DISCIPLINARY POLICY. Final DRAFT. Approved By Board on:- Review Date:- Responsible Person:- Document reference:-

Transcription

1 DISCIPLINARY POLICY Final DRAFT Approved By Board on:- Review Date:- Responsible Person:- Document reference:-

2 BRADFORD & AIREDALE tprimary CARE TRUST DISCIPLINARY POLICY AND PROCEDURE This Policy has been prepared in consultation with the District Wide Policies Committee, which includes local staff side representatives 1) INTRODUCTION Bradford and Airedale tprimary Care Trust require good standards of discipline from its employees along with satisfactory standards of work. The Trusts disciplinary procedure applies to any misconduct or failure to meet the standards of performance or attendance. This procedure is designed to make it explicit to both managers and staff the manner in which matters of a disciplinary nature will be handled. The procedure reflects current accepted good practice including the ACAS Code of Disciplinary Practice and Procedures in Employment and is consistent with the standard dismissal and disciplinary procedures as set out in the Employment Act ) PURPOSE In order for the effective operation of the procedure it is important that its purpose is understood. The procedure is to be a corrective measure to promote improvement in individual conduct rather than a means of imposing sanctions for conduct which below the standard expected. The aim of the policy is to ensure consistent and fair treatment for all. The procedure will deal with disciplinary matters in a constructive way by (except for cases of gross misconduct) providing the member of staff with the opportunity and encouragement to improve their conduct. The procedure aims to achieve this through:- a) Except in cases of gross misconduct, providing the individual with a warning of the likely consequences of continual or further breaches in discipline b) Providing the individual with a clear statement of the reasons for any disciplinary action c) Providing help and support where appropriate to assist the individual to achieve acceptable levels of conduct d) Wherever possible dealing with minor breaches in discipline through an informal stage e) Following the principles of natural justice, i.e The individual will be informed of the nature of any accusation against him/her 2

3 The individual will be given the opportunity to state their case prior to any decision being taken regarding disciplinary action That those hearing the case will act in good faith in reaching their decision 3) SCOPE The procedure applies to all staff employed by the tpct including Medical and Dental Staff with regard to misconduct only. Where there are external or other provisions affecting the tpct employees (e.g. Nurses and Midwives and Health Visitors Act 1979, The Guidance on Medical and Dental Staff), these may be used for guidance when disciplinary action is taken. Patient Safety Incidents To assist in the assessment of the actions of staff involved in or reporting a patient safety incident the PCT will make every effort to discover the underlying causes of the incident and use the National Patient Safety Agency s (NPSA) incident decision tree to identify appropriate management action. 4) DISCIPLINARY RULES In the interest of good employee relations disciplinary rules giving appropriate examples have been drawn up for the guidance of management, staff organisation representatives, and all other members of staff. (See Appendix 1) It is emphasised that no set of rules can cover every circumstance, and the action taken by management in any particular situation will be dependent on the circumstances specific to that situation. 5) DELEGATION OF AUTHORITY TO DEAL WITH DISCIPLINARY MATTERS Status Quo will remain until the new structure has been agreed. Managers must seek the advice of Human Resources at all formal stages of the Disciplinary Procedure 6) COUNSELLING/INFORMAL STAGE Many unsatisfactory situations occur because of misunderstandings about the content of the job, because some employees take longer to learn than others, because employees do not realise the full importance of complying with particular parts of their terms and conditions or in some cases there may be problems facing the employee either at work or at home which could have a bearing on the situation. This informal stage is designed to provide an early opportunity to discuss minor problems and be the first attempt to help employees by offering advice and guidance without recourse to the formal disciplinary procedure. The purpose of the meeting will be to identify and discuss the areas of concern, ensure future 3

