Human Resources Disciplinary Policy Document Control Summary Status: Version: Author/Owner: Approved by: Ratified: Related Trust Strategy and/or Strategic Aims Implementation Date: Review Date: Key Words: Associated Policy or Standard Operating Procedures Replacement Disciplinary Policy v.5.1 Date: March 2017 Alyson Sargeant Head of Recruitment and Resourcing Policy and Procedures Committee Date: 23 March 2017 Trust Board Date: 25 May 2017 Provide high quality recovery focused services Respect, inspire and develop our workforce Deliver regulatory, financial, performance and quality standards May 2017 May 2020 Disciplinary, Conduct, Investigation, Misconduct, Gross Misconduct, Suspension, Hearing, Appeal, Disciplinary Sanction This Policy should be read in conjunction with the following Dignity and Respect Policy Redeployment Policy Health & Safety Policy Substance Misuse (for employees) Policy Risk Management Framework Policy Performance Management Policy and SOP Maintaining High Professional Standards In The Modern NHS Department of Health Social Networking Policy Incident Policy Managing Attendance Policy Bullying and Harassment Policy Dress Code Policy Fraud and Corruption Policy Grievance and Disputes Policy Information Governance Policy Professional Boundaries and Relationships at Work Policy Totally Smokefree Policy
Page 2 of 13 Disciplinary Policy
CONTENTS Introduction, Principles, Scope and Purpose Page 3 Duties and Responsibilities Pages 3-4 Related Documents Page 4 Disciplinary Counselling Page 4 Suspension and Redeployment Page 4 5 Safeguarding Page 5 Investigation Page 6 Disciplinary Hearing Page 6 Disciplinary Sanctions Page 7 Disciplinary Sanctions Meeting Page 7 Appeals Page 8 Employee Representation Page 9 Disciplinary Standards Page 9 Referral to the Disclosure and Barring Service Page 10 Referral to the Professional Bodies and Outside Agencies Page 10 Training Page 11 Monitoring Page 11 Appendix 1 - Disciplinary Hearing and Appeal Hearing Page 3 of 13
1. INTRODUCTION The purpose of the Disciplinary Policy is to encourage employees to achieve and maintain high standards of conduct and behaviour in accordance with the requirements of the Trust and to provide a policy for disciplining employees in a fair and consistent manner who fail to meet these standards. 2. PRINCIPLES Any matters relating to an employees conduct must be dealt with promptly, fairly and consistently and with due regard to Equality, Diversity and Human Rights. Every effort will be made to deal with matters in a manner that ensures confidentiality of the issues, however where there is an alleged criminal offence or identified risk to patient, or employee safety and there is a requirement to disclose information to the police, Employment Tribunal and/or Courts, professional or statutory bodies then in such circumstances confidentiality cannot be guaranteed. 3. SCOPE AND PURPOSE This policy applies to all employees of the Trust and should be read in conjunction with all appropriate codes of conduct/rules for professional bodies. Whilst this procedure applies to medical and dental staff, including those with honorary contracts, the Procedure for Maintaining High Professional Standards in the NHS should be referred to initially. The policy does not apply to issues of capability/poor performance or poor attendance due to sickness, which should be dealt with in accordance with the Performance Management Policy, Remediation Policy (for Medical Staff) or Managing Attendance Policy respectively. The Disciplinary Policy has been written in accordance with the ACAS Guide and is designed to assist line managers, employees and trade union representatives deal with disciplinary situations in the workplace in a fair and consistent manner. 4. DUTIES AND RESPONSIBILITIES 4.1 Trust Board The Board has responsibility to oversee this policy and ensure that appropriate processes and actions are in place to ensure employees are treated in a fair and consistent manner. 4.2 Divisional/Corporate Directors Are responsible for ensuring appropriate systems and processes are in place across their Division to monitor timescales for disciplinary investigations, disseminate shared learning from any matters arising from the investigations, for appointing investigating officers and ensuring that disciplinary matters are dealt with in a timely manner and in accordance with this policy. 4.3 Line Managers Line Managers are responsible for ensuring employees are aware of this policy and its contents and that their employees understand the standards of conduct and attendance required. They are also responsible for ensuring that high standards are maintained, bringing any concerns they may have about a particular employee to their attention in a timely and sensitive manner. 4.4 Department of Human Resources The Human Resources Department will provide support and guidance to the process to ensure a fair and consistent process is followed. Page 4 of 13
