Surrey County Council Disciplinary Policy December 2009

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1 APPENDIX 2 Disciplinary Policy - v Introduction People who choose to become Local Government Employees, as public servants must abide by the highest standards in respect of conduct and behaviour. Normally discipline is effectively maintained by example, advice, training, informal counselling, and through observance of proper standards of conduct and policies of Surrey County Council. It is expected that this situation will continue, but it is nevertheless recognised that in the interests of the conduct of the council s affairs and for the safety and welfare of employees, discipline may occasionally need to be reinforced by the application of the formal aspects of the procedure. All new employees need to have a thorough induction so they are aware at the outset of the council s Code of Conduct, and of the expected standards of behaviour in their service area. The following procedure has been devised to ensure the fair treatment of employees who become liable for disciplinary action. This policy forms part of the conditions of service for Surrey County Council employees, and supersedes all previous disciplinary policies and procedures. 2. Application Although in principle this scheme applies to all employees of Surrey County Council, it will not apply to employees in the following situations: Teachers and support staff employed in schools and fire fighters who have separate arrangements. Special arrangements may also need to apply to disciplinary investigations involving Chief Executive, Directors, Head of Service, section 151 and monitoring officers. Advice should be sought from the Head of HR&OD in these circumstances Where there is incapability or other poor performance at work which is considered not to be attributable to a disinclination by the employee to carry out his or her duties efficiently, but which is thought to be attributable to a lack of skill or aptitude, or to health or any other physical or mental quality. In these circumstances the Council s Capability policy should be used. 3. Principles The full principles that underpin the disciplinary procedure are outlined in the Council s Employment Policy Framework and the ACAS Code of practice for Discipline and Grievance. No disciplinary action will be taken against an employee until the case has been investigated and facts established. The employee will be advised of the nature of the complaint against him or her and will be given the opportunity to state his or her case before any decision is made. The employee will have the right to be accompanied by a trade union representative, employee representative or work colleague not acting in a legal capacity during the disciplinary hearing. 1

2 No employee will be dismissed for a first breach of discipline except in the case of gross misconduct when the penalty may be dismissal without notice or payment in lieu of notice. An employee will have the right of appeal against any disciplinary penalty imposed. The procedure may be implemented at any stage if the employee s alleged misconduct warrants such action. An employee will not necessarily be dismissed because of his conviction for a criminal offence. The employee s position will be considered on its merits. Acquittal of a criminal charge will not in itself preclude disciplinary action, where such action would otherwise be appropriate. Where formal disciplinary action against an accredited trade union official is being considered, HR will be informed and, with the agreement of the employee, a full-time official of the trade union concerned will be notified To be an effective process managers and employees will avoid unnecessary delays and seek to conclude a case within a reasonable timescale The conduct of investigations will be proportionate and will not involve excessive cost. A reasonable decision will be reached on the basis of evidence available at the time. 4. Grievance raised by employee during a Disciplinary procedure. Where an employee raises a grievance during a disciplinary process which is related to the issues raised in the disciplinary then the employee may either raise their concerns as mitigation in their defence or the concerns may be considered concurrently as part of a multipurpose hearing. Where the concerns raised in the grievance are completely separate then depending on the seriousness of the grievance raised, the disciplinary proceedings may be suspended while the grievance is dealt with. In other cases the disciplinary may proceed as planned. 5. Disciplinary rules It is not possible in this document to define all acts of misconduct that could lead to disciplinary action. Generally, the test of reasonableness in the circumstances will apply before any disciplinary action is taken, bearing in mind the high standards expected of public servants. Would a reasonable person be aware that disciplinary action would result from a certain action or omission? Disciplinary action will be most certainly recommended against employees for: Breach of the council s Code of Conduct and the council s policies and procedures. Unauthorised action on behalf of the council or service including inappropriate use of IT systems and breaches of IT security Public criticism of the council s decisions and/or activities connected with the employee s own work 2

