Disciplinary Policy Page 1
Disciplinary Policy Doc. Ref. No. HR007 Title of Document Disciplinary Policy Author s Name Rob Osment Author s job title HR Business Partner Dept / Service Human Resources Doc. Status Version 2 Based on Bristol PCT Disciplinary Policy Signed off by Quality and Governance Group Publication Date 17 May 2016 Next review date 17 May 2019 Distribution All staff Check list for Governing Body/approving committee Has an Equality Impact Assessment been Yes completed? Has legal advice been sought? No Have training issues been addressed? Yes Are there financial issues and have they No been addressed How will implementation be monitored Through the SCWCSU HR Team How will the policy be shared with: Via the Bristol CCG internet site and Staff dedicated communication to Bristol CCG Patients employees. Public Are there linked policies and procedures Appeals Policy, Grievance Policy, Guidance on Investigating Complaints and Allegations related to Employment, Bullying and Harassment Policy, Social Media Policy Page 2
Contents 1 Policy Statement...4 2 What is the Purpose of a Disciplinary Policy?...4 3 Who does this Policy and Procedure Apply to?...4 4 Who does this Policy and procedure NOT apply to?...4 5 What sort of Problems does this Policy and Procedure cover?...4 6 What are the Key Principles?...4 7 Should the Member of Staff by Suspended from Duty?...5 8 How are Investigations Conducted?...5 9 Formal Hearings Under the Disciplinary Procedure...5 10 How to Appeal Against a Disciplinary Sanction or Dismissal...11 11 How are Records Kept?...11 12 What Happens to Spent Warning?...11 13 How will Disciplinary Cases be Monitored?...11 14 Policy Review Statement...11 Appendix A: Definitions of Terms...13 Appendix B: The Right to be Accompanied...15 Appendix C: Disciplinary Procedure Flow Chart...16 Appendix D: Example Letter for Notification of Disciplinary Hearing...16 Appendix E: Example of Disciplinary Outcome Letter...18 Yours sincerely Appendix F: Issue to be Considered When Deciding on Disciplinary Outcome...18 Appendix G: Use of Internet at work and Data Protection, Personal use of the internet and Social Media...20 Page 3
1 Policy Statement Bristol Clinical Commissioning Group recognises that from time to time members of staff may fall short of the standards required by the organisation or may fail to behave in an appropriate manner, either within or outside of the workplace. This policy and procedure has been developed to provide a fair, objective, effective and confidential way of dealing with such matters relating to conduct which may, following an investigation lead to a disciplinary hearing and possible disciplinary action. This policy will be applied firmly but sensitively, with a true sense of natural justice, equality and consistency and both managers and members of staff will be made aware of their responsibilities. We recognise that individuals may have different norms, values and expectations. Those involved in using this policy must therefore, demonstrate knowledge and skills in dealing with any such issues, which may present themselves during the process. 2 What is the Purpose of a Disciplinary Policy? To bring about improvements in the conduct of members of staff and, where appropriate, in systems of work. 3 Who does this Policy and Procedure Apply to? All members of staff of the organisation in cases of misconduct. 4 Who does this Policy and procedure NOT apply to? Those employed by other organisations and honorary staff. The employing organisation must deal with any disciplinary matters involving such staff. 5 What sort of Problems does this Policy and Procedure cover? Initial minor misconduct Minor misconduct Serious misconduct Gross misconduct The definitions are provided in Appendix 1 6 What are the Key Principles? a) Staff have a statutory right to be accompanied and supported by a fellow worker or trade union representative (see Appendix 2 for more information). b) The Investigating Officer will receive guidance and support throughout all stages of the procedure from a Human Resources professional. c) No formal disciplinary hearing will be set up until the case has been fully investigated by an Investigating Officer. d) Malicious allegations may be deemed as a disciplinary offence. Page 4
e) The organisation will not normally take disciplinary action against a member of staff reporting clinical incidents involving patients and carers unless such allegations are later proved to be false and have been raised with Malicious intent. f) Except in a case of gross misconduct (defined in Appendix 1), an employee will not be dismissed for a first breach of conduct. g) Dismissals can only be sanctioned by an agreed Dismissing Officer, as defined in point 9.1 of the Disciplinary Procedure. h) Where the facts are in dispute, no disciplinary penalty will be imposed until the case has been carefully investigated and it is concluded on the balance of probability that the employee committed the act in question. i) Disciplinary decisions will be recorded and monitored by the Human Resources Department to ensure that the Procedure is operated fairly and consistently to all staff, regardless of their ethnic origin, gender, disability, age, religion or sexual orientation. Where evidence of inequality or adverse effect is found, the organisation will take remedial action accordingly. j) The process will be dealt with as swiftly as is reasonably possible. Confidentiality will be observed at all stages of the procedure by all parties including witnesses. k) Members of staff have the right of appeal against any formal sanction made at a formal hearing under the Disciplinary Procedure using the Appeals Policy. l) If there are concerns that the process has not been followed correctly or the policy breached the member of staff is entitled to raise a grievance. However, should the grievance be against another issue this will not be investigated whilst the Disciplinary Investigation/Hearing is still ongoing. 