4.5 All Staff Where a formal disciplinary investigation is invoked, employees are required to participate fully in the investigation, in a timely and constructive manner, whether this concerns them personally or a work colleague. The purpose of an investigation is to establish the facts fully and as quickly as possible and, unless all contribute appropriately, the findings may be incomplete, possibly resulting in inaccurate conclusions being drawn. Where an employee wishes to be accompanied or represented during the formal stages of the procedure by either their trade union representative or trust employed work colleague they will be responsible for arranging this. 4.6 Trade Unions The role of the trade union representative or Trust employed work colleague is to act as an advocate and to provide the employee with advice and support on matters relating to staff discipline. 5. RELATED DOCUMENTS Disclosure and Barring Service (DBS) Duty to Refer Maintaining High Professional Standards in the NHS Professional Codes of Practice ACAS Guide to Disciplinary and Grievances at Work SSSFT Performance Management Policy SSSFT Redeployment Policy 6. INFORMAL STAGE 6.1 Disciplinary Counselling In some cases it may be appropriate for a line manager to counsel the employee regarding their conduct with the aim of improving their behaviour. Serious cases of misconduct should be addressed at a formal level even if they are a first offence. When counselling an employee on the expected behaviour the manager should explain the purpose of the counselling and outline the issues of concern. During the meeting the possible consequences and impact of the employee s behaviour should be explained. The manager should ensure the employee understands the standards of conduct expected and explore the need for further training or support to enable the employee to achieve these standards. This may include reference to the relevant codes of professional conduct. It should be emphasised to the employee that future misconduct of a similar or related nature will lead to a formal disciplinary process. The outcome of the meeting should be confirmed to the employee in writing, this information should be kept on the employee s personal file for future reference. 7. SUSPENSION AND/OR REDEPLOYMENT 7.1 Suspension In certain cases it may be necessary to suspend the employee from duty. Suspension should only take place where there is a risk to patient safety, the member of staff or colleagues and/or to ensure the investigation can be completed unhindered and redeployment is not a reasonable alternative (see below). A risk assessment must be completed by the line manager prior to any decision being taken. Where suspension (exclusion) is being considered for medical staff the Procedure for Maintaining High Professional Standards in the NHS should be referred to initially. Page 5 of 13
Suspension is a neutral act and is not a disciplinary sanction. Suspension is on full pay as defined below. Pay means the guaranteed remuneration that the employee would have received had they been at work, it is calculated based on a reference period of the previous 12 weeks at work. For the avoidance of doubt overtime, out of hours enhancements and bank shift payments are not guaranteed earnings, are not included in the definition of pay and therefore will not be paid during periods of suspension from work. During the period of suspension, the suspended employee must not attend their place of work, or any of the Trust s other establishments, unless instructed by management to do so or in the case of a medical emergency. The employee must make themselves available for any meetings that may be arranged as part of the investigation and disciplinary process. The employee may be able to visit the Trust to attend pre-arranged meetings/appointments with management s agreement. 7.2 Redeployment/Adjustment to duties Where suspension is not necessary but it is considered inappropriate for the employee to remain in their current position and/or performing their current duties the employee may be temporarily redeployed. Redeployment could involve all or any of the following: Moving location Restricted or alternative duties Increased supervision or supervised access to patients Restricted contact with patients or colleagues Where redeployment or an adjustment to current duties will result in a detriment to pay then payment will be made in line with that stated above i.e. the guaranteed remuneration that the employee would have received had they not been redeployed or duties adjusted, their pay will be calculated based on a reference period of the previous 12 weeks. For the avoidance of doubt overtime, out of hours enhancements and bank shift payments are not guaranteed earnings, and are therefore not included in the definition of pay and will not be paid during these periods. Where an employee is redeployed on a temporary basis travel expenses will be reimbursed in accordance with the Trust Expenses Policy. Where an employee undertakes additional assignments for NHS Professionals at the Trust, the Trust reserves the right to notify NHS Professionals of their suspension or restrictions on duties and of the fact that the employee must not be requested to undertake any shifts via NHS Professionals during this period. 