Disciplinary Policy DOCUMENT CONTROL: Version: 6 Ratified by: Corporate Policy Panel Date ratified: 20 July 2017 Name of originator/author: Human Resources Department Name of responsible committee/individual: Director of Workforce and Organisational Development Date issued: 23 January 2018 Review date: July 2020 Target Audience All staff
Section CONTENTS Page No 1. Introduction 4 2. Purpose 4 3. Scope 4 4. Responsibilities, Accountabilities and Duties 4 4.1 Board of Directors 4 4.2 Managers 5 4.3 The Human Resources Department 5 4.4 Employees 5 4.5 Staff Side/Professional Organisation Representatives 5 5. Procedure/Implementation 6 5.1 Personal Responsibility Framework 6 5.1.1 Reasonable Adjustments 6 5.2 Initial fact finding 6 5.3 Cases involving Safeguarding issues 7 5.4 Cases involving Counter Fraud issues 8 5.5 Suspension from Work 8 5.6 Investigations 10 5.7 Raising a Grievance During Disciplinary Proceedings 12 5.8 Proposed action against a trade union/professional organisation representative 5.9 Formal Disciplinary Action 12 5.9.1 Re-scheduling of Disciplinary Hearings 13 5.9.2 Disciplinary Sanctions 14 5.9.2.1 Improvement Notice 14 5.9.2.2 First Written Warning 15 5.9.2.3 Final Written Warning 15 5.9.2.4 Dismissal 15 5.9.3 Disciplinary letters 16 5.9.4 Gross Misconduct 16 5.9.5 Criminal Action 17 5.10 Right of Appeal 18 5.11 Referral to the Disclosure & Barring Service 19 5.12 Referral to Professional Bodies 19 6. Training Implications 19 7. Monitoring arrangements 20 8. Equality impact assessment screening 20 8.1 Privacy and Dignity 20 12 Page 2 of 32
Section CONTENTS Page No 8.2 Mental Capacity Act 20 9. Links to any associated documents 21 10. References 21 11. Appendices 21 Appendix A - Schedule of Delegated Authority to Deal with Disciplinary Matters Appendix B Writing a Statement Guidance for Staff 24 Appendix C Guidance for Investigating Officers and Line Managers: Supporting Staff during Investigations and Disciplinary Procedures Appendix D Hearing Process 29 22 26 Page 3 of 32
1. INTRODUCTION This policy provides a process for the management of alleged misconduct. Separate procedures apply for the management of performance issues and absence as a result of sickness (full details of these are given at section 9). The policy also provides an appeal mechanism for employees to seek a review of decisions involving formal warnings or dismissal. This policy and procedure complies with all relevant legislation and the principles set out in the ACAS (Advisory, Conciliation and Arbitration Service) Code of Practice on Disciplinary and Grievance Procedures, 2015. 2. PURPOSE The purpose of this policy and procedure is to provide a non-discriminatory, fair and timely process for the management of disciplinary matters within the Trust. This policy and procedure should not be viewed primarily as a means of imposing sanctions; its key purpose is to encourage improvements in individual conduct. 3. SCOPE This policy applies to all Trust employees. The investigation of personal and professional conduct, capability & Ill health concerns involving medical and dental staff will be undertaken in accordance with the national framework set out in Maintaining High Professional Standards in the Modern NHS (2005). Where personal conduct issues are identified they will then be managed under this policy and procedure. If a doctor feels it is inappropriate for the Trust s Disciplinary Policy & Procedure to be applied in an individual case, they should access the Trust s Grievance Policy For advice on the applicability of this policy and procedure to staff who have transferred to the Trust in accordance with the Transfer of Undertakings (Protection of Employment) 2006 (as amended by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 (TUPE) after the approval date of this policy, please consult the Trust's Human Resources Department. Seconded staff are covered by the policies of their employing organisation. 4. RESPONSIBILITIES, ACCOUNTABILITIES AND DUTIES 4.1 Board of Directors The Board of Directors has overall responsibility for ensuring that this policy Page 4 of 32
is applied fairly, consistently and in a non-discriminatory manner. To this end, a sub-committee of the Board of Directors will monitor the application of this policy through scrutiny of the Trust's equality and diversity reporting system. The Board of Directors also has a duty to hear appeals against Dismissal. 4.2 Managers Managers are responsible for ensuring that all employees are aware of this Disciplinary Policy and Procedure. Each employee should be informed of the standards of conduct and work performance expected in their job. Managers will refer new employees to this document as part of their local induction, and encourage them to familiarise themselves with its contents. Managers have a duty to apply this policy fairly and consistently, and to act in accordance with the Schedule of Delegated Authority, which can be found at Appendix A. Managers have a duty to seek advice from the Human Resources Department if they are considering taking action against an employee under the formal stage of this procedure. 4.3 The Human Resources Department The Human Resources Department is responsible for providing legally sound advice and guidance to managers on the application of this policy and must be involved in all action taken under the formal stage of the disciplinary procedure. Human Resources staff who provide advice and guidance to managers on the application of this policy are responsible for ensuring that they maintain current knowledge of applicable employment law and best practice and have a duty to seek advice from a more senior member of the HR function if they are unsure. The Human Resources Department has a duty to monitor the application of the formal stage of the disciplinary procedure, in order to ensure that it is being applied in a timely and non-discriminatory manner and in accordance with the Equality Act 2010. 4.4 Employees Employees are responsible for maintaining appropriate standards of conduct, and acting within their level of competence, seeking advice from their manager if they are unsure. Employees have a duty to act in accordance with Trust policies and procedures, and to familiarise themselves with these documents. Employees are expected to attend disciplinary meetings and appeal hearings, unless there are extenuating circumstances which would prevent attendance. Page 5 of 32