4 expectations are clearly understood and where appropriate to develop an action plan which may include addressing training needs or organisational defects. Action plans and expected standards should be written down and forwarded to the employee. The employee will be given two working days to respond to the action plan and seek further clarification, if needed, of the expected standards prior to implementation. There is no right to be accompanied at this informal/counselling stage, although the manager reserves the right to use judgement if they believe the matter to be of a nature that requires support. 7) RIGHT TO REPRESENTATION An employee must be informed in writing of his/her right to be represented at a disciplinary hearing. Where the employee wishes to be accompanied at the hearing this must be someone who is either:- - A recognised accredited trade union official of the tpct (this includes full time officers) unless otherwise agreed: or - a co-worker employed by the tpct and chosen by the employee If the employee is under age of 18, he or she may be accompanied by their parents or guardians if they wish. The employee must inform the tpct of the name of the person who will be representing them. If the person representing the employee is another member of staff they will be allowed appropriate paid time off to prepare for and attend the hearing. 8) EXCLUSION PENDING INVESTIGATION In order to create consistency for all staff, the term exclusion has been used to replace suspension, which can be confused with action taken by professional bodies to suspend a practitioner from a register pending a hearing of the case, or as an outcome of a fitness to practice hearing. Authority to exclude rests with Managers or Directors having delegated authority to deal with the procedure. As an alternative to exclusion, consideration may be given to the possibility of transferring the employee to another area of work whilst the investigation is being undertaken. In certain cases management reserves the right to immediately exclude an employee on full pay if the Manager believes that it is in the Trusts and employees best interest where absence from the workplace would be of value without disadvantage to the employee or Trust. It should be made clear to the employee, wherever possible in the presence of their trade union representative that exclusion 4

5 is not a disciplinary sanction, it does not imply any wrong doing nor a presumption regarding the outcome of any investigation, but a means of protecting all parties whilst facilitating a proper investigation for reasons of which the following are examples:- - gross misconduct - it would not be possible to carry out a full and proper investigation with the employee still present - to remove the opportunity for the employee to alter or tamper with the evidence relating to the incident - the employee is considered unfit for duty - there is a likelihood that if the employee continued to work further offences could occur Reasons for exclusion should be confirmed in writing within three working days. It is important that exclusions are regularly reviewed (every three weeks), to determine whether the exclusion should be continued and also to ensure that the employee is supported throughout the period of exclusion. The employee and their representative should be aware that the exclusion has been actively reviewed. See Appendix 1, for additional disciplinary rules for Medical and Dental Staff. See Appendix 2 for the additional disciplinary process for Medical and Dental staff. 9) INVESTIGATION Prior to any disciplinary action being taken a full and proper investigation into the circumstances and facts relating to the allegations must be undertaken. The Investigation should be undertaken without delay. In cases of potential fraud and corruption the investigation should be undertaken by the tpcts Local Counter Fraud Office. In cases that involve theft or violence the Local Security Management Services will be involved in the investigation 9.1 The investigatory Interview The investigation should be conducted by the appropriate manager who must be supported by a member of the HR department. They will thoroughly investigate all instances of alleged misconduct to establish the facts and to come to a view as to whether or not there is a case to answer. In all circumstances the manager investigating the allegations will not have had any prior involvement with the employee or the situation being investigated. Statements signed and dated from witnesses and documentary evidence will be collected promptly. Where as part of the investigation process, the employee requests representation in any meeting with management this may be granted. 5

6 10) FORMAL STAGES 10.1 Notice of Disciplinary Hearing If the decision is then to invoke the formal disciplinary procedure employees must be given 7 working days notice in writing of the date and purpose of the disciplinary hearing. Details of the allegations, their right to representation and any documentary evidence including statements from witnesses and notes of any investigative interview should be sent with the notice, to enable the employee to have the opportunity to state his or her case before a decision is reached. If the employee s representative is unavailable on the date chosen and the employee proposes a reasonable alternative date within 5 working days of the original date proposed, such a request must be approved by the manager concerned. In order to forward documents in good time to panel members, the employee must submit their written statement and any supporting documents 5 working days in advance of the disciplinary hearing unless he or she has already done so as part of the investigation Disciplinary Hearing At least two managers or one manager and one HR representative will be present to hear the case. No employee can be given any of the disciplinary sanctions without a formal hearing and the opportunity to state his/her case. Apart from gross misconduct or some other substantial reason (SOSR) for which warnings may not be appropriate and therefore warrants dismissal, no-one will be dismissed for a first breach of discipline. A disciplinary hearing can go ahead if the employee fails to attend, however, the following factors will need to be considered:- - Has the employee received sufficient notice of the hearing? - Did the employee receive written notification that the hearing may commence in their absence? - Does the employee suffer from any particular difficulties that may prevent them form attending? A doctor s certificate stating that the employee is unfit for work will not necessarily mean that they are unable to attend a hearing. Further medical advice should be sought at this stage which may include referral to occupational health. - Has the employee previously indicated that they will attend the hearing? - Are there any other mitigating circumstances to consider? It will be for the manager(s) present at the hearing, after listening to both cases and weighing up the evidence presented, to decide if disciplinary action is 6

