PROCEDURE Police Staff Discipline. Number: C 0901 Date Published: 9 May 2013

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1 1.0 Summary of Changes Amendments to the 1 st bullet point of section 4.5 and the 3 rd, 4 th, 6 th and 7 th bullet point in section 4.8 have been made. Section 4.9 has been removed as the content is now incorporated into section 4.8. In section 4.5 a paragraph has been added regarding meetings and hearing to be recorded electronically. 2.0 About this Procedure The procedure details the process that needs to be taken when a breach of the disciplinary rules has occurred, that cannot be dealt with as a normal day to day matter for line management. The Line Manager does have discretion to deal with a minor breach of discipline by the informal process, making use of the e-pdr facility to seek improvement, ensuring that reasonable proportionate action is taken as necessary. More serious problems caused by sickness absence and unsatisfactory work performance not attributed to misconduct are dealt with under a separate capability procedure. In some cases it may be difficult to separate misconduct and incapacity and advice from your HR Business Teams, should be sought. The procedure takes account of the ACAS Code of Practice 2009 on Disciplinary Practice and Procedures in Employment. It also takes account of the concept of natural justice which means: The employer and employee should act consistently: Issues should be dealt with promptly and meetings, decisions and confirmation of the decisions should not be unreasonably delayed; The employer should carry out any necessary investigations, to establish the facts of the case; The employee must be informed of the basis of the problem to provide them with an opportunity to put their case in response before any decisions are made; The employer should allow employees to be accompanied at any formal disciplinary meeting; The employer should allow an employee to appeal against any decision to impose a formal disciplinary sanction or dismissal. Every reasonable effort will be made to provide support for all parties involved in a disciplinary hearing including regular contact to ensure they are kept informed of progress. Staff will not be dismissed for an initial breach of discipline, except in cases of gross misconduct where a lesser penalty would be inappropriate. Page 1 of 12

2 Any investigation to ascertain the facts of the case will be based on balance of probabilities rather than beyond all reasonable doubt. The ACAS Code of Practice describes this as there is a reasonably held belief that the employee committed the act in question. During any investigation, line managers should ensure the continual welfare of all parties concerned by regular communication and supportive action including referral to occupational health and welfare services where necessary. For the purpose of this document the term working days will refer to Monday-Friday in all cases including where police staff work a shift pattern outside these days. Where the matter being considered arises from a complaint by a member of the public, reference should be made to C 3001 Procedure Dealing with Complaints against the Police. 2.1 Trades Union Representatives: Disciplinary action against a Trade Union Official, can lead to a serious dispute if it is seen as an attack on the Union s function. No disciplinary action will be taken against any employee in respect of alleged misconduct arising from their duty as a trade union official. Where disciplinary action is considered against a recognised shop steward or other accredited trade union official, the Deputy Head of HR or Head of HR must be informed immediately and no action should be taken unless the circumstances have been discussed with a full-time official of the Trade Union concerned. 3.0 Risk Assessments/Health and Safety Considerations Under the Disability Discrimination Act, we have a duty to make reasonable adjustments and Essex Police will endeavour to make adjustments to these processes as applicable. For example, we could provide material in appropriate/alternative formats, hold meetings in accessible venues, allow additional time for reading material if a person is dyslexic, etc. 4.0 Procedure Appendix A provides examples of behaviour which may result in disciplinary action, short of dismissal. Appendix B provides examples of behaviour which may result in dismissal or summary dismissal according to circumstances. Page 2 of 12

