DISCIPLINARY POLICY REVIEWED BY DATE POLICY DEVELOPMENT GROUP 23.10.2013 APPROVED BY South Gloucestershire Clinical Commissioning Group Quality and 07.11.2013 Governance Committee Date of Issue: 07/11/2013 Version No: 1 Date of Review: August 2014 Author: North Bristol Trust HR Department & Joanne Rowse, Head of Governance and Risk 1
CONTENTS Section Summary of Section Page Cont Contents 2 1 Policy Statement 4 2 What is the purpose of the Disciplinary Procedure? 4 3 Who does the Policy and Procedure apply to? 4 4 Who does the 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 be suspended from duty? 5 8 How are investigations conducted? 5 9 Formal Hearings under the Disciplinary Procedure 6 10 What happens at a formal hearing under the disciplinary procedure? 8 11 Decisions of the Panel 9 12 Possible outcomes 10 13 How to appeal against a disciplinary sanction or dismissal 11 14 How are records kept? 11 15 What happens to spent warnings? 11 16 How will disciplinary cases be monitored? 11 17 Policy Review statement 11 Appendix Appendix 1 Definition of Terms 13 Appendix 2 The Right to be Accompanied 15 Appendix 3 Disciplinary Procedure Flow Chart 16 2
Appendix 4 Example Letter for Notification of Disciplinary Hearing 17 Appendix 5 Example of Disciplinary Outcome Letter 18 Appendix 6 Cover Sheet for Disciplinary Hearing 19 Appendix 7 Issues to be Considered When Deciding on Disciplinary Outcome 20 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 3
1. POLICY STATEMENT 1.1 NHS South Gloucestershire Clinical Commissioning Group (CCG), recognises that from time to time members of staff may fall short of the standards required by the service 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 PROCEDURE 2.1 To bring about improvements in the conduct of members of staff and where appropriate in systems of work. 3. WHO DOES THE POLICY AND PROCEDURE APPLY TO? 3.1 All members of Clinical Commissioning Group staff in cases of misconduct. 4. WHO DOES THIS POLICY AND PROCEDURE NOT APPLY TO? 4.1 Those employed by other organisations and honorary staff. The e m p l o y i n g organisation must deal with any disciplinary matters involving such staff. 5. WHAT SORT OF PROBLEMS DOES THIS POLICY AND PROCEDURE COVER? Minor misconduct Serious misconduct Gross misconduct 5.1 The definitions are provided in Appendix 1 5.2 This Policy does not cover capability issues. Please see the Capability Policy for further guidance on this subject. 6. WHAT ARE THE KEY PRINCIPLES? a) Employees must be aware of the allegations made against them and be given an opportunity to respond. b) Staff have a statutory right to be accompanied and supported by a fellow worker or trade union representative (see Appendix 2 for more information) c) The Investigating Officer will receive guidance and support throughout all stages of the procedure from a Human Resources (HR) professional. 4
d) No formal disciplinary hearing will be set up until the case has been fully investigated by an Investigating Officer, as defined in the CCG s Investigating [Employment] Complaints and Allegations Policy and Procedure. e) Except in a case of gross misconduct (defined in Appendix 1), an employee will not be dismissed for a first breach of conduct. f) Dismissals can only be sanctioned by an agreed Dismissing Officer, as defined in point 9.1 of the Disciplinary Procedure. g) 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. h) Disciplinary decisions will be recorded and monitored by the HR 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 CCG will take remedial action accordingly. i) 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. j) 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. k) If there are concerns that the process has not been followed correctly, the policy breached or there are any other concerns related to this disciplinary procedure 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 on-going. 7. SHOULD THE MEMBER OF STAFF BE SUSPENDED FROM DUTY? 7.1 On occasions it may be necessary to consider suspending a member of staff (on pay) from duty. This is a neutral act which does not constitute disciplinary action and which does not imply guilt. 8. HOW ARE INVESTIGATIONS CONDUCTED? 8.1 Investigations will be conducted in accordance with the Investigating [Employment] Complaints and Allegations Policy and Procedure. Managers must ensure that they refer to the Investigating [Employment] Complaints and Allegations Policy and Procedure before conducting any investigation into allegations. 5
9. FORMAL HEARINGS UNDER THE DISCIPLINARY PROCEDURE 9.1 Who may sanction disciplinary action? 9.1.1 Disciplinary action shall be the responsibility of authorised levels of management to whom disciplinary powers have been delegated as follows: Possible level of warning: Authorised level of manager: Formal Warning Line Manager/ Head of Department Final Written Warning Director (may be delegated) Dismissal Director 9.1.2 Cases of disciplinary action involving the Chief Officer or members of the CCG Governing Body will be referred to the NHS England Area Team. 9.1.3 It should be noted that all managers involved in the Disciplinary process will be provided with support and training from HR prior to the hearing. 9.2 Who should be on the panel? A Chair of the Panel who should normally be more senior than the Investigating Officer (and not be within the same Department as the employee involved) A Human Resources professional [in an advisory capacity]. One other senior manager of an appropriate level may also attend in cases where the allegation is of gross misconduct. When necessary an appropriate professional advisor should be included. 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. 9.3 Who will present the Management Case? 9.3.1 The Investigating Officer will present the Management Case to the panel. 9.3.2 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. 9.4 Who will present the Member of Staffs Case? 9.4.1 The employee who is the subject of the hearing. They may also be accompanied by a representative of a recognised trade union, a fellow worker or a companion of their choice. 9.4.2 Witnesses may be called in support of the employee s case. The employee must notify the Panel if they wish to call any witnesses in support of their case. It is the employee s responsibility to arrange the attendance of their 6