7 warranted and if so at what level. The meeting will then be adjourned in order for a decision to be made. Further advice on how to conduct the hearing can be sought from the Human Resource Department. 11) DISCIPLINARY ACTION The point at which the procedure is entered and the sanction applied will depend entirely on the seriousness of the offence. The selection of the sanctions appropriate for each breach of discipline is a matter of judgement for managers at the hearing, having regard to: - The seriousness of the disciplinary breach in question - The circumstances or features of the particular case - The employee s current record - Consideration of fairness, justice and consistency - The requirements of the Employment Rights Act 1996, that the employer acts reasonably, having regard to equity and the substantial merits of the case 11.1 Stage 1 Oral Warning An oral warning remains current for 6 months and is then disregarded and removed from the file subject to satisfactory conduct, attitude and performance and the employee informed accordingly Stage 2 Written Warning A written Warning remains current for 12 months and is then disregarded subject to satisfactory conduct, attitude and performance and the employee informed accordingly Stage 3 Final Written Warning A final written warning remains current for 12 months and is then disregarded subject to satisfactory conduct, attitude and performance. In cases of misconduct it should be made clear to the employee that any further incidence of misconduct, could lead to dismissal during the 12 months period, dependent on the circumstances of the case. An employee may request that a written statement in mitigation be included in his/her personnel file Stage 4a Actions Short of Dismissal 7

8 There may be exceptionally be cases where management take the view that the organisational and employee circumstances may best be served by action short of dismissal itself. In these circumstances, one of or a combination of the following sanctions may be considered as an alternative to dismissal. These sanctions will normally be applied on a permanent basis in conjunction with a final written warning:- - Disciplinary transfer - Loss of increment(s) - Demotion 11.5 Stage 4b Dismissal Employees dismissed on the grounds of misconduct will receive the appropriate period of notice except in cases of summary dismissal for gross misconduct, where no notice is payable Withdrawal of Action Should any disciplinary action be reconsidered and effectively withdrawn at any stage of the procedure, any written reference to it will be removed from the employee s record and the employee notified accordingly Details of Warnings Details of Warnings and other actions short of dismissal shall be maintained on the employee s personnel file for the life of the sanction but will then be removed from the file and destroyed. In all the above stages the precise date that the warning is removed should be clearly stated on the personnel file. If an employee is absent from work for 2 weeks or more except for annual leave, then the warning will be suspended for that period and be resumed on their return to the workplace. 12) RIGHT OF APPEAL An employee aggrieved by disciplinary action including dismissal, has the right of appeal as follows: Oral, written warning, final written warnings and actions short of dismissal shall be to the next higher level of management above the level that made the disciplinary action. There is no further right of appeal beyond this level. The appeal should be 8

9 made in writing within 10 working days of the date of the hearing. The employee should state in writing the grounds for appeal. Every effort will be made to hear the appeal within 10 days. Any amendments to timescales will be made by mutual agreement. Dismissal: to a panel consisting of :- - A Director (acting as Chair) - An HR representative - An accredited Trade Union Representative The appeal should be made to the individual with corporate responsibility for HR. If that person has been previously involved then the appeal should be made to the Chief Executive or Chair not previously involved within 10 working days of the disciplinary hearing. Every effort will be made to hear the appeal within 10 days. Where an employee has been dismissed by the Chief Executive or tpct Chair, the appeal will be made directly to the tpct Board. 13) ROLE OF THE HR DEPARTMENT The function of the HR Department as far as disciplinary action is concerned is to ensure that the agreed procedure is operated properly and fairly throughout the tpct, and to ensure that decisions taken do not knowingly place the tpct in legal jeopardy under current legislation. It also seeks to make certain that high standards of acceptable employment practices are maintained. 14) POLICY REVIEW This policy will be reviewed at appropriate intervals and no more than 2 years or as legislation dictates. 9

