employee's rights at the hearing, including the right to request to be accompanied by a representative of his or her choice who is either a union official or another of the employer s employees (see paragraph 1.30 above), list the members of the appeal committee, give the names of witnesses, and confirm the options for action which the appeal committee may take (see paragraph 8.8 below). All documents relevant to an appeal hearing shall be enclosed with the letter. The witnesses may include, as appropriate to the circumstances of the case, the Headteacher and/or a member of the committee which took the decision against which the employee is appealing, or the person who presented the case, if that person was not the Headteacher. 8.7 The normal procedure for an appeal hearing is set out in Appendix 6. The appeal committee will have regard to any guidance issued from time to time by the DSC/LA on conducting an appeal hearing. 15
8.8 The appeal committee may dismiss the appeal, uphold the appeal, and/or reduce the severity of the warning or substitute a warning for a determination that an employee should cease to work at the school or a dismissal from the school. 8.9 The appellant may choose whether to hear the appeal committee s decision in person or receive it subsequently in writing, but this choice shall not prevent the committee from choosing to adjourn and reconvene before making a decision. An oral announcement shall be confirmed in writing by the clerk to the governing body within ten working days of the hearing. 8.10 The employee may withdraw an appeal by notice in writing to the relevant person/body at any time. 8.11 If there is to be a re-hearing the procedure in Appendix 5 will be followed. 9 ALLEGED MISCONDUCT ON THE PART OF TRADE UNION OFFICERS 9.1 Normal disciplinary standards of behaviour should apply to employees who are trade union officers. However, disciplinary action against a trade union officer can be misconstrued as an attack on the union. Such problems can be avoided by early discussion with a full-time official or senior trade union representative. 10 SUSPENSION 10.1 Under the Regulations 14 the governing body and the Headteacher of a school both have the power to suspend any person employed or engaged otherwise than under a contract of employment to work at the school where, in the opinion of the governing body or (as the case may be) of the Headteacher, the suspension of that person is required. 10.2 Only the governing body can lift a suspension. 10.3 The governing body recognises that a decision to suspend is normally a management decision for the Headteacher. However, if, the governing body has delegated this power 15 or the chair of governors contemplates the need to use emergency powers, advice should be taken from the DSC/LA before taking action. 14 The School Staffing (England) Regulations 2009, regulation 31 15 The governing body may consider it prudent to delegate its power to suspend to the chair of governors (or in his absence the vice chair), but limit this to issues concerning the Headteacher or where the Headteacher advises he has a personal prejudicial interest. In such a case the terms of reference of the delegation should include the stipulation that action should not be taken without first seeking advice from the DSC/LA. 16
10.4 Following delegation of powers, any action taken is subject to being reported to the governing body and any such delegations are subject to annual review. 10.5 Suspension from duty should only be considered in exceptional circumstances, i.e. where the interests of the employee need to be protected, when the allegations relate to child protection or safeguarding issues or in which suspension is necessary to protect the integrity of the investigation. 10.6 It should be understood that the purpose of suspension from duty is to provide for a serious disciplinary matter to be investigated or to provide a remedy for management difficulties arising from a disciplinary allegation. It is not in any sense a punishment or prejudgement of matters under consideration. 10.7 Suspension shall be on full pay and for as short a period of time as is practicable. Suspension shall be followed by consideration of the matter leading to it, in accordance with the disciplinary procedure. 10.8 The governing body recognises that suspension is not a disciplinary sanction but a neutral act, without loss of pay. Advice should be taken from the DSC/LA as to whether any other action, such as a temporary direction to undertake other duties, might be more appropriate than suspension. 10.9 An employee who, on preliminary investigation, is suspected of gross misconduct, see Appendix 1 will normally be suspended immediately after that investigation. This should normally take place in a special meeting called in accordance with these procedures. In the absence of the employee or if a meeting is impractical for another good reason other arrangements should be made. 10.10 The Headteacher will ask the employee to accompany him/her to his /her office or other suitable place, where the Headteacher will explain that a short meeting is to be called to tell the employee about a serious matter. 10.11 The Headteacher will explain that under the disciplinary procedure the employee is entitled to choose a witness able to attend at short notice, because it might be necessary to suspend the employee. 10.12 Where possible, the meeting to inform the employee of a suspension should have two witnesses, one chosen by the Headteacher and one by the employee, provided that the procurement of witnesses does not delay the meeting. 10.13 The Headteacher will then ask the employee to wait in a nearby room whilst the witnesses, either members of staff or someone within a few minutes journey, are asked to come to the meeting. 10.14 The governing body, by adopting this procedure, accepts the desirability of each party having a witness to a suspension whilst 17