8. SAFEGUARDING Where the alleged misconduct relates to an allegation of abuse or neglect of a service user, or raises concern about the employee s suitability to work with children or vulnerable adults, a referral must be made in accordance with the appropriate safeguarding procedure. 8.1 Allegations relating to Children Statutory Guidance requires the Trust to have clear policies in line with those from the Local Safeguarding Children Board (LSCB) for dealing with allegations against people who work with children. An allegation may relate to a person who works with children who has: behaved in a way that has harmed a child, or may have harmed a child; possibly committed a criminal offence against or related to a child; or Page 6 of 13
Disciplinary Policy behaved towards a child or children in a way that indicates they may pose a risk of harm to children. Each LSCB has a specific procedure and the LSBC websites hold this information. Staff dealing with of a concern of this nature must check their LSCB Procedure. All allegations relating to people who work with children must be reported to the Trust s Named Senior Officer*, who is the Director of Nursing. All such allegations must also be discussed with the Local Authority Designated Officer (LADO) within one working day of the allegation coming to light. The LADO will advise as to how the investigation process will proceed. Advice and guidance can be obtained from the Named Nurses for Safeguarding Children or Safeguarding Consultant Practitioner. 8.2 Allegations relating to Vulnerable Adults Reference should be made to the local Safeguarding Adult Board procedure. In addition all incidents must be notified to the Trust s Safeguarding Consultant Practitioner. In all circumstances the safeguarding investigation will make recommendations to the Trust on how to proceed. *Named Senior Officer is a role required by statutory safeguarding children guidance. This is to provide accountability to local safeguarding children boards. 9. INVESTIGATION The investigation procedure will normally be used when an employee is suspected of committing an act of serious misconduct or acts in serious breach of any of Trust policies, procedures or rules. The investigation should take place within a reasonable time frame; the timetable will be determined by the investigating manager with advice from Human Resources and communicated to the employee. Where cases involve medical staff the Procedure for Maintaining High Professional Standards in the NHS should be referred to initially. Where the matter is routine or straightforward, there will be no need to conduct a separate investigation, some examples of such matters are outlined below: Repeated occasions of poor timekeeping or unauthorised absence where the line manager has a clear record of the dates/times of these occasions and notes/evidence of previous counselling meetings where clear standards have been set; or Repeated failure to engage with the Managing Attendance Policy, including persistent failure to attend for Occupational Health Appointments and/or failure to attend arranged meeting with a line manager without justifiable reason; In such circumstances the Trust reserves the right to dispense with a full investigatory interview and to proceed directly to a formal disciplinary hearing. The hearing will be conducted by the next level of management who has not previously been involved in the issues. 10. DISCIPLINARY HEARING Where it is determined that there is a potential case to answer, the case should proceed to a formal disciplinary hearing. The employee will be given reasonable notice of the hearing and will be provided with copies of the investigation report and documentary evidence that will be Page 7 of 13
considered at the hearing. The employee will also have the opportunity to submit a written statement of case and documentary evidence to the hearing, which must be received by the panel chair prior to the date of the formal disciplinary hearing (see Appendix 1). The employee should make every effort to attend the disciplinary hearing, however where an employee is persistently unable or unwilling to attend a disciplinary hearing without good cause and/or has not notified the panel chair prior to the hearing of their non attendance, then the hearing will go ahead in their absence and a decision will be made based on the evidence available. 