witnesses at the hearing. 9.5 How will the hearing be arranged? 9.5.1 Once the decision has been made to convene a formal hearing under the Disciplinary Procedure this must be confirmed in writing. A template letter can be found in Appendix 4. 9.5.2 The letter to the member of staff should include the following information: The date, time and venue of the meeting. [At least 7 working 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. 9.5.3 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. 9.5.4 The member of staff is given 5 working days to prepare and return a response to the allegation. 9.5.5 The letter will be copied to the identified Trade Union representative, or fellow worker that supported the accused during the investigation unless the accused requests otherwise. 9.5.6 Consideration will be given to the availability of the employee s representative however it is expected that the employee and their representative make every effort to attend the Hearing. 9.5.7 If the accused 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. 9.6 What guidance should be offered to the member of staff? 9.6.1 The member of staff should seek guidance on how to compile a response to 7
the allegation (their case). This may be sought from the Trade Union Representative if they are a member or from a fellow worker. 9.6.2 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. 9.7 Arranging information packs for the hearing 9.7.1 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. 9.7.2 No new information can be submitted at this stage or during the hearing. 10. WHAT HAPPENS AT A FORMAL HEARING UNDER DISCIPLINARY PROCEDURE? 10.1 (See also flow chart in Appendix 3) a) The 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 shall put his or her case in the presence of the manager. f) The members of the Panel shall have the opportunity to ask questions of the member of staff, the member of staffs representative or witnesses. g) The manager shall have the opportunity to ask questions of the member of 8
staff and their representative and witnesses. h) The member of staff or their representative shall have the opportunity to reexamine his or her witnesses on any matter referred to in their examination by members of the Panel or the CCG s representative. 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 Chairman will indicate whether they should remain available for the duration of the hearing in case it is necessary to recall them. 10.2 The panel are required to complete the cover sheet contained within Appendix 6 to be attached to all other documentation relating to the hearing. 11. DECISIONS OF THE PANEL 11.1 If the member of staff is off sick during the disciplinary process, the investigating manager should refer to Occupational Health to determine whether the hearing should continue in the absence of the employee. 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. Clear records should be made to demonstrate how the panel arrived at their decision and the factors considered during this process. 11.2 Decisions, and the reasons for those decisions will be confirmed in writing. A template letter can be found in Appendix 5. 11.3 The written confirmation, which will be from the chair of the panel, should include: Date, time and venue of the hearing. 9
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 The duration of the sanction, if appropriate The right of appeal under the CCG s Appeals Procedure (and enclose a copy of the Appeals Policy). 12. POSSIBLE OUTCOMES 12.1 The outcome will depend on the details of the hearing and may be as follows: a) No case to answer b) No formal action. This may include the requirement for the individual to attend training or informal counselling sessions with their manager or other identified individual. c) Stage One: Formal Written Warning: Appropriate in cases involving offences of minor misconduct, or where attempts at counselling have failed to secure improvement. To remain live for 12 months, see also point 14. d) Stage Two: Final Written Warning: Appropriate where there is a current formal warning on file, or where serious misconduct is proven. To usually remain live for 24 months, see also point 14. 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) Stage Three: 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 10
dismissed [without notice or a payment in lieu of notice] only in the event of gross misconduct. 13. HOW TO APPEAL AGAINST A DISCIPLINARY SANCTIOIN OR DISMISAL 13.1 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. 13.2 Appeals against informal outcomes are not permitted. 14. HOW ARE RECORDS KEPT? 14.1 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 live. 15. WHAT HAPPENS TO SPENT WARNINGS? 15.1 Once the live 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. 15.2 Where it is in the public interest, information relating to spent warnings may be kept in accordance with the provisions of the CCG s Whistleblowing Policy. This information will normally be agreed by the individual, their representative, manager and Human Resources Department. 16. HOW WILL DISCIPLINARY CASES BY MONITORED? 16.1 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. 16.2 The Human Resources Department will collate and provide to the Governing Body, at least annually, monitoring information relating to disciplinary cases. This will include analysis of: The types of cases brought The outcomes 16.3 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. 17. REVIEW 17.1 This policy and procedure will be reviewed after 2 years or earlier on the request of either the Trade Union or management side of the recognised 11