3 An allegation made against a member of police staff can arise following: A complaint by a member of the public; or Following a disclosure by another member of the organisation; or Following behaviour witnessed by another member of the organisation. 4.1 Public Complaints Where allegation arises from a public complaint the circumstances will be reviewed by the Professional Standards Department and a decision made as to whether they amount to allegation of: Misconduct; Gross Misconduct; or Are related to performance or capability. Where the circumstances of the complaint are considered to be a complaint, then it should be dealt with in accordance with current Essex Police procedure and contact should be made with the Professional Standards Department. 4.2 Disclosure other than by way of Complaint Where a disciplinary matter is identified by any other means then the matter should be referred to the individuals line manager at the earliest opportunity. The line manager should make an assessment of the circumstances and decide whether the allegation amounts to a matter of: Misconduct; Gross Misconduct. Advice can be sought from HR Business Partners where the circumstances are particularly complex or unclear. Matters considered to be Gross Misconduct will be referred to the Professional Standards Department for investigation. Matters considered as misconduct will be notified to the Professional Standards Department but will be retained by the line manager and investigated in accordance with the disciplinary process. 4.3 Disciplinary Process There are two stages to the disciplinary process; informal action suitable for misconduct matters only and formal action. There is no requirement to have completed informal action in response to every allegation particularly where the line manager considers it not to be a reasonable response. Line Mangers will be required to have at least considered informal action in the first instance for misconduct matters. Page 3 of 12

4 4.3.1 Informal Action The day-to-day supervision of staff is part of the normal management process and is considered to be outside the formal procedure for dealing with breaches of discipline. Any complaint received by a supervisor regarding an employee s conduct should be dealt with at the earliest opportunity. If appropriate, supervisors can use informal action to inform the employee about the deficiencies in their conduct, alleviating the need for more formal procedure. At this point they may also wish to use the e-pdr system to record any improvement that maybe needed, so that progress can be evidenced and reviewed. Advice, training and counselling should be considered and provided where appropriate before formal disciplinary procedure for misconduct is started Counselling A counselling interview should be initiated by the Line Manager and conducted in private between the Line Manager and the employee. It should be a two-way discussion with the emphasis on finding ways in which the employee or supervisor can remedy shortcomings. The discussion should be summarised in the form of a letter which should be sent to the employee and a copy retained by the Manager for a period of 6 months. This should not be kept on the employee s personal file or logged onto ORIGIN as it does not amount to formal action. The Line Manager should consider using the e-pdr system the need for improvement to ensure it is recorded and reviewed as part of normal day to day management. The Line Manager must clearly point out to all parties concerned that a counselling interview is outside the formal disciplinary procedure. They must ensure throughout the process that the counselling interview does not turn into a formal disciplinary interview as this would deny the employee certain rights. If during the discussion it appears that the matter is more serious than originally thought, then the counselling interview should be terminated and the employee informed that the matter will be handled under the formal disciplinary procedure. A written record of this should be made and retained within the subsequent discipline file. 4.4 Formal Action Misconduct Where the matter amounts to an allegation of misconduct an investigation should be conducted by the line manager or person allocated to undertake the investigation (with advice from the local HR team), to ascertain and document the relevant facts. This should be collated as a file, detailing actions taken and timescales etc. Page 4 of 12

5 The employee should be informed at the earliest opportunity of the decision to commence the investigation including the following: A brief outline of the nature of the allegation made against them including the time, date and location where the misconduct is alleged to have occurred; Their right to be accompanied by a colleague or Trade Union Member; That the allegation does mean that disciplinary proceedings have been commenced against them. The line manger should therefore ensure that form A500a (Notice of Report, Allegation or Complaint against a member of the Police Staff) is completed and a copy handed personally to the employee. A proportionate investigation should be undertaken without unreasonable delay to establish the facts surrounding the allegation. This may include interviewing anyone who witnessed the events at the centre of the allegation and formally documenting their account. Any account from a witness should be documented on a voluntary basis and must be signed and dated. They should be informed that they may be called as a witness and questioned on the content of their statement at any discipline meeting or hearing. Police officers or members of staff appointed to investigate such matters must keep in mind that these are disciplinary matters and as such are not conducted in the same manner as a criminal investigation. For example, interviews are not tape recorded unless by mutual agreement for administration purposes. Where it is necessary to interview the employee as part of the investigation the Line Manager or Investigating Officer (with advice sought from HR), should inform the employee of the following: Time, date and location of the interview at least 48 hours in advance; The employees right to be accompanied by a colleague or Trade Union Representative; Appropriate evidence relevant to the investigation process. If the employee admits the alleged misconduct, then the investigation will be less detailed but it will still be necessary to gather all the relevant information for the Designated Officer to decide on appropriate course of action. Once the investigation is complete the Line Manager must present a summary of findings to the Command or Departmental Head, who must decide whether or not there is a potential breach of discipline at misconduct level. At this point there is still the discretion to decide if the matter should be dealt with at a hearing, or whether the matter can be dealt with informally by the Line Manager using the e-pdr to document any improvement that may be needed. Page 5 of 12