7 Should the Member of Staff by Suspended from Duty? On occasions it may be necessary to consider suspending a member of staff (on full pay) from duty. This is a neutral act which does not constitute disciplinary action and which does not imply guilt. All other options such as moving a member of staff to another role on a temporary basis should be considered before taking the action of suspension. 8 How are Investigations Conducted? Investigations will be conducted in accordance with the Guidance on Investigating Complaints and Allegations related to Employment. Managers must ensure that they refer to the Guidance on Investigating Complaints and Allegations related to Employment before conducting any investigation into allegations. 9 Formal Hearings Under the Disciplinary Procedure 9.1 Who may Sanction Disciplinary Action? Disciplinary action shall be the responsibility of authorised levels of management to whom disciplinary powers have been delegated as follows: Possible level of Authorised level of manager: Page 5
warning: Informal Meeting First Written Warning Final Written Warning Action short of dismissal Dismissal Manager at Band 7 or above Head of Department or equivalent Associate Director or equivalent Director or Associate Director with delegated authority Director or Associate Director with delegate authority Should a formal hearing be convened the chair of the panel must satisfy the appropriate level of management to issue the warning. Cases of disciplinary action involving the Chief Officer or members of the Clinical Commissioning Group s Governing Body will be referred to NHS England. 9.2 Informal Conduct Meeting This is not part of the formal disciplinary procedure and this informal stage would be relevant to minor misconduct or carelessness. The objective of such discussion is to remedy and document the matters of concern. Formal disciplinary action should follow only where such problems persist or are so serious as to warrant formal action. An Informal Conduct Meeting is designed to improve behaviour and prevent further episodes of misconduct without issuing an employee with a formal warning or causing them stress by being subject to a formal hearing. It is not necessary for a member of the HR team or an employee representative to be present at this meeting which should be held between the employee and their line manager or the manager who commissioned the investigation. Following the meeting, the notes of the informal meeting and improvement that needs to be made, will be placed on the employee s file for 6 months. There is no right of appeal against this informal action taken. If however you feel that the policy has not been followed and applied appropriately you do have the right to raise a grievance in line with the CCG Grievance Policy. 9.3 Formal Disciplinary Hearings Who should be on the panel for a formal disciplinary hearing? A Chair of the Panel who should normally be more senior than the Investigating Officer A Human Resources professional. One other senior manager of an appropriate level may also attend. When necessary an appropriate professional advisor should be included. Page 6
The composition of the Panel is important in terms of gender, race, disability, age, religion and sexual orientation and forethought should be given to this mix when deciding who should sit on the Panel. This shall be reviewed and monitored on a case by case basis. Who will present the Management Case? The Investigating Officer will present the Management Case to the panel. Witnesses may be called in support of the Management Case. The Investigating Officer must notify the Panel and the subject of the disciplinary investigation if they wish to call any witnesses in support of their case. Who will present the Employees Case? The employee who is the subject of the hearing. They may also be accompanied by a representative of a recognised trade union or a fellow worker who may present on their behalf. Witnesses may be called in support of the employee s case. The employee must notify the Panel in advance if they wish to call any witnesses in support of their case. It is the employee s responsibility to arrange the attendance of their witnesses at the hearing. How will the hearing be arranged? Once the decision has been made to convene a formal hearing under the Disciplinary Procedure this must be confirmed in writing. The letter to the member of staff should include the following information (Example in appendix 4) The date, time and venue of the meeting. [At least 10 days