11. DISCIPLINARY SANCTIONS 11.1 First Written Warning In the case of minor offences, the employee may be given a first written warning, setting out the nature of the offence and the likely consequences of any further offences. The employee should be told that their conduct is not acceptable and more serious disciplinary action will be taken in the event of continued breaches of conduct. The written warning will be confirmed in writing and will be kept on file; the warning will be valid for 12 months from the date of issue. 11.2 Final Written Warning In the case of further offences of a similar category or a first instance of more serious misconduct, the employee may be given a final written warning. The employee should be clearly warned that a similar incident or failure to comply would result in dismissal. The written warning will be confirmed in writing and will be kept on file; the warning will be valid for 2 years from the date of issue. 11.3 Redeployment A decision may be made to transfer the employee to alternative work or to a different location of work at this stage; demotion to a lower grade could also be imposed as action short of dismissal. 11.4 Dismissal Where a further act of misconduct of a similar nature is committed within the specified period of a final warning, the member of staff will be liable to dismissal, which will normally be with the appropriate period of notice in relation to the employee s contract and length of service. The Trust reserves the right in any case to make a payment in lieu of notice. 11.5 Summary Dismissal In cases of gross misconduct the employee may be summarily dismissed without notice or payment in lieu of notice. Any decision to dismiss will only be taken as the outcome of a full disciplinary hearing in accordance with this procedure. 11.6 No case to answer In the event the panel find there is no case to answer then any documentation, including outcome letter, relating to the incident will be removed from the personal file and destroyed. 12. DISCIPLINARY SANCTION MEETING In cases where an employee accepts full responsibility for their actions a disciplinary sanction meeting can take place where the appropriate disciplinary sanction can be offered to them without the requirement for a full disciplinary hearing. Page 8 of 13
A disciplinary sanction meeting is a formal meeting that would follow the principles outlined in the ACAS Guide, including the right to representation and the right of appeal, but does not require the attendance of an Investigating Officer to present the case, and in which a disciplinary sanction (up to, and including, a final written warning) may given to an employee. A disciplinary sanction meeting will only be appropriate where the employee has taken full responsibility for their actions and accepted the allegations against them. A disciplinary sanction meeting is not suitable in cases of gross misconduct or where an employee is already subject to a final written warning or the allegations are denied. In circumstances where the investigation is extremely complex, the case involves a medical member of staff, the employee disputes the allegations and/or specifically requests a full hearing, or the outcome may be dismissal then a full a disciplinary sanction meeting will not be appropriate and a full disciplinary hearing must be convened. 13. APPEALS An employee may appeal against a decision to dismiss or issue of a disciplinary sanction under this procedure. The appeal should be made in writing to the next level of management within 10 working days of receipt of written confirmation of the decision. Appeal hearings are convened to review the decision and the outcome of the original disciplinary hearing. An employee must set out clearly the grounds upon which the previous decision is being contested and the outcome they are seeking, as this will form the basis of the appeal hearing. Grounds of appeal: whether they are appealing against the finding that they have committed the alleged act or acts of misconduct or against the level of disciplinary sanction imposed they feel that Trust s procedures were not correctly and fairly implemented and indicating the outcome they are seeking If the appeal is unclear, they may be asked to clarify their grounds before the appeal hearing takes place. The appeal panel will consider the grounds that the employee has put forward and assess whether or not the conclusion reached in the previous disciplinary hearing was appropriate. The appeal is not a re-hearing of the original disciplinary hearing, but a consideration of the specific areas with which the employee is dissatisfied in relation to the original disciplinary hearing. The panel chair may, therefore, confine discussion to those specific areas rather than reconsider the whole matter afresh. In considering appeals against disciplinary action, the panel will be required to satisfy itself on the following points: Whether the misconduct was adequately investigated and substantiated Whether Trust s procedures were correctly and fairly implemented Whether the disciplinary action taken was reasonable, in all of the circumstances The disciplinary sanction and decision of the original disciplinary hearing may be upheld, lowered or removed as a result of any appeal lodged. In the event of an appeal hearing decision that an employee should be reinstated, the employee will receive payment in respect of the period of appeal from the previous date of Page 9 of 13