6 Where the circumstances amount to a breach of discipline, the Command or Departmental Head, via the HR Advisor, will arrange for a discipline hearing to be held. Formal written notification of the time, date and place of the hearing will be provided to the employee with at least 10 working days notice, together with a copy of evidence to be presented. Any relevant witness should be notified they are required to attend to answer questions regarding the content of their statement. Where it is considered there is no breach of discipline written confirmation should be sent to the employee informing them of the decision and that the matter is now considered to be closed. Any documentation should be retained in accordance with the timescales set out in G 0303 Records Retention Disposal Schedule. The Professional Standards Department will be informed of the outcome of the investigation and any misconduct hearing. Records relating to disciplinary hearing matters should then be kept on the individual s personal file in accordance with timescales detailed in this procedure, unless there is no case to answer in which case the papers are destroyed Gross Misconduct Where the nature of the allegation potentially amounts to Gross Misconduct the matter will be referred to Professional Standards Department for investigation. An Investigating Officer will be appointed to conduct an investigation in accordance with this procedure and ACAS Guide on Discipline and Grievances at Work. The employee should be informed at the earliest opportunity of the decision to commence the investigation including the following: A brief outline of the nature of the allegation made against them including the time, date and location where the misconduct is alleged to have occurred; Their right to be accompanied by a colleague or Trade Union Member; That the allegation does mean that disciplinary proceedings have been commenced against them. The Line Manager or Investigating Officer should ensure that form A500a is completed and copy handed personally to the employee. The investigation should be undertaken without unreasonable delay to establish the facts surrounding the allegation and should be proportionate to the matter under investigation. This may include interviewing anyone who witnessed the events at the centre of the allegation and formally documenting their account. Any account from a witness should be documented on a voluntary basis and must be signed and dated. They should be informed they may be required as witness to answer questions in relation to their statement at a discipline meeting or hearing. Page 6 of 12

7 The employee should be provided with an opportunity to provide their account during a formal interview. As part of the investigation, the Line Manager or Investigating Officer should inform the employee of the following: Time, date and location of the interview at least 48 hours in advance; The employees right to be accompanied by a colleague or Trade Union Representative; Appropriate evidence relevant to assisting in the investigation process. Once the investigation is complete the Investigating Officer will present a summary of the findings to the Head of Professional Standards for quality assurance purposes. The matter will then be immediately referred to Deputy Head of HR, who will discuss the findings with the Deputy Chief Constable who will: Decide whether there is a prima facie case to answer; Arrange for the employee to be notified of the nature of the charge; Arrange for case papers to be distributed to all parties, in accordance with the timescales; Arrange to hold a Formal Disciplinary Hearing; Ensuring that witnesses are available to attend the hearing Precautionary Suspension The Head of Professional Standards Department (PSD) is the Designated Officer and will make the decision whether or not to suspend an employee. Suspension is not a form of disciplinary action. Individuals will be suspended from duty on full pay (i.e., that pay they would have earned had they been on duty) in one or more of the following circumstances: (i) When the alleged behaviour of the employee is such that he or she is a danger to themselves or others; (ii) When the presence of the employee in the workplace may significantly impede or hinder the discipline investigation; (iii) When the alleged behaviour of the employee is of such a serious nature that their continued presence in the workplace could cause Essex Police significant harm. The employee will be provided with written confirmation of the reasons for suspension at the earliest opportunity. The period of suspension should be as brief as possible and should be reviewed monthly by the Head of Professional Standards. The employee must be informed in writing of the outcome of any review of suspension at the earliest opportunity. Page 7 of 12