4.5 Staff Side/Professional Organisation Representatives Trade Union/Professional Organisation representatives will: - ensure that they familiarize themselves with this policy and procedure. - advise members in accordance with the policy and procedure. - assist staff in preparing a written statement/attend investigatory meetings if required, encourage them to provide a clear explanation of the concern with supporting evidence wherever possible. 5. PROCEDURE/IMPLEMENTATION 5.1 Personal Responsibility Framework The Personal Responsibility Framework is a framework for managing conduct and behavioral issues outside of a disciplinary process. The Personal Responsibility Framework is not designed to replace this Policy and Procedure but may be used to deal with issues and concerns which are not classified as potential gross misconduct issues. Under the framework an employee, in conjunction with their manager, accepts personal responsibility for their actions and commits to an action plan to modify and change their behavior. This process is also used to improve quality and to learn from mistakes, as managers and employees to take an equal share of the responsibility for the things that happen around them. For further information please contact a member of the Human Resources Department. 5.1.1 Reasonable Adjustments In applying this procedure, managers and the Human Resources Department will ensure that reasonable adjustments are made for employees with disabilities or literacy difficulties, or for whom English is not a first language, as appropriate to individual circumstances to ensure that these employees are able to fully participate in disciplinary processes. Where an employee who is facing disciplinary action, or who has been asked to act as a witness, feels that such adjustments are necessary, they should initially discuss the issue with their line manager/investigating officer. 5.2 Initial fact finding This is not part of the formal disciplinary procedure. However, where this informal stage is used, a note will be made and retained on the employee's personal file to record the discussion and any action taken. This informal stage would be appropriate to minor misconduct or minor carelessness as these cases are usually best dealt with informally in some cases additional training, coaching and advice may be appropriate. Page 6 of 32
The objective of this informal stage is to remedy the matters of concern, and formal action should follow only where it becomes apparent during the discussion that the matter is more serious than was initially apparent, or where the issues discussed persist following the discussion. At this stage, it is not necessary to involve the employee s union* 1 representative or a Human Resources Advisor, as this is not a formal process. During discussions at the informal stage, employees will be made aware that, if the issues discussed persist or recur, formal disciplinary action could be taken. They will also be asked whether they require any support from the Trust in order to improve. Line Managers should be mindful of the employee s right to be supported at the meeting by a companion as detailed in Section 5.5. Should any employee be asked to provide a written statement they should be given sufficient time to do so. Employees also have the right to discuss and share the statement with their trade union/professional organisation representative before submission to the Trust. Guidance on providing a statement is contained in Appendix B. 5.3 Cases involving Safeguarding Where allegations regarding the safeguarding of children or vulnerable adults are made against an employee, the Deputy Director of Nursing must be contacted immediately, prior to any investigation being undertaken. The Deputy Director of Nursing will liaise with the investigating manager and Human Resources regarding the investigation process. Where allegations are made against an employee of abuse or other inappropriate behaviour towards a child the investigation needs to comply with Working Together to Safeguard Children 2015 and the Local Safeguarding Children Board Procedures for managing allegations against people who work with children and young people. The designated senior manager within the Trust and the Deputy Director of Nursing should be immediately informed and they will liaise with the Local Authority Designated Officer (LADO) in accordance with the agreed policy. Allegations involving safeguarding are often very complex. Sometimes it will be possible to conduct a disciplinary investigation alongside a safeguarding investigation, whilst in other cases, it may be necessary to complete the safeguarding investigation prior to commencing any disciplinary investigation. The relevant Care Group Director or Head of Department should be involved in discussions around the co-ordination of investigations, 1 Throughout this policy, the term union or trade union should be taken to include professional organisations. Page 7 of 32
and has overall responsibility for ensuring that they are completed as efficiently as possible. 5.4 Cases involving Counter Fraud Issues Where allegations of fraud or theft are made, the Security Officer and Local Counter Fraud Specialist (LCFS) must be contacted immediately, prior to any investigation being undertaken. The LCFS will liaise with the investigating manager and Human Resources regarding the investigation process. The contact details for LCFS are available on the Intranet. The LCFS may conduct an investigation in line with the Fraud, Bribery and Corruption Policy. Allegations involving fraud are often very complex. Sometimes it will be possible to conduct a disciplinary investigation alongside a fraud investigation, whilst in other cases, it may be necessary to complete the fraud investigation prior to commencing any disciplinary investigation. The relevant Care Group Director or Head of Department should be involved in discussions around the co-ordination of investigations, and has overall responsibility for ensuring that they are completed as efficiently as possible (although where the LCFS is involved in an investigation, and there is dispute around its co-ordination, the Executive Director of Finance must be consulted). 