notice will be given]. The fact that this is a formal hearing under the Disciplinary Procedure. The nature of the allegation. Who will be on the Panel to hear the evidence Who will be presenting the Management Case (including any witnesses attending) The fact that the outcome of the formal hearing may be a disciplinary warning and may [if appropriate] include dismissal. That they may be accompanied by a representative from a recognised Trade Union or by a fellow worker. A copy of the Management Case [Report of the Outcome of the Investigation] will be enclosed with the letter. This will include copies of statements relating to the case. Ask if there any special requirements such as the need for language facilities (interpreter), etc. The date that their response to the allegations (their case) must be submitted to the panel by (5 working days before the hearing). Page 7
Should the employee wish to submit a response to the allegations (their case) for the panel to consider this should be submitted at least 5 working days prior to the hearing. If an employee s companion cannot attend on the proposed date, another date may be suggested. If the employee refuses to attend the hearing, or cannot provide a substantial reason why they are unable to attend, it must be made clear to them that the hearing will still continue in their absence and a record kept of the reasons for this non-attendance. The member of staff should seek guidance on how to compile a response to the allegation (their case). This may be sought from the Trade Union Representative if they are a member or from a fellow worker. Briefly, the member of staff should include the following information in their case: A specific response to the allegation. This should be concise and refer to any supporting documents or statements in the appendices. Pages should be numbered and a contents page added at the front of the pack. No new information should be provided at this stage. Arranging information packs for the hearing: All members of the Panel and the Management Side will receive identical packs to that already sent to the employee and their representative containing the Management Side Case and the employee s response two days before the agreed date of the Hearing. The employee should inform the Panel Chair of the names of any witnesses who they will be calling to the hearing. Likewise, the Investigating Officer should inform the Panel Chair of the names of any witnesses who they will be calling to the hearing. No new information can be submitted at this stage or during the hearing. What happens at a Formal Hearing under the Disciplinary Procedure? (See also flow chart in Appendix 3) a) The investigating manager will be asked to summarise the key points of the written statement of case and call witnesses in the presence of the member of staff and his/her representative. b) The members of the panel shall have the opportunity to ask questions of the manager and his/her witnesses. c) The member of staff or their representative shall have the opportunity to ask questions of the manager and his/her witnesses. d) The manager shall have the opportunity to re-examine his or her witnesses on any matter referred to in their examination by members of the Panel, the member of staff or the member of staffs representative. e) The member of staff or their representative [i.e. Trade Union representative or fellow worker] shall put his or her case and call witnesses in the presence of the manager. f) The members of the panel shall have the opportunity to ask questions of the member of staff and his/her representative and witnesses. Page 8
g) The investigating manager shall have the opportunity to ask questions of the member of staff and his/her representative and witnesses. h) The member of staff or their representative shall have the opportunity to re-examine his or her witnesses on any matter referred to in their examination by members of the Panel or the organisation's representative. They will also have the opportunity to ask the investigating manager or any witnesses called by the investigating manager any questions. i) The manager and the member of staff or the member of staffs representative shall have the opportunity to sum up their cases if they so wish. The member of staff or their representative shall have the right to speak last. In their summing-up, neither party may introduce any new information. j) The Panel may at its discretion adjourn the hearing at any point in order that either party may produce further evidence or for any other substantial reason. At this point the manager, the member of staff and the member of staff s representative shall withdraw. k) The Panel advised by the Human Resources Adviser, shall deliberate in private only recalling both parties to clear points of uncertainty on the evidence already given. If recall is necessary, both parties shall return, even if only one of them is concerned with the point that has given rise to doubt. l) Witnesses will normally be asked to leave the hearing at the conclusion of their evidence and the Panel Chair will indicate whether they should remain available for the duration of the hearing in case it is necessary to recall them. Decisions of the Panel The decision of the Panel, and the reasons