10 APPENDIX 1 Disciplinary Rules In the interests of good employee relations practice, the following disciplinary rules, giving appropriate examples have been drawn up for the guidance of management, staff organisation representatives and all other members of staff. It is emphasised that no set of rules can cover every circumstance, and the action taken by management in any particular situation must take into account the particular circumstances relevant to any particular situation. A. Breaches of the following disciplinary rules would deem to constitute minor misconduct:- 1. Attendance at work smelling of drink, by employees who deal with the public and who work in situations where the smell of alcohol may cause offence, or perhaps more importantly undermine public confidence in that particular employee. 2. Failure to achieve or maintain standards of attendance/timekeeping. 3. Abuse of concessionary breaks e.g. extending breaks or returning late without permission to do so. 4. Minor deliberate acts of carelessness and/or negligence, which do not cause undue risk to health and safety. 5. Behaviour at work, or whilst on NHS premises likely to cause offence to fellow employees and others or likely to cause nuisance and create disharmony. 6. Minor irresponsible conduct (e.g horseplay or practical jokes that distract staff from the needs of the service. First offences of the above would not normally warrant more than a first written warning B. Breaches of the following disciplinary rules would deem to constitute Serious misconduct:- 1 Serious breach of work place Health and Safety rules. 2 Breaches of the Smoking Policy. 3 Failure to report any accident or incident at work or occurring on NHS property premises, which did (or might have) cause injury or illness to self or others. 10

11 4. Serious acts of negligence, resulting in injury or detriment (all employees have a Common Law duty to the employer to exercise reasonable skill and care in the performance of their work) 5. Refusal to comply with a reasonable and lawful instruction or lack of respect for a colleague (eg swearing, the offer of abuse and insult or ridicule etc) 6. Misappropriation of property of employer, patient or any other person whilst on duty or on NHS premises. Misappropriation is the borrowing or unauthorised taking away without permission of the owner but without the intention of permanently depriving the owner of use. 7. Unauthorised absence and/or persistent lateness. 8. Refusal to comply with a term or condition of the contract of employment where this is not superceded by a Trust Policy. 9. Sleeping whilst on duty. 10. Breach of rules contained in Notice to Drivers including the carriage of unauthorised passengers or goods. 11. Failure to observe and comply with the requirements and conditions of the appropriate sick pay/sick leave scheme. A fraudulent breach will be classed as gross misconduct 12 Behaviour at work or whilst on NHS Premises, likely to cause serious nuisance, offence or create serious disharmony (ie the wearing or display of offensive items or articles) 13. Failure to observe proper and appropriate standards of appearance and dress in accordance with the Dress Code Policy C Breaches of the following disciplinary rules would deem to constitute Gross misconduct 1 Fighting or the offer of violence/threat of violence during the course of employment or whilst on NHS premises. Violence may be threatened to person or property without a physical fight actually taking place. It may not be appropriate to approach threatening behaviour or conduct through the Harassment policy. 2 Gross negligence; Any action or any failure to act which seriously threatens the health, safety, or welfare of a patient, visitor or member of staff (including being on duty under the influence of alcohol, illegal drugs, or some other substances) 11

12 3 The deliberate and persistent refusal to carry out a proper and lawful instruction given in a reasonable manner, or lack of respect for a colleague, eg persistent and wilful use of obscene and or offensive language etc. 4 Fraud; Any attempt to deliberately defraud the tpct, a patient, a visitor or a member of staff. This includes any interference with, or misuse of time recording devices or systems resulting in misrepresentation of hours worked, or the recording of work undertaken, in addition to the deliberate falsification of travel and other claims. 5 Dishonest declarations on application forms, or at interview, and on medical questionnaires. Any false or dishonest information given in specific relation to previous criminal offences. 6 Persistent and wilful refusal to comply with a significant term and condition of employment. 7 Unauthorised absence and or persistent lateness. 8 Disclosure of confidential information relating to patients, employees, or other Trust information designated as confidential. 9 Sexual misconduct outside of employment which adversely affects the employment relationship and/or which affects the suitability of the employee for continued employment eg being charged/convicted with possessing / circulating internet pornography or sexual assault. 10 Intentionally accessing, transmitting, holding, or archiving on any Trust systems, any material from the internet that is classed as illegal. This includes pornography and any material that may be considered racially prejudiced or sexually explicit. 11 Actions or language of a discriminatory nature that infringes upon equality and diversity. D Medical and Dental Staff Patients must be able to trust doctors and dentists with their lives and well-being. To justify that trust, as a doctor or dentist there is a duty to maintain a good standard of practice and care and to show respect for human life. In addition to adhering to the above rules, breaches of the following rules would invoke the disciplinary process. A doctor/dentist must:- 1 Make the care of patients priority 2 Treat every patient politely and considerately 12