5.5 Suspension from Work In certain circumstances, employees may be suspended from work prior to and during a disciplinary investigation. Suspension is a neutral act and not a disciplinary sanction or an indication of guilt. Examples of circumstances where suspension may be appropriate include situations where: the misconduct being investigated is serious enough that, if substantiated, it may warrant summary dismissal on the grounds of gross misconduct. there is a risk that, if the employee remains at work, they may interfere with the disciplinary investigation. an investigation regarding suspected fraud or the safeguarding of children or vulnerable adults is being conducted. an employee's registration with their professional body has been suspended or is subject to conditions of practice (where an employee's registration has lapsed, reference should be made to the Policy for the Verification of Employees' Professional Registration). the employee is the subject of a police investigation into allegations which may impact on their employment. Suspension does not apply to Medical and Dental Staff, exclusions apply where appropriate. For the exclusion of Medical and Dental Staff the Maintaining High Professional Standards in the NHS framework should be applied. Page 8 of 32
The purpose of suspension is to allow an unhindered investigation of the allegations that have been made. However, it is recognised that suspension may be stressful for the employee involved, and for this reason, all suspended employees will be issued with a list of local Staff Side/Professional Organisations contact numbers (available on the Trust Intranet) and allocated a designated contact person within the Trust. Suspended employees will be able to contact their designated contact person during the investigation, and will also be asked whether they wish to receive a weekly telephone call from this person. Suspended employees will also be offered access to counselling if appropriate. The authority to suspend rests with the appropriate senior member of staff on duty at the time, however, they should attempt to obtain advice from the Human Resources Department or on-call director before suspending. Prior to suspending an employee, alternatives such as assignment to other duties, change of work base or change of line manager will always be considered and, if appropriate, discussed with the employee. These alternative arrangements will be reviewed no less than every four weeks during the disciplinary investigation; this will be undertaken by the investigating officer and a HR representative, in order to determine whether the arrangements are still necessary and proportionate. If alternative arrangements become unworkable, or an employee refuses to agree to them, suspension may be the only option. Wherever possible, employees should be suspended in person. If the employee is not at work and cannot be contacted, the suspending manager must ensure that a letter is hand-delivered to their home address, informing them that they are not to report for duty, and must instead contact the writer of the letter as a matter of urgency. An employee who is suspended must be informed clearly of the reasons for suspension, that suspension does not indicate a presumption of guilt and advised to contact their union representative if applicable. Following suspension, written confirmation of the suspension and the reasons for it must be sent to the employee as soon as possible and no later than the next working day after the suspension. Any suspension should be regularly reviewed by the investigating officer, with the review confirmed in writing to the employee, and where relevant their representative, at least every four weeks. If the original reasons for the suspension no longer apply, or an alternative arrangement becomes available, this should be discussed with the employee, who will be required to return to work if appropriate. During a period of suspension, an employee should remain available for work with the Trust and can reasonably be expected to attend meetings in normal working hours, unless a period of annual leave has been booked in advance of being notified of the meeting. If an employee becomes too ill to work during a period of suspension, they should report this in the normal Page 9 of 32
way, providing a Statement of Fitness to Work if their illness lasts for over seven calendar days. If an employee states that they are unable to attend meetings held under this procedure as a result of illness, they may be referred to Occupational Health for advice on when they are likely to be fit to participate. Suspension will normally be on full pay (which includes an average of the enhancements which an employee has been paid in the three months prior to their suspension). However, if a suspended employee becomes ill, and Occupational Health advises that they are unable to participate in the process as a result (or if the employee fails to attend Occupational Health in such circumstances), the employee will be paid Occupational Sick Pay. Where a suspended employee utterly fails to engage with the disciplinary process and does not maintain contact with the Trust, the Trust reserves the right to suspend all pay, although such a decision can only be taken by a manager at Director Level. Whilst on suspension, normal rules regarding the booking and taking of annual leave apply, and suspended employees should continue to book and take annual leave as they would if they were not suspended. In common with employees who remain at work, suspended employees will not normally be able to carry over annual leave entitlement between financial years. In order to allow for an unhindered investigation, suspended employees should not contact other employees of the Trust (excluding their designated contact person and their trade union representative) or enter Trust premises (unless attending meetings connected with their suspension of medical appointments). If a suspended employee wishes to contact another Trust employee or enter Trust premises for any other reason, they should seek permission from their designated contact person. 5.6 Investigations An appropriate and thorough investigation will be carried out into the allegations or incident before any further formal action is taken. The investigation is a formal meeting or number of meetings which will form the basis of the investigation report which may or may not result in disciplinary action. However the provision of MHPS apply to medical and dental investigations and further guidance should be sought from the Medical Staffing Team. The purpose of the investigation is to establish the facts of the case and to produce a report in relation to the findings and the recommendations. The investigating officer must act impartially and independently of undue influence from others. As far as possible the clear nature of the allegations/concerns should be confirmed in writing to the employee, thus ensuring that they are aware of the nature and extent of the investigation. The investigation will include Page 10 of 32