for reaching that decision, will normally be announced at the end of the Hearing. If, due to reasons such as the amount of information presented or time constraints, etc., the panel may decide to adjourn the meeting to consider their decision and inform the employee of the outcome in writing. Appendix 6 provides suggested issues that the panel may wish to consider when reaching their decision. Decisions and the reasons for those decisions will be confirmed in writing. A template letter can be found in Appendix 5. The written confirmation, which will be from the chair of the panel, should include: Date, time and venue of the hearing. Who was present The nature of the allegations. The decision of the Panel. The reasons for the decision. Reference to previous warnings if relevant. The implications of the decision. Page 9
The duration of the sanction, if appropriate. The right of appeal under the organisation s Appeals Procedure (and enclose a copy of the Appeals Policy). Possible Outcome The outcome will depend on the details of the hearing and may be as follows: a) No case to answer The panel may decide there is no case to answer if they conclude that no misconduct has taken place. No further action will be taken with the employee and the matter shall be treated as closed. b) No formal action This may include for example the requirement for the individual to attend training or informal coaching sessions with their manager or other identified individual. Following the meeting, the notes of the informal meeting and improvement that needs to be made, will be placed on the employee s file for 6 months. There is no right of appeal against this informal action. If however you feel that the policy has not been followed and applied appropriately you do have the right to raise a grievance in line with the CCG Grievance Policy. c) First written warning Appropriate in cases involving offences of minor misconduct, or where attempts at coaching have failed to secure improvement. To remain effective for 12 months, see also point 12. d) Final written warning Appropriate where there is a current formal warning on file, or where serious misconduct is proven. To usually remain effective for 24 months, see also point 12. In some instances of serious misconduct or repeated offences the panel may at their discretion issue a final warning to remain active in excess of 24 months. e) Dismissal Appropriate in cases of gross misconduct, or may be where there is a current final warning on file. A member of staff may be summarily Page 10
dismissed [without notice or a payment in lieu of notice] only in the event of gross misconduct f) Action short of dismissal In some cases of gross misconduct where dismissal was a clear possibility, but significant mitigating circumstances were presented to and accepted by the panel the decision of demotion and associated loss of pay to a more suitable job, if available, in conjunction with a final written warning can be taken. The level of demotion should be proportionate to the severity of the offence. 10 How to Appeal Against a Disciplinary Sanction or Dismissal Members of staff have the right of appeal against a formal sanction made at a formal hearing under the Disciplinary Procedure. A copy of the Appeals Policy will be enclosed with the letter confirming the outcome of the formal hearing. Appeals against informal outcomes are not permitted. If however you feel that the policy has not been followed and applied appropriately you do have the right to raise a grievance in line with the CCG Grievance Policy. 11 How are Records Kept? In instances of a formal sanction being taken all current correspondence relating to the disciplinary action, including any letters confirming the outcome will be kept on the individual s personal file for the duration that the sanction is effective. 12 What Happens to Spent Warning? Once the effective period of the warning is spent, all correspondence relating to the disciplinary action, including any letters confirming the outcome must be removed from the member of staff s personal file and destroyed. Where it is in the public interest, information relating to spent warnings may be kept in accordance with the provisions of the organisation s Raising Concerns Policy. This information will normally be agreed by the individual, their representative, manager and Human Resources Department 13 How will Disciplinary Cases be Monitored? All outcomes will be monitored to ensure that the policy and procedure is applied fairly and equitably and to ensure that no group is over represented through this process. The Human Resources Department will collate and provide to Bristol Clinical Commissioning Group, at least annually, monitoring information relating to disciplinary cases. In the first instance this information will be provided to the Directors. This will include analysis of: the types of cases brought; the outcomes; and a breakdown of those members of staff who have cases brought against them by gender, ethnic origin, disability, age, religion, and sexual orientation where this does not breach confidentiality. 14 Policy Review Statement Page 11