recognising that suspension, if appropriate, cannot be delayed and that the choice of witness will therefore be limited. The witness will not be expected to fulfil the role of a representative; the employee will be entitled to a representative in later stages of the procedure. 10.15 At the meeting the employee will have the right not to say anything in response to what the Headteacher will disclose, although it should be explained that refusal to respond will probably make suspension inevitable. 10.16 In the case of allegations under the child protection procedures the employee will be informed simply that allegations have been made and that no details can be discussed at the meeting. 10.17 Depending on the response, the Headteacher may or may not adjourn the meeting, before deciding whether or not to suspend the employee. 10.18 When the decision is to suspend, the employee will be informed of the decision and written confirmation of the decision shall be given to the employee at the meeting or sent immediately after the suspension is notified. 10.19 This formal letter of suspension see Annex C 16 shall include the following: the specific reason for the suspension, including a summary of the alleged misconduct; the date and time from which suspension took effect and a statement that it may last until the disciplinary procedure is complete; the likely duration of the school s investigation, and confirmation that the employee will be interviewed during that investigation, except when allegations relating to child protection are being managed by an organisation external to the school; a statement that suspension is a neutral act; a statement that the suspension shall be without loss of pay; the rules of suspension, e.g.: o o the employee should not return to the place of work without prior permission and should not contact any pupils; he/she should not contact other employees involved in the alleged misconduct, unless he/she wishes to call one or more of such 16 Supporting Documents for Model Disciplinary Procedures for Teachers in Voluntary Aided Catholic Schools 2010, 18
employees as witnesses at a forthcoming hearing. This contact may be made by the employee or the employee s representative and need not be made through the school. (Special arrangements are to be made if the employee lives on the school site or is related to another employee. Take advice from the DSC/LA as appropriate); a statement that statutory regulations require the suspension to be reported to the governing body and an assurance that the reasons for the suspension will not be disclosed, so that any subsequent hearing will not be prejudiced. 10.20 The Headteacher should keep the case under review throughout the period of suspension and maintain contact (through an agreed named person if not through the Headteacher) between the school and the employee, who must be kept informed of progress. The first contact should be made within twenty working days of the suspension and at appropriate intervals thereafter. The Headteacher should also, subject to the DSC/LA s advice on the constraints attached to certain types of misconduct (particularly where criminal prosecution may be or is pending), expedite proceedings under this procedure, as far as is possible. 10.21 Employees in need of pastoral support should be advised to contact their parish priest, union or professional association or other appropriate organisation. 17 10.22 The employee must not return to school until the governing body's decision to end the suspension is communicated to the employee in writing. 11 SUSPENSION OF A HEADTEACHER 11.1 When suspension of a Headteacher takes place the chair of governors or a governor with appropriate delegated authority shall proceed in accordance with section 10. 11.2 When a Headteacher is suspended, a nominated governor should be responsible, with advice from the DSC and LA, for keeping the case under review, maintaining contact with the Headteacher and expediting proceedings as set out in section 10. 11.3 Those empowered to lift suspension shall inform the Headteacher, the DSC and the LA immediately whenever they take such a decision. 17 See footnote 8 19
20
These procedures have been agreed between representatives of the Catholic Archdiocese of Birmingham Diocesan Schools Commission the teacher organisations listed below: The Association of Teachers and Lecturers The National Association of Headteachers The National Association of Schoolmasters Union of Women Teachers The National Union of Teachers The Association of School and College Leaders And also the following organisations: UNISON GMB Dated 10 February 2011 21