requesting statements from (see section 5.2) and interviewing the employee concerned and any witnesses, and the gathering of any documentary evidence to ensure that the investigating officer has a full understanding of all of the relevant information. In the event if significant difficulty in interviewing any of the witnesses, the rationale for not pursing the investigation with these particular witnesses should be detailed in the Investigation report. The employee should be updated every four weeks on the progress of the investigation. If the nature of the allegations/concerns alters during the course of the investigation, then this information should also be confirmed in writing to the employee. During the course of the investigation the employee must be given the opportunity to respond to all of the allegations/concerns which may mean that the employee is requested to attend an investigatory meeting on more than one occasion. The audio/visual recording of investigation meetings is not permitted by the Trust. In all cases, an investigation report will be produced by the investigating officer, detailing the allegations and summarising any evidence and the recommendations as a result of the investigation. In all cases, investigations should be completed in a timely manner. If, for any reason, an investigation is still on-going twelve weeks after the alleged misconduct first came to light, the investigating manager will be required to notify the relevant director in writing of the reason for the delay. It should be noted that, where an employee of the Trust is asked to provide a witness statement, or to attend an investigation meeting as a witness, the Trust regards this as a reasonable management request, which should be complied with. If an employee is requested as a witness, a guidance sheet will be made available by the Investigating Officer explaining the witness s role within the disciplinary process and the expectations of the Trust (see appendix B). All employees, whether or not they are the subject of the investigation, are entitled to be accompanied by a companion. The chosen companion may be a fellow Trust employee, a trade union/professional organisation representative or an official employed by a trade union/professional organisation. Employees may also seek advice from their companion if they are required to write/submit a statement as part of a disciplinary investigation. A companion must not be implicated or involved with the investigation. Where it is necessary to meet with any employee as part of an investigation, Page 11 of 32
they will be informed of the meeting, its purpose and their right to representation in writing. Following any investigation, a decision will be taken as to whether the allegations need to be considered at a formal disciplinary hearing and the employee will be informed of this decision in writing.. 5.7 Raising a Grievance during Disciplinary Proceedings If an employee raises a formal grievance or a formal complaint of bullying or harassment during the course of a disciplinary case, consideration will be given to suspending the disciplinary procedure whilst the grievance or complaint is dealt with. Where the grievance and disciplinary cases are connected, it may be appropriate to deal with both issues concurrently. If an investigation concludes that the grievance or complaint was groundless and raised solely with the intention of avoiding or disrupting disciplinary action, the original disciplinary process will be resumed and consideration given as to whether further disciplinary action should be taken in relation to this matter. 5.8 Proposed action against a trade union/professional organisation representative Although normal disciplinary standards apply to all accredited trade union representatives conduct as employees, any concerns should be discussed at an early stage with a full time official employed by the union, after obtaining the employee's agreement. 5.9 Formal Disciplinary Action Before any formal disciplinary hearing, the employee will be written to and advised of the allegations which will be considered at the hearing. Where applicable, due consideration will be given to religious observances when arranging the hearing. All of the documents to be considered at the hearing will be enclosed with the letter and will provide details of any witnesses the Trust intends to call at the hearing. The letter will also remind the employee of their right to be accompanied by a companion. The definition of a companion is detailed in section 5.5. The letter will be sent to the employee at least seven working days before the date of the hearing. Should the disciplinary pack be of significance then wherever possible further time should be allowed to support preparation. In order to facilitate staff side representation it is advantageous to provide as much notice as possible of the hearing date. It is important to ensure that the disciplinary panel has the opportunity to resolve any conflicting accounts from witnesses in order to reach a view/decision. It is therefore advisable for the management side to ensure all relevant witnesses attend the hearing to provide evidence. Page 12 of 32