This policy and procedure will be reviewed after 3 years or earlier on the request of either the Trade Union or management side of the recognised consultative forum. Further information and advice is available from your Human Resources Department. You may also seek the advice of your Trade Union Representative at any stage of the procedure. Rob Osment HR Business Partner Page 12
Appendix A: Definitions of Terms Initial Minor Misconduct An initial minor infringement of the organisation s rules, regulation, policies or procedures. For example: Persistent lateness. Abuse of privileges. Minor Misconduct An infringement of the organisation s rules, regulations, policies or procedure. Persistent infringement of organisation s rules, regulations, policies or procedures when informal action has already been taken or other informal mechanisms have previously been put in place. Serious Misconduct Any failure to meet the required standards of behaviour, conduct, performance or attendance which may be set out locally, in Professional Codes of Conduct or organisation s Policies and Procedures. For example: Failure to respond to previous written warnings. Prolonged or repeated acts of misconduct. Email/Internet misuse. Insubordination.(Definition: Insubordination is the act of a subordinate deliberately disobeying a manager without a justifiable reason) Gross Misconduct Behaviour of such a nature that the organisation is justified in no longer tolerating the continued presence at the place of work. These acts seriously breach contractual terms. Examples include: Racial, sexual and other forms of harassment. Theft, fraud (including attempts to commit theft or fraud) or other criminal activities. Deception. Serious breaches of confidentiality. Gross professional negligence or misconduct or misrepresentation. Serious misuse of or malicious damage to organisation property or equipment. Physical violence or bullying. Deliberately accessing internet sites containing pornographic, offensive or obscene material. Serious insubordination. Bringing the organisation into disrepute. Serious breach of Health and Safety rules. Page 13
Serious breach of confidence. Failure to respond to previous final warnings. This is not an exhaustive list and there may be other acts of misconduct of similar gravity that would constitute gross misconduct. Page 14
Appendix B: The Right to be Accompanied Taken from the ACAS Code of Practice on Disciplinary and Grievance Procedures Employees have a statutory right to be accompanied by a fellow worker or trade union official when they are required or invited by their employer to attend disciplinary interviews/hearings. Informal discussions or counselling/coaching sessions do not attract the right to be accompanied unless they could result in formal warnings or other actions. Employees should inform their employer if they wish to be accompanied and tell the employer who their companion is. The Companion can be a fellow worker or a trade union representative. Nobody has to accept an invitation to act as a Companion, and should not be pressurised to do so. When choosing a Companion, the employee should be aware that it would not be reasonable to insist on being accompanied by a fellow worker whose presence would prejudice the meeting or who might have a conflict of interest. The Companion can have a say at the interview/hearing but cannot answer questions for the employee. Employees who are acting as Companions can take paid time off to prepare for and attend a meeting/hearing. Page 15
Appendix C: Disciplinary Procedure Flow Chart Summary of What Happens At a Formal Hearing under the Disciplinary Procedure 1. Investigating Manager summarises key points of written Statement of Case and calls witnesses in presence of employee and/or representative. 5. Employee or employee s representative puts his or her case and calls witnesses in presence of manager. 9. Investigating Manager sums up & makes closing statement. 2. Disciplinary Panel questions manager and witnesses. 6. Disciplinary Panel question the employee, their representative or witnesses. 3. Employee or representative asks questions of investigting manager and witnesses. 7. InvestigatingManager has opportunity to ask questions of employee, employee s representative or employee s witnesses. 4. Investigating Manager re examines his or her witnesses on any matter referred to in their examination by members of the Disciplinary Panel, the employee or their representative. 8. Employee or employee s representative re examines witnesses. 10. Employee or representative sum up and make closing statement. 11. Adjournment while Panel reaches decision. 12. Decision & reasons. Page 16