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. 12
APPENDIX 1 DEFINITION OF TERMS 1. Minor Misconduct 1.1 Any infringement of the CCG s rules, regulations, policies or procedures as stipulated by the CCG s managers from time to time. 1.2 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 CCG s Policies and Procedures. 2. Serious Misconduct: For example Failure to respond to previous written warnings. Prolonged or repeated acts of misconduct. Email/Internet misuse. Insubordination 3. Gross Misconduct 3.1 Behaviour of such a nature that the CCG is justified in no longer tolerating the continued presence at the place of work. These acts seriously breach contractual terms. Examples include: Serious 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 CCG property or equipment Physical violence or bullying Deliberately accessing internet sites containing pornographic, offensive or obscene material. Serious insubordination 13
Bringing the organisation into disrepute Serious breach of Health and Safety rules Serious breach of confidence. This is not an exhaustive list and there may be other acts of misconduct of similar gravity that would constitute gross misconduct. 14
APPENDIX 2 The Right to be Accompanied (taken from the ACAS Code of Practice on Disciplinary and Grievance Procedures) 1. Employees have a statutory right to be accompanied by a fellow worker or trade 2. Union official when they are required or invited by their employer to attend disciplinary interviews/hearings. 3. Informal discussions or counselling sessions do not attract the right to be accompanied unless they could result in formal warnings or other actions. 4. Employees must make a reasonable request to their employer if they want to be accompanied and tell the employer who their companion is. 5. The Companion can be a fellow worker or a trade union representative. 6. Nobody has to accept an invitation to act as a Companion, and should not be pressurised to do so. 7. 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. 8. The Companion can have a say at the interview/hearing but cannot answer questions for the employee. 9. Employees who are acting as Companions can take paid time off to prepare for and attend a meeting/hearing. 15
APPENDIX 3 Summary Of What Happens At A Formal Hearing Under The Disciplinary Procedure 1. Manager summarises key points of written Statement of Case and calls witnesses in presence of employee &/representative. 2. Disciplinary Panel questions manager and witnesses. 4. Manager re-examines his or her witnesses on any matter referred to in their examination by members 3. Employee or representative asks questions of manager and witnesses. 5. Employee or employee s representative puts his or her case in presence of manager 7. Manager has opportunity to ask questions of employee, employee s representative or employee s witnesses. 6. Disciplinary Panel question the employee, their representative or witnesses. 8. Employee or employee s representative re-examines witnesses. 10. Employee or representative sum up and make closing statement. 9. Manager sums up & makes closing statement. 11. Adjournment while Panel reaches decision. 12. Decisions and reasons 16
APPENDIX 4 EXAMPLE OF 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 meeting will be held as follows: Date: Time: Venue : The purpose of the meeting 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 meeting will be in the presence of (state name and job title) and myself. 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 within 5 working days of the date of this letter. The Disciplinary hearing has been established in accordance with the CCG 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 warning and may (if appropriate) include dismissal. 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 17
APPENDIX 5 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 myself. who 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 CCG s Appeals Policy (attached). Yours sincerely 18
APPENDIX 6 COVER SHEET FOR DISCIPLINARY HEARING Panel Details: 1. Name. Title Chair 2. Name.. Title.. 3. Name.. Title.. Employee Details: Name. Title. Representatives Details: Name.. Title. Key Dates: 1. Date employee informed of allegation. 2. Date investigate completed 3. Date of Disciplinary Hearing. Allegation as stated: 19
APPENDIX 7 ISSUES 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. 1. What evidence is there to support the allegation? 2. Given the evidence available, how likely is it that the allegation / incident as described actually occurred? 3. Are there any other issues that have come to light that should be taken into consideration (e.g. existing live warning on file)? 4. What level of misconduct is believed to have occurred (minor, serious or gross)? 5. If no disciplinary action is taken, how likely is it that there would be a repetition? 6. Is this a first offence? 7. Have similar circumstances occurred within the CCG previously and if so what action was taken then? 8. Were there any mitigating circumstances? 20