If the employee wishes to call any witnesses at the hearing, they should make arrangements for their attendance, and inform the Trust (if the employee is suspended, they should seek permission from their designated contact person prior to contacting any potential witnesses who are Trust employees). The hearing manager should also review all of the information sent to the employee in preparation for the hearing. The employee will be given the opportunity to state their case, question the Investigating Officer and any witnesses and make a closing statement. The companion will be allowed to address the hearing to detail and summarise the employee s case, respond on behalf of the employee to any views expressed at the hearing and confer with the employee during the hearing. The companion does not, however, have the right to answer questions on the employee s behalf, address the hearing if the employee does not wish it or prevent the employee from explaining their case. The hearing manager will adjourn the disciplinary hearing to consider all of the information which has been presented, prior to reaching their decision. The expectation is that the disciplinary outcome is verbally communicated to the employee and their companion on the same day as the hearing, but if this is not feasible then the hearing manager and provide an explanation and will agree the timescales and method of communication with the employee and their companion. If there are any references to other employees or third parties, or to other issues not directly related to the employee who is subject to formal action in the material to be circulated, these may be removed prior to its being sent out, in the interests of confidentiality. The audio/visual recording of disciplinary hearings is not permitted by the Trust. 5.9.1 Re-scheduling of Disciplinary Hearings If an employee fails to attend a disciplinary hearing, either because their representative is unavailable, or for any other reason, the hearing will be rescheduled to a date within two weeks of the original date. Where possible, this re-scheduling will occur in consultation with the employee's representative, in order to ensure their availability. The letter requiring the employee to attend the re-scheduled hearing will clearly state that, should the employee fail to attend, the hearing will be conducted in their absence. Should an employee fail to attend a re-scheduled hearing, the manager hearing the case will give consideration to the reasonableness of any explanation given in advance for the non-attendance, but will normally proceed to hear the case in the employee's absence and confirm the Page 13 of 32
outcome to the employee in writing, unless there are compelling reasons not to do so. 5.9.2 Disciplinary Sanctions Disciplinary sanctions are intended to provide an employee with the opportunity and impetus to improve their behaviour, as well as making them aware of the consequences of failing to do so. It may, however, sometimes be necessary, according to the severity of the alleged misconduct, to move towards a final written warning or dismissal where a lesser sanction would be considered inappropriate. For example, where the misconduct has been such that repetition could not be tolerated, a final written warning would be appropriate. Except for gross misconduct (defined below at 5.8.4), no employee will be dismissed for a first breach of discipline. Disciplinary sanctions can only be issued by a manager with the delegated authority to do so, as set out at Appendix A. If the manager hearing the case feels that the alleged misconduct, if proven, will merit a sanction at a higher level than they are authorised to issue, in accordance with the schedule of delegation they should adjourn the hearing, and arrange for the case to be re-heard at a later date by a more senior manager. The potential outcomes of a formal disciplinary hearing include no action, or one of the sanctions set out below. If an employee is already subject to an Improvement Notice or Warning, the outcome could be an extension of the existing sanction. Should an employee have accepted responsibility for issues of a similar nature under the Personal Responsibility Framework as detailed in Section 5.1 consideration may be given to the appropriate level of sanction under this policy based on previous acknowledgement of those issues. 5.9.2.1 Improvement Notice If an allegation of misconduct which is not serious in nature is upheld, an Improvement Notice would normally be issued, setting out the nature of the misconduct and the change in behaviour required. The Improvement Notice will remain active for 6 months from the date of the hearing (although if the employee is absent from work for a period of over four weeks during this period, the Improvement Notice will be extended to reflect the period of absence), and will be disregarded for disciplinary purposes after this time. However, a record of the Improvement Notice will remain on the employee's personal file indefinitely. The employee will be informed that the consequence of failure to change the behaviour that has led to the issue of an Improvement Notice will result in a further investigation and possible disciplinary action, which could then result in a more serious sanction. Page 14 of 32
5.9.2.2 First Written Warning Where there is a failure to respond to an Improvement Notice, or where the alleged misconduct is sufficiently serious and the allegation is upheld, the employee may be issued with a First Written Warning, setting out the nature of the misconduct and the change in behaviour required. The First Written Warning will remain active for 6 months from the date of the hearing (although if the employee is absent from work for a period of over four weeks during this period, the First Written Warning will be extended to reflect the period of absence), and will be disregarded for disciplinary purposes after this time. However, a record of the First Written Warning will remain on the employee's personal file indefinitely. The employee will be informed that the consequence of failure to change the behaviour that has led to the issue of a First Written Warning will be further disciplinary action, which could result in a more serious sanction. 