8 4.4.4 Criminal Investigations Where criminal allegations are being investigated a separate criminal investigation is to be conducted in accordance with PACE and must be considered outside the formal disciplinary procedure. In normal circumstances this should not prevent the application of these procedures or prevent the investigating officer from conducting a thorough investigation. Separate disciplinary investigations under this disciplinary procedure may be carried out. See Appendix D for the disciplinary implications of criminal allegation. 4.5 Disciplinary Hearing If there is a case to be answered, a Designated Officer will hear the case. The Designated Officer will be either an ACC or Police Staff equivalent in respect of gross misconduct matter or an LPA Commander or Departmental Head in respect of misconduct matters. In order to ensure impartiality, it is important that no officer involved in conducting the investigation, is involved in making any decision at a disciplinary hearing. A Presenting Officer, who may have conducted the investigation, will present the case at the hearing. An HR Adviser will be present at the hearing to advise on procedure and employment law. The employee will be given at least ten working days notice in writing, of the date, time and place of any Disciplinary Hearing. This notice will include: The nature and details of the alleged misconduct; The right to be accompanied at the hearing by a representative of a Trade Union recognised by Essex Police, or a fellow employee of Essex Police. There is no right to have a legal representative present; The right to call witnesses and submit written statements - witness statements should be signed and dated (a failure to sign statements should not delay disciplinary proceedings); The name of any witnesses that will be available at the hearing; The name and status of the Designated Officer and accompanying officer; Copies of any documentation which is to be considered at the Hearing; A copy of this Disciplinary Procedure. Not later than five working days before the hearing the employee: Will supply the name and status of any representative and details of any witnesses to be called to the Designated Officer; May submit a written statement, either direct or through a representative. By mutual consent the time limits referred to may be modified. Page 8 of 12

9 Witnesses may be called by either party; the number of witnesses called should be limited to that necessary for a fair hearing of the case. The Designated Officer, with advice from HR, will arbitrate if necessary. It is the responsibility of the parties concerned to arrange for the attendance of their witnesses. Where either party wishes to challenge a witness statement, the witness should be required to attend the hearing, giving the opportunity for cross examination. In gross misconduct hearings or where dismissal is a potential sanction, it is expected that witnesses will attend, however, in cases of alleged bullying and harassment due regard should be given to suitable care of the witness. In extreme cases it maybe considered appropriate to rely on the witness statement provided rather than request the witness to attend in person. In the main witnesses should attend if they have made statements that can be used at a discipline hearing. Where the employee fails to attend the hearing as arranged, the hearing will be reconvened for a later date. A second failure to attend may result in the case being heard in the employee s absence. Due regard should be taken of the statutory right for an employee to be accompanied to a discipline hearing by a colleague or union representative. The hearing can be adjourned by the Designated Officer if it is necessary or desirable to do so, for example gathering further information, or due to a reasonable request from either party to do so. The employee will be informed of the period of adjournment. If further information is gathered, the employee will be given reasonable time with their representative, to consider the new information prior to the reconvening of the hearing. Essex Police reserves the right for any meetings/hearings to be recorded electronically for the purpose of having a record of the matters discussed. A copy of the recording can be made available on CD if so requested. On an exceptional basis, a transcript of a passage, or short portion, that was identified as problematic can be made available. The procedures to be adopted at the disciplinary hearing will be that indicated in Appendix E. 4.6 Determining Disciplinary Action The sanctions a Designated Officer has at their disposal at a hearing are as follows, and depend on whether the case is misconduct or gross misconduct Case Unfounded: If the Designated Officer considers that the case against the employee is unfounded they will inform the employee at the hearing and confirm this in writing. All references to the matter will be removed from the employee s file. Page 9 of 12