13 3 Respect patient s dignity and privacy 4 Listen to patients and respect their views 5 Give patients information in a way they can understand 6 Respect the rights of patients to be fully involved in decisions about their care 7 Keep professional knowledge and skills up to date 8 Recognise the limits of their professional competence 9 Be honest and trustworthy 10 Respect and protect confidential information 11 Make sure personal beliefs do not prejudice patient care 12 Act quickly to protect patients from risk if there is good reason to believe that the doctor him/herself or a colleague may not be fit to practise 13 Avoid abusing their position as a doctor 14 Work with colleagues in the ways that best serves the patients interest. In all matters a doctor or dentist must never discriminate unfairly against a patient or colleague. A doctor or dentist must always be prepared to justify their actions to them. 13

14 APPENDIX 2 ADDITIONAL DISCIPLINARY PROCESS FOR MEDICAL AND DENTAL STAFF The disciplinary framework for doctors and dentists, Maintaining High Professional Standards in the Modern NHS, was agreed by the Department of Health, the British Medical Association and the British Dental Association in February 2005 and published together with a Secretary of State Direction later that month (Directions on Disciplinary Procedures 2005) which requires NHS Trusts to incorporate the framework into their local procedures. The procedure replaced the disciplinary procedures contained in circular HC(90)9, as well as the Special Professional Panels ('the three wise men") provided for in HC(82)13 and abolished the right of appeal to the Secretary of State held by certain practitioners under Paragraph 190 of the Terms and Conditions of Service. Wherever possible any issues related to conduct, competence and behaviour will be identified and resolved without recourse to formal procedures. However, should the Trust consider that conduct or behaviour may be in breach of the Bradford and Airedale tprimary Care Trust Disciplinary Rules and Procedures, or that professional competence has been called into question, The Trust will resolve the matter through its disciplinary or Performance Improvement procedure. In addition to the procedures expressed in the main document the following processes will be incorporated and adhered to:- 1 RIGHT TO REPRESENTATION See paragraph 7: This would include representatives of the British Medical Association (BMA), British Dental Association (BDA) or National Clinical Assessment Authority (NCAA). 2 DELEGATION OF AUTHORITY TO DEAL WITH DISCIPLINARY MATTERS See paragraph 5. All serious concerns must be brought to the attention of the Chief Executive and he or she must ensure that a case manager is appointed. 3 EXCLUSION PENDING INVESTIGATION An immediate time limited exclusion may be necessary for the purposes as outlined in paragraph 8 of this procedure. The Chief Executive has the overall responsibility for managing exclusion procedures and for ensuring that cases are properly managed. Detailed guidelines on immediate and formal exclusion are contained within the Maintaining High Professional Standards in the Modern NHS handbook which can be accessed via the HR Department or Medical Directorate. It is important that exclusions are regularly reviewed, no more than 4 weeks before a formal review. 14

15 APPENDIX 2 4 ALTERNATIVE TO EXCLUSION PENDING INVESTIGATION - Medical or clinical director supervision of normal contractual duties - Restricting the practitioner to certain forms of clinical duties - Restricting activities to administrative, research/audit, teaching and other educational duties. 5 INVESTIGATION See paragraph 9. The case manager, in considering whether the matter can be dealt with informally or formally, should liaise with the NCCA and the Head of HR or designated person. 6 DISCIPLINARY HEARING See 10.2; in addition, where a case involving issues of professional conduct proceeds to a hearing the panel must include a member who is medically/dentally qualified and who is not currently employed by the Trust. At any stage of the handling of a case consideration should be given to the involvement of the NCAA. 15