5.9.2.3 Final Written Warning In cases where an employee has failed to respond to lesser disciplinary sanctions, or where the alleged misconduct is very serious and the allegation is upheld, the employee may be issued with a Final Written Warning, setting out the nature of the misconduct and the change in behaviour required. The Final Written Warning will remain active for 12 months (or longer in exceptional circumstances) from the date of the hearing (although if the employee is absent from work for a period of over four weeks during this period, the Final Written Warning will be extended to reflect the period of absence), and will be disregarded for disciplinary purposes after this time. However, a record of the Final Written Warning will remain on the employee's personal file indefinitely. The employee will be informed that the consequence of failure to change the behaviour that has led to the issue of a Final Written Warning will be further disciplinary action, which depending on the circumstances, could result in their dismissal. 5.9.2.4 Dismissal Where there is a failure to respond to a lesser disciplinary sanction, or where an allegation of gross misconduct is upheld, the employee may be dismissed. In cases where the dismissal relates to a failure to respond to a lessor disciplinary sanction the employee will receive pay in lieu of notice. The pay in lieu of notice will be paid at the next available pay date, which may be the month of the dismissal or the following month if the payroll has already been processed for that month. A payment in lieu of notice is calculated on basic/contractual pay only. Page 15 of 32
In cases of gross misconduct, dismissal will be 'summary' - i.e. the employee will not be entitled to receive notice or pay in lieu of such notice. In other circumstances, e.g. issues dealt with under the Management of Performance (Capability) Policy and Procedure and the Policy Relating to the Management of Sickness Absence dismissal will be with full pay and notice. 5.9.3 Disciplinary letters Whilst an employee will generally be informed of the outcome of a disciplinary hearing at the conclusion of the hearing, it must also be confirmed in writing, usually within seven calendar days of the hearing. Consideration must be given to the requirement of the Information Sharing with External Organisations Policy (section 6.2). The letter should set out the allegations against the employee, and whether or not they were upheld, as well as giving a summary of the reasons for the decision. It should also give details of any formal sanction issued, including its duration, the behaviour that led to its issue and the consequences of failure to change such behaviour (provided that the employee has not been dismissed). The letter should give details of how to appeal against any formal disciplinary sanction. It is the responsibility of the manager hearing the disciplinary case to ensure that this letter is sent. 5.9.4 Gross Misconduct Gross misconduct is an act or series of acts which result in a serious breach of contractual terms (either implied or explicit), including a breach of the implied term of trust and confidence between employees and their employer. The following list, which is neither exhaustive nor exclusive, gives examples of Gross Misconduct, which may lead to summary dismissal: Physical violence - this may include an assault on a fellow employee, patient or member of the public or fighting or physical abuse. Theft or fraud - this may include the receipt of money, goods or a pecuniary advantage in respect of any services rendered, any deliberate attempt to defraud the Trust, a member of staff, a patient or a member of the public, or the falsification of time sheets or other records, including patient notes. Serious bullying, harassment or discrimination - reference should be made to the Trust's Personal Harassment Policy. A single act of bullying, discrimination and/or harassment, if found to be sufficiently serious, could be considered gross misconduct. Deliberately or negligently causing serious damage to Trust property, or the property of fellow employees, other workers or patients. Page 16 of 32
Serious insubordination. Serious misuse of the Trust's property, name or computer systems. Bringing the Trust into serious disrepute including significant breaches of the Policy relating to employee usage of social media Being under the influence of alcohol or illegal drugs at work, or consuming such substances at work - reference should be made to the Trust's Policy in Relation to Employees with Drug and Alcohol Related Problems. Serious breach of health and safety procedures and/or regulations. Serious breach of confidence, subject to the terms of the Public Interest (disclosure) Act 2013 - this includes serious breaches in relation to mechanisms in place to keep personal data secure or breaches of patient confidentiality. Harming, or placing at risk of harm, a child or adult, whether deliberately or through negligence. Serious breaches of the Code of Conduct of an employee's Professional Body. 5.9.5 Criminal Action The Trust reserves the right to take disciplinary action when events or allegations are the subject of a police or Counter Fraud investigation or criminal proceedings relating to alleged conduct or incidents outside the workplace. For Medical and Dental staff further consideration should be given to Maintaining High Professional Standards. Criminal conduct or alleged criminal conduct outside employment may lead to dismissal in certain circumstances. The main consideration will be whether the situation is one that makes the employee unsuitable for their work or unable to fulfil the obligations of the contract of employment in a satisfactory manner. Misconduct outside the Trust where it has a direct bearing on the Trust's operation or reputation may also render an employee liable to disciplinary action including dismissal. Where the Trust suspects that an employee has committed a criminal act (for example, fraud or abuse of patients) it reserves the right to refer the Page 17 of 32