APPENDIX 1 1 GENERAL DEFINITIONS 1.1 It must be made abundantly clear that the following is not an exhaustive list but is illustrative and it is merely a guide to the kind of employment conduct for which dismissal or warning might be considered options. 1.2 Moreover, each case must be considered carefully on its own individual facts and circumstances. Where gross misconduct is alleged and where governing bodies are minded to embark upon disciplinary action, the governors should always seek the advice of the DSC/LA. 1.3 Gross misconduct means an act, or series of actions, that fundamentally repudiates the contract of employment. It may justify summary dismissal unless there are extenuating circumstances. 1.4 Please note that conduct described in the examples of gross misconduct may, on investigation, be better described as misconduct. 1.5 Gross misconduct may include: conduct on the part of a member of staff which is incompatible with the precepts, or with the upholding of the tenets, of the Catholic Church; serious dishonesty, such as theft of property, deliberate falsification of reports, or falsification of salary or expenses claims for pecuniary advantage; falsification of any information given in applying for a teaching/non-teaching post, and failure to disclose criminal convictions; deliberate refusal to carry out a reasonable, lawful and safe instruction; wilfully ignoring responsibilities or instructions thereby placing other members of staff and/or pupils in danger; gross negligence in failing to attend to or to carry out the duties of the post; being under the influence of alcohol or other drugs unless this is in accordance with medical advice; acts of violence or vandalism in the course of employment; 22
sexual misconduct at work; serious misconduct that contravenes Child Protection Policies; discrimination, harassment or victimisation possession, custody or control of illegal drugs on the school premises without good reason; deliberate accessing or posting to internet sites or sending e- mails containing pornographic, offensive or obscene material; abusive, threatening or offensive behaviour or language; serious misconduct not listed elsewhere that brings the school into disrepute. 1.6 Misconduct is less serious than gross misconduct, but could lead to dismissal if repeated. 1.7 Misconduct may include: absenteeism, such as failure to remain at the place of work during school sessions without permission or sufficient cause, or failure to comply with sickness reports and absence regulations; frequent failure to attend punctually at school or other place of work; dishonesty and petty wrongs, such as making unauthorised private telephone calls or sending unauthorised personal mail at the school s expense; negligent use of school property; deliberate, unauthorised disclosure of information classified as confidential; 18 18 (But see Public Interest Disclosure Policy) 23
APPENDIX 2 1 SICKNESS DURING DISCIPLINARY INVESTIGATIONS 0R HEARINGS 1.1 It is not unusual for a disciplinary procedure to deal directly with the issue of an employee being sick during a disciplinary investigation/hearing. Therefore this guidance is provided as to what can be done in such circumstances. 1.2 The most obvious initial response is postponement. This however will not be satisfactory for many governing bodies since it can lead to uncertainty as to when the employee will return and therefore when a hearing can be held. In cases of short-term sickness however, this may be a sensible solution. 1.3 The governing body needs to consider, before it acts within the disciplinary context, the appropriate standards of fairness, rules of natural justice, as well as its own procedures. Failure to do this could result in claims of breach of contract. 1.4 The basis of disciplinary procedures will normally be, to accord the employee: a reasonable opportunity of personally stating his/her own case; obviously where the employee is on sickness absence the employee cannot comply with this. The reasonableness of this will be judged by the length of his/her absence (as known/expected) at the time of the hearing against all other considerations. Should it be deemed reasonable, i.e. if the employee s return is not expected in the short term, it may be fair to go ahead with the hearing once the employee and his/her representative have been advised. In this situation the employee s representative should be given full opportunity to present the employee s case; a reasonable opportunity to question witnesses giving evidence or to call evidence; refusal of either of these could result in a claim of breach of contract. The implications of the first point are greater since, with regard to the second point, it may not necessarily be a breach of natural justice if the employee is not present throughout the evidence against him/her, provided that the representative is present and that he/she have been advised by the employee. It could therefore be reasonable to allow the employee s representative to question witnesses and call evidence in the employee s absence. If the employee s representative refuses to attend, the hearing may still go ahead, since an opportunity would have been afforded to the employee or the employee s representative to make representations. It may however be prudent to afford both parties the opportunity to attend a hearing at a later date. 24