termination to the date of re-employment on the basis of the pay he/she would have received had he/she been continued to work during that period. The appeal hearing will be heard by the next level of management and will be supported by a HR representative. In cases of professional misconduct the panel chair may be accompanied by a professional lead. There will be no further right of appeal following this stage of the procedure (see Appendix 1). 14. EMPLOYEE REPRESENTATION An employee has the right to be represented, if they wish, at any formal stage of the proceedings by either recognised trade union representative or a Trust employed work colleague. It is strongly advised by the Trust and Staff Side that should this procedure be invoked that the employee seeks the support of their trade union representative where applicable. It is the employee s responsibility to liaise with their representative to arrange support. Employees who are suspended are able to meet with their representative, where meetings take place on Trust premises management must be advised. 15. DISCIPLINARY STANDARDS No set of disciplinary standards can cover all circumstances that may arise during the course of employment; therefore, the following list should not be regarded as exhaustive or complete. It has been drawn up to enable employees to know and understand the types of conduct that will warrant disciplinary action and describe the Trust s approach to issues of staff misconduct: 15.1 Examples of Misconduct Failure to obey reasonable instructions Acts of insubordination Persistent failure to wear ID badge(s) or adhere to dress codes Failure to administer drugs in accordance with NMC guidelines Persistent bad timekeeping Unauthorised absence Unauthorised or inappropriate use of NHS property, including IT equipment. or patient property Smoking in non designated smoking areas Using offensive language (see Harassment and Bullying Policy) Other actions considered a breach of good conduct and/or likely to bring the Trust into disrepute Failure to provide an efficient, safe and high quality service with concern and respect for the feelings and well being of other employees, patients and visitors Failure to observe the Trust internal policies Persistent failure to attend for meetings when reasonably requested to do so by their line manager In serious or persistent cases of the above, the misconduct may be regarded as gross misconduct and treated as such 15.2 Examples of Gross Misconduct Dishonesty Failure to Disclose an Interest Page 10 of 13
Assault (Verbal or Physical) Harassment and/or Bullying including cyber bullying Harassment and/or Bullying of an employee who has made a protected disclosure Gross Carelessness Malicious Damage Being Unfit for Duty Breach of Contract Unauthorised Disclosure of Information Intentionally Making False Statements Inappropriate Use of the Internet or Trust Mobile Media Loss of Statutory Registration Breach of Professional Standards Criminal Offences Outside Employment Fraud Breach of Equality, Diversity or Human Rights Policy 16. REFERRAL TO THE DISCLOSURE AND BARRING SERVICE In cases where the Trust dismisses or removes a member of staff/volunteer from working with children and/or vulnerable adults (in what is legally defined as a regulated activity) because they have caused harm to a child or vulnerable adult, there is a legal duty to inform the Disclosure and Barring Service (DBS). This also applies where the Trust would have taken this action had that individual not resigned, retired, been made redundant or been transferred to a position which is not a regulated activity. The referral should be made to the DBS when the investigation has gathered sufficient evidence to support the belief that relevant conduct has occurred, and their reasons for withdrawing permission for the employee to engage in a regulated activity. The DBS referral should be made by the Service Manager, or their nominee following good practice, will have consulted with their Local Authority Designated Officer (LADO) or Chair of the Adult Protection Investigation meeting. If there is any uncertainty as to whether the person meets the referral criteria, they should contact the Safeguarding Consultant Practitioner or the Human Resources Department for advice. The Service Manager should provide the Divisional Director with a copy of the referral form and all supporting documentation who will confirm that the information is appropriate before the referral is made. The Divisional Director should be notified when the referral has been made. For guidance about definitions of regulated activity, and how to make a referral contact the Human Resources Department or go to the DBS website https://www.gov.uk/government/publications/dbs-referrals-form-and-guidance On completion, a copy of all referrals, documents and subsequent correspondence should be provided to the Human Resources Department. 17. REFERRAL TO PROFESSIONAL BODIES AND OUTSIDE AGENCIES The Trust will make a referral to the relevant professional body where the employee is seen to not be upholding their professional values, brings their profession into disrepute or breaches their professional codes. Page 11 of 13