matter to the police or the Local Counter Fraud Specialist (LCFS) as appropriate. 5.10 Right of Appeal In cases where an Improvement Notice, First Written Warning or Final Written Warning has been issued, employees have the right to appeal against the decision to a manager one level above the manager who made the original decision. Employees who have been dismissed have the right to appeal against the dismissal to representatives of the Board of Directors. Employees will be advised at disciplinary hearings and in the letter confirming the outcome of any disciplinary hearing of their right of appeal and will be given details of to whom any appeal should be addressed. Appeals must be lodged in writing by the employee or their Staff Side/Professional Organisation Representative within 21 calendar days of the date of the letter confirming the disciplinary sanction, and the case for the appeal must be outlined in full. Appeal hearings will be a review of the original decision, based on the case submitted by the employee and management's response. Appeal panels will not contain anyone who has had previous involvement with the case. Appeal panels will be advised by a member of the Human Resources Department. The purpose of the hearing will normally be to establish whether or not the conclusions of the original disciplinary hearing were correct and whether or not the disciplinary sanction imposed at that hearing should be upheld, overturned, or replaced with some other sanction. Where an appeal is to representatives of the Board of Directors, the panel will consist of three members of the Board of Directors and will be chaired by a Director. Where the panel has fully re-heard the case and decides that the original sanction was inappropriate, the Director on the panel will decide what, if any, alternative sanction to issue after taking into account the views of the other panel members and the advice of the Human Resources representative. Where the appeal panel has not heard all of the evidence that was presented to the original disciplinary panel, but feels that the original outcome was unreasonable, they can remit the case to a fresh disciplinary panel for a full re-hearing. Should the appeal panel believe further information is required appropriate adjournment(s) to obtain the information should be taken. The letter will also remind the employee of their right to be accompanied by a companion who is not otherwise involved in the process. The definition of a companion is detailed in section 5.5. Page 18 of 32
Appeals will always be dealt with as soon as possible, and will if possible be heard within six weeks of an appeal being lodged. 5.11 Referral to the Disclosure and Barring Service Where an employee is dismissed, or resigns from their position, following allegations that they have harmed or placed at risk of a harm a child or adult, whether deliberately or negligently, the Trust has a legal duty to refer the case to the Disclosure and Barring Service (DBS). The DBS will review the case, and decide whether it is necessary to place the individual's name on either the Children's or Adults' barred list, thus preventing them from working in a regulated position with the group in question. 5.12 Referral to Professional Bodies In cases where disciplinary action is taken against an employee regarding the allegations that may constitute a breach of the Code of Practice of the relevant Professional Body, the Trust may refer the case to the employee's Professional Body. Consideration should be given in respect of whether an immediate referral should be made at the investigation stage. This would apply where the allegations are serious in nature and/or the employee resigns from the Trust. Any decision to instigate a referral for nursing employees would be made by the Deputy/Director of Nursing and they should be contacted for advice in respect of this matter. A decision to instigate a referral for Medical employees would be made by the Medical Director and they should be contacted for advice in respect of this matter. Where the Professional Body then suspends, removes or places conditions on an employee's professional registration, the Trust may need to take further disciplinary action. 6. TRAINING IMPLICATIONS There are no specific training needs in relation to this policy, but the following staff will need to be familiar with its contents; Board of Directors Managers Employees Staff Side/Professional Organisation Representatives Page 19 of 32
7. MONITORING ARRANGEMENTS Area for Monitoring Number of formal disciplinary cases Ethnicity and gender of staff subject to formal disciplinary action Methodology Who by Reported to Frequency Completion of monitoring data by HR staff Completion of monitoring forms by HR staff Head of Workforce HR Manager People Sub- Committee (through Workforce Monitoring Report) People Sub- Committee(through Workforce Monitoring Report) Sixmonthly Sixmonthly 8. EQUALITY IMPACT ASSESSMENT The completed Equality Impact Assessment for this Policy has been published on this Policy s webpage on the Trust Internet. 8.1 Privacy, Dignity and Respect The NHS Constitution states that all patients should feel that their privacy and dignity are respected while they are in hospital. High Quality Care for All (2008), Lord Darzi s review of the NHS, identifies the need to organise care around the individual, not just clinically but in terms of dignity and respect. As a consequence the Trust is required to articulate its intent to deliver care with privacy and dignity that treats all service users with respect. Therefore, all procedural documents will be considered, if relevant, to reflect the requirement to treat everyone with privacy, dignity and respect, (when appropriate this should also include how same sex accommodation is provided). Indicate how this will be met No issues have been identified in relation to this policy. 8.2 Mental Capacity Act Central to any aspect of care delivered to adults and young people aged 16 years or over will be the consideration of the individuals capacity to participate in the decision making process. Consequently, no intervention should be carried out without either the individuals informed consent, or the powers included in a legal framework, or by order of the Court Therefore, the Trust is required to make sure that all staff working with individuals who use our service are familiar with the provisions within the Mental Capacity Act. For this reason all procedural documents will be considered, if relevant to reflect the provisions of the Mental Capacity Act 2005 to ensure that the interests of an individual whose capacity is in question can continue to make as many decisions for themselves as possible. Indicate How This Will Be Achieved. All individuals involved in the implementation of this policy should do so in accordance with the Guiding Principles of the Mental Capacity Act 2005. (Section 1) Page 20 of 32