Appendix D: Example Letter for Notification of Disciplinary Hearing Dear I am writing to inform you that the investigation into the allegation that (who/what/when/where be as specific as possible) is now complete. From the report it appears that there is a case for you to answer and you are therefore required to attend a disciplinary hearing. A copy of the investigation report is enclosed for your information. The hearing will be held as follows: Date: Time: Venue: The purpose of the hearing is to establish all the facts surrounding the allegation. You will be given every opportunity to state your case, explain any mitigating circumstances or to contest the evidence by calling or questioning any witnesses. The hearing will be held in the presence of (state name and job title) and me. The management case will be presented by and will be called as a witness. Please let me know if you intend calling any witnesses yourself. Should you wish to submit a response to this allegation to be used at the hearing you are able to do so. This must be submitted to myself by xxx which is 5 working days prior to the panel hearing. The Disciplinary hearing has been established in accordance with the organisation s Disciplinary Policy and Procedure (a copy of which is enclosed) and therefore constitutes a formal hearing, the outcome of which may be a disciplinary sanction and may (if appropriate) include dismissal. Details of the disciplinary sanction can be found in section 12 of the Disciplinary Policy. I would also like to take this opportunity to remind you that you are welcome to be accompanied by a trade union representative or fellow worker at this meeting if you wish. If you, your representative or any witnesses you intend calling have any special requirements to enable you to attend this hearing please contact me and I shall make arrangements for this. Yours sincerely Page 17
Appendix E: Example of Disciplinary Outcome Letter Dear I am writing to confirm the outcome of the disciplinary hearing held on. The meeting was held to consider the allegation that (who/what/when/where be as specific as possible). The panel comprised of (state name and job title) and me. presented the Management Case. You were present and accompanied by. The following individuals were called as witnesses: - - The following was established during the course of the hearing: - Outline key points of the hearing Having listened very carefully to all the evidence presented the panel concluded that (provide full details on outcome and action to be taken). You have the right of appeal against this decision if you wish. Any such appeal should be made in writing within 5 days of the date of this letter in accordance with the organisation s Appeals Policy (attached). Yours sincerely Page 18
Appendix F: Issue to be Considered When Deciding on Disciplinary Outcome The panel may wish to consider the issues in the following list when deciding upon a suitable disciplinary outcome. Please note this list is not exhaustive. What evidence is there to support the allegation? Given the evidence available, how likely is it that the allegation / incident as described actually occurred? Are there any other issues that have come to light that should be taken into consideration (e.g. existing live warning on file)? What level of misconduct is believed to have occurred (minor, serious or gross)? If no disciplinary action is taken, how likely is it that there would be a repetition? Is this a first offence? Have similar circumstances occurred within the organisation previously and if so what action was taken then? Were there any mitigating circumstances? Page 19
Appendix G: Use of Internet at work and Data Protection, Personal use of the internet and Social Media Staff and managers should familiarise themselves with the guidance below; any breach of this could be regarded as a Disciplinary issue. Use of Internet at work and Data Protection The Bristol Clinical Commissioning Group Information Governance Management System Policy sets out clear guidance for internet, email and phone usage, and staff obligations regarding data protection. Any contravention of this policy could be regarded as a Disciplinary issue. Personal use of the internet whilst at work Staff should ensure that whilst at work, personal use of email and internet, particularly social websites is not excessive and does not affect their work. Access is currently allowed but usage should be restricted to break / lunch times. This applies whether you use your work computer or your Smartphone whilst at work. If unsure, speak to your line manager. Use of social media Social Media includes, but is not limited to, websites such as MySpace, LinkedIn, Facebook, Twitter, Flickr, Indaba, Live Journal and other blogging sites. It is acknowledged that some staff may be required as part of their role to represent Bristol Clinical Commissioning Group on these websites. Where this is agreed as an explicit element of their role, employees should work in line with Social Media Policy as to what information they may disclose and the range of opinions they may express. If this is unclear, staff should seek guidance from their manage and refer to the Social Media Policy. When using social media sites for personal use, Bristol Clinical Commissioning Group employees should be mindful of the following: Due to the nature of social media, any comments made could be viewed by others. If others using the site consider these comments to be inappropriate due to either causing reputational damage to the organisation, or consider these to be abusive, offensive or discriminatory, these comments could be investigated in line with the Bristol Clinical Commissioning Group Disciplinary Policy and/or Bristol Clinical Commissioning Group Bullying and Harassment Policy. Employees should never reference clients, customers, or partners via social networking, unless authorised by their line manager as part of their role to do so Page 20