Where there is an allegation of fraudulent activity the Trust will refer the matter to the NHS Counter Fraud Services. In cases where the allegation involves criminal misconduct at work then the matter will be referred to the police. 18. TRAINING It would be expected that any manager undertaking an investigation, being part of a disciplinary process or being part of an appeal process would receive training and/or at least be supported by a Human Resources representative for guidance on the process. Any manager who is undertaking any formal stage of the procedure would be expected to contact the HR Department in the first instance for advice and support on the implementation of the policy. All managers are expected to disseminate information in relation to this policy to staff. 19. MONITORING COMPLIANCE This policy will be reviewed every three years or before if there are legislation changes. The monitoring of this policy includes an annual audit that comprises of the following table. Where non-compliance is identified an action plan will be drawn up and monitored at the HRODE Committee. Where remedial action can be taken immediately, the action must be recorded appropriately. Aspect of compliance or effectiveness being monitored Monitoring method Individual/ department responsible for the monitoring Frequency of the monitoring activity Group/committee/fo rum which will receive the findings/monitoring report Committee/individual responsible for ensuring that the actions are completed Workforce Report to monitor cases by protected characteristic Audit Human Resources Department Annual HRODE Sub Committee HRODE Committee Sub Number of Employment Tribunals Audit Human Resources Department Annual HRODE Sub Committee HRODE Committee Sub 20. REFERENCES ACAS Guide to Disciplinary and Grievances at Work Page 12 of 13
Disciplinary Hearing Disciplinary Policy Appendix 1 Where it is determined that there is a potential case to answer, the case should proceed to a formal disciplinary hearing. The employee will be given reasonable notice of the hearing. Prior to the hearing the employee and their representative (where applicable) will be provided with copies of the investigation report and documentary evidence that will be considered at the hearing. The employee will also have the opportunity to submit a written statement of case and documentary evidence to the hearing, which must be received by the panel chair prior to the date of the formal disciplinary hearing. Witnesses may be called by either staff side or management side as part of the presentation of their case. The panel chair must be notified of any witnesses being called prior to the hearing. Witnesses may be accompanied at the hearing by a trade union representative or Trust employed work colleague. It will be the responsibility of each party concerned to organise witness attendance. During the hearing the panel chair may, at their discretion or at the request of either party, adjourn the hearing at any point. The chair shall rule on the admissibility of questions and evidence and on any matter connected with the proceedings. The hearing will be adjourned and a decision made, where possible the employee will be recalled and the decision communicated to them. Where this is not possible it will be explained to the employee. In any event the final decision will be communicated to the employee in writing. Disciplinary Appeal Hearing The employee will be given reasonable notice of the appeal hearing. The written grounds of appeal and any supporting evidence must also be submitted by the employee prior to the hearing. The disciplining manager will also have the opportunity to submit a written statement of case and documentary evidence to the panel. Copies of papers will be circulated to both staff side and management side prior to the appeal hearing. Witnesses may be called by either staff side or management side as part of the presentation of their case. The panel chair must be notified of any witnesses being called prior to the hearing. Witnesses may be accompanied at the hearing by a trade union representative or Trust employed work colleague. It will be the responsibility of each party concerned to organise witness attendance. During the appeal hearing the panel chair may, at their discretion or at the request of either party, adjourn the hearing at any point. The chair shall rule on the admissibility of questions and evidence and on any matter connected with the proceedings. Page 13 of 13