9. LINKS TO ANY ASSOCIATED DOCUMENTS Induction Policy - Employment Policies - Grievance and Dispute Policy - Employment Policies - Management of Performance (Capability) Policy and Procedure - Employment Policies - Personal Harassment Policy - Employment Policies Policy relating to the Management of Sickness Absence - Employment Policies Policy in Relation to Employees with Drug and Alcohol Related Problems - Employment Policies Counter Fraud, Bribery and Corruption Policy - Financial Policies Safeguarding Adults Policy - Clinical Policies Safeguarding Children Policy - Clinical Policies Information Sharing with External Organisations Policy Information Policies Policy relating to Employee Usage of Social Media Employment Policies Personal Responsibility Framework SOP (under development) Freedom to Speak Up: raising concerns (whistleblowing) policy for the NHS Employment Policies Relationships at Work Policy Employment Policies 10. REFERENCES Advisory, Conciliation and Arbitration Service. (2015). Code of Practice on Disciplinary and Grievance Procedures. Department of Health. (2005). Maintaining High Professional Standards in The Modern NHS. The Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 11. APPENDICES Page 21 of 32
APPENDIX A SCHEDULE OF DELEGATED AUTHORITY TO DEAL WITH DISCIPLINARY MATTERS Authority to deal with disciplinary matters is delegated in accordance with the following schedule. As a general rule, no manager may dismiss an immediate subordinate. Such a decision will be taken by a higher level of management (i.e. normally by a manager on a level higher than the immediate supervisor/manager). In the event that the manager identified on the schedule is not able to handle a particular disciplinary matter, the hearing may be conducted by the next most senior manager in the Care Group/Corporate hierarchy, or by an equivalent manager from another Directorate. In serious disciplinary matters where the Director is not available due to long term absence, the Chief Executive will determine whether the matter be: a) dealt with by an acting manager with delegated authority to dismiss; b) dealt with by an alternative Director; c) handled by the Chief Executive. Where professional matters are to be addressed under this procedure, consideration needs to be given to whether the scheme of delegation facilitates appropriate professional advice being available to the disciplining officer. Where such advice is required the appropriate professional advisor should be contacted. Where changes in the organisational structure take place, a facility will exist for Staff Side and Management to agree interim revisions to the scheme of delegation pending publication of a revised schedule. Page 22 of 32
Schedule of Delegated Authority to deal with Disciplinary Matters APPENDIX A Category of Improvement First Written Final Written Dismissal Staff Notice Warning Warning Chief Executive Chairman Chairman Board of Directors Board of Directors Director Chief Executive Chief Executive Trust Board Trust Board Deputy Director/ Head of Department Director Director Director Chief Executive Head of Service/Care Group Director Deputy Assistant Director Modern Matron/ Service Manager Chief Pharmacist/ Lead Psychologist Medical Staff - Consultants Medical Staff Non Consultant grades All other staff Director Director Director Chief Executive Care Group Director Deputy Assistant Director/ Assistant Director Care Group Director Care Group Directors Service Manager/ Head of Service/ Care Group Director /Medical Director Line Manager (Band 6 and above) Care Group Director Deputy Assistant Director/ Assistant Director Care Group Director Care Group Directors Service Manager/ Head of Service/ Care Group Director/ Medical Director Line Manager (Band 6 and above) Director Care Group Director Director Care Group Directors Service Manager/ Head of Service/ Care Group Director/ Medical Director Modern Matron/ Service Manager/ Departmental Manager (Band 8a or above) Director Director Chief Executive Deputy Directors - Head of Department terminology relates to corporate directorates where there the is not a Deputy Director in the organisational structure, then the most senior manager who reports to the Director, known as a Head of Service will chair the hearing, as well as the Head of All Age Services and Head of Specialist Services within the Doncaster Care Group. Chief Executive Care Group Director/ Medical Director Care Group Director/ Deputy Directors - Head of Department* Page 23 of 32
APPENDIX B Writing a Statement: Guidance for Staff This guidance also applies to students, volunteers and secondees working within the Trust. The Trust has a responsibility to follow up any concerns raised about the conduct or performance of individual members of staff, teams or services. If requesting a statement from a member of staff, managers should issue this guidance at the time of making the request. Statements If you have raised concerns or allegations, have witnessed incidents of concern, or have had allegations made about you, you may be asked to provide a written statement about what happened. You may be provided with appropriate help in completing a written statement if you need it, for example if you have a disability or English is not your first language. However, it is important that the statement is written in your own words and is not influenced by the views or recollections of others. Before writing a statement: Be clear about why you have been asked to write it. If you are unsure, ask. You can contact your Trade Union/Professional Organisation for advice. Be aware that your statement may be used for the purposes of an investigation and you therefore may be asked to attend an investigatory interview to discuss it further. If the allegations are serious, you may also be asked to attend a disciplinary hearing as a witness at a later date. When writing your statement: It should be typed if possible and if not, the writing should be clearly legible. Record what you saw / heard / noticed / the venue / layout. This should be based on facts that you personally witnessed. Wherever possible include the date and time of the incident(s). If you don t remember details, record this on your statement. Don t guess. Record names of other people who were present at the time the incident(s) occurred (give their full name and position, if known). Do not use abbreviations. Page 24 of 32