10 4.6.2 Written Warning: If the misconduct is confirmed, the employee will be given a written warning setting out the nature of the complaint and outlining the possibility of dismissal if employee fails to improve, or commits a further act of misconduct within 12 months. A copy of the warning will be placed on their personal file, together with a record of the Disciplinary Hearing Final Written Warning: In the event of further misconduct following a written warning, a final warning may be issued. If the facts of the case are so serious, the final written warning could include that a further breach of conduct within 18 months may lead to dismissal. A copy will be placed on the employee s personal file, together with details of the hearing Dismissal with Notice: Where previous warnings issued in accordance with this procedure have been ineffective, an employee may be dismissed. Such a dismissal will normally be with notice, or pay in lieu of notice, in accordance with contractual or legal requirements. In these cases, a Chief Officer with delegated authority to dismiss will need to hear the case Summary Dismissal (dismissal without notice) - Essex Police will, in general follow the recommendations of the ACAS Code of Practice that an employee shall not be dismissed for a first offence, except in cases of gross misconduct. In cases of gross misconduct summary dismissal without notice or pay in lieu of notice may be appropriate after a disciplinary hearing has been held Transfer Either on its own or in conjunction with a written warning. This would be to a similar level post within Essex Police Relegation - This constitutes downgrading the employee and may be administered only as an alternative to dismissal where there are mitigating circumstances. The employee may be placed in a different work area, undertaking different duties, and may be issued with a first and final written warning. The rate of pay would be that applicable to the lower graded job. If the employee does not accept the decision to relegate, they will be dismissed. 4.7 Time Limits for Disciplinary Warnings Disciplinary warnings will expire after the following periods provided that any necessary improvements in conduct have occurred and there has been no similar or other misconduct during the period: Written warning: Final written warning: 12 months 18 months When the warning has expired all reference will be removed from the employee s personal file and the employee notified in writing that this has occurred. Page 10 of 12

11 If there is further misconduct during the period or insufficient improvement has been made, a hearing maybe reconvened to consider any additional disciplinary action in accordance with this procedure. There may be certain exceptional circumstances where the discipline matter relates to a criminal offence and the nature of the offence and of the post concerned do not make it desirable and practicable for the time limit to apply. If this is so, the employee will be notified in writing when the warning is given. Records will also not be available for bad character evidence relating to warnings given for any subsequent criminal investigations, once the time limits have expired as above and as per the ACAS Code of Practice. 4.8 Appeals All employees have the right to appeal against formal disciplinary action. They have the right to be represented by an official of a Trade Union recognised by Essex Police or accompanied by a fellow employee. Formal written notice of appeal, setting out the grounds upon which the appeal is based, must be forwarded to the Head of Human Resources Department within 10 working days of receiving their notification of the sanction in writing Appeals for misconduct will be heard by Chief Superintendent or Head of Department or ACC or Police Staff equivalent depending upon the Designated Officer presiding at the original hearing. Appeals for gross misconduct, including where dismissal was the sanction imposed will be Chaired by either the Deputy Chief Constable or the Chief Constable. The Chair of the appeal must not have been involved in any previous hearing and will make decisions having due regard to the following: Whether discipline was adequately investigated; Whether the prescribed procedures were correctly and fairly implemented; Whether the disciplinary action was reasonable in the circumstances known to management at the time. The employee should be given 5 working days notice of the date of the appeal hearing. Having considered the appeal the Chair may: Dismiss the appeal and endorse the disciplinary action taken; Uphold the appeal in relation to the original finding and sanction. This will include the removal of any disciplinary record relating to the original finding and reinstatement of the employee if dismissed; Uphold the appeal in relation to sanction only and impose a reduced sanction. Page 11 of 12

12 If new evidence is introduced during an appeal it may be referred back to the Designated Officer to enable them to reconsider whether the disciplinary action was reasonable in the light such new evidence. Subsequently, if the employee still wishes to appeal against either, the original decision or any further decision based on the new evidence the appeal hearing will be reconvened. The appeal hearing should be held without undue delay and the decision will be final. The method of applying for an appeal hearing is set out in Appendix F. The procedure to be followed at an appeal hearing is set out in Appendix G. 5.0 Monitoring and Review This procedure will be reviewed by or on behalf of the Head of Human Resources within 2 years of the date of publication to ensure it remains up to date with current legislation and fit for purpose. 6.0 Related Procedures None 7.0 Related Policies None 8.0 Information Sources None Page 12 of 12

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