3 Failure to follow a reasonable instruction including failure to observe the operational regulations or standing orders of the service. Failure to follow arrangements for absence reporting or unauthorised absence and persistent poor timekeeping Abuse of public trust i.e. engaging in unauthorised employment during hours contracted to work for the council, or engaging in employment during off-duty hours, which is detrimental to the interests of the authority or brings it into disrepute Misconduct in relation to official documents i.e. when an employee without sufficient cause destroys or mutilates any record or document made, kept or required for the purposes of the council, or alters, erases or adds to any entry in such a record or document. Breaching political restrictions and lobbying or canvassing members on their own behalf Improper disclosure of information, breaches of confidentiality or breach of data protection regulations Sleeping on duty Unauthorised use of the council s equipment Acts of bullying, harassment or discriminatory behaviour against a member of staff or the public on the grounds of gender, marital status, race, ethnic origin, religion, sexual orientation, gender reassignment. Not adhering to the council s values and standards of behaviour for example through the use of inappropriate language or abusive behaviour Actions or omissions inside or outside work which bring the council s reputation into disrepute or seriously affects public confidence in it s ability to deliver effective services This list is not to be regarded as exhaustive and serious examples may constitute gross misconduct. Gross misconduct The following list provides examples of offences which could be regarded as gross misconduct and result in summary dismissal: Dishonesty, theft, fraud, deliberate falsification of records Failure or being complicit in failure to follow the proper safeguarding or safer recruitment procedures designed to protect children ad vulnerable adults Sexual misconduct at work including the downloading or displaying of pornographic images Sexual offences outside work including downloading illegal pornography Emotional, financial, sexual or physical abuse of children, vulnerable adults or service users Fighting, threatening behaviour or physical assault on another person Serious incapability through alcohol or being under the influence of illegal drugs Gross incapability or serious negligence which causes unacceptable loss, damage or injury Malicious damage to property Serious act of insubordination Unauthorised entry to computer or manual records or disclosing confidential information to the media or a third party in breach of whistle blowing arrangements Serious bullying, harassment or discriminatory behaviour against a member of staff or the public on the grounds of gender, marital status, race, ethnic origin, religion, sexual orientation, gender reassignment. 3

4 Deliberate breach of health and safety regulations This list is not to be regarded as exhaustive. 6.Safeguarding allegations, referrals to a professional body or Independent Safeguarding Authority In cases involving serious allegations against an employee who works in a position of trust with children or vulnerable adults the relevant safeguarding team should be informed immediately and a strategy meeting set up. The purpose of this meeting will be to consider: What type of investigation is needed and who is responsible for it When and how information may be shared between partners or other employers/voluntary agencies Arrangements for the employee during the investigation Whether there are any adult or child protection concerns to be dealt with Some professional bodies, e.g. General Social Care Council ask that they are informed of all suspensions prior to the disciplinary outcome being known. Others e.g. General Teaching Council only wish to be informed when the disciplinary process has been concluded. All concerns in relation to the employment in the future of a person who may pose a risk to vulnerable adults of children should now be made to the Independent Safeguarding Authority at the conclusion of the disciplinary process. The responsible manager in consultation with HR is responsible for making any such referrals and ensuring they are made at the right time. In cases where an external referral is likely to be necessary particular care needs to be taken to ensure good records are kept of the investigation and disciplinary process. The employee should be informed when an external referral is made. 7. Responsibilities Heads of service: Heads of Service will have overall responsibility for the effective management and discipline of the staff in their service. They may delegate this responsibility to managers in their service to carry out this function on a day-to-day basis. The Head of Service / Nominated manager will appoint the investigating manager and Chairperson for the disciplinary procedure. Investigating Manager: Normally the line manager of the employee in question will be responsible for conducting preliminary enquiries and full investigations. Depending on the situation, an independent manager may be appointed by the Head of service to investigate the situation in order to decide whether there is a case to answer. The investigating manager will submit their report to the Chairperson if any formal disciplinary hearing needs to be arranged. Chairperson: The Chairperson will be a senior manager appointed by the Head of Service to receive the investigation report and to make a decision about the recommendations in the report. Once the Chairperson has agreed that there is a case to answer, he /she will arrange the disciplinary hearing in conjunction with HR. The Chairperson will preside at the hearing and make a decision regarding the outcome of the case. Appeals Manager: The Head of Service will identify a suitable senior manager to chair any appeal against a disciplinary sanction on behalf of the Council and give a final decision. The senior manager should be one who has had no prior involvement in the details of the case or 4

5 the disciplinary hearing. In the case of a dismissal, Head of Service or Director will determine the appeal. The decision of the manager hearing the appeal will be full and final within the Council. 8.The Disciplinary Procedure Informal Procedure When minor breaches of discipline occur, the employee shall be advised by his or her service manager or responsible officer of the conduct or standard required in the future, and of the probable consequences of a further breach of discipline. This may be in writing for the purpose of encouraging the person to improve in this area of their work. This action is deemed part of the normal supervisory process and is not part of the formal disciplinary procedure. The formal procedure will not normally be invoked unless it is considered by the appropriate officer that: Previous informal counselling has proved ineffective or The complaint is of a serious nature or A number of minor complaints are made, which taken together constitute a breach of discipline Preliminary Enquiry Preliminary enquiries are an opportunity to discover whether a full disciplinary investigation is needed. The purpose is to identify whether there is enough evidence to indicate that some misconduct has taken place. As such it will not always be necessary to inform an employee at this stage that a concern has been raised. The preliminary investigation may indicate, without the need to talk to the employee, that the allegation is unfounded. Formal Procedure Preliminary enquiries may reveal the need for a formal investigation to be conducted. In such a situation the concerned employee should be advised as early as possible that an allegation has been made that needs to be thoroughly investigated under the disciplinary policy. The employee should be informed that such an investigation is taking place. One exception to this might be in the case of harassment or safeguarding investigations, when there is a reasonably held belief that early knowledge of an investigation might result in a risk to children or other people. In such cases, the person suspected must be informed of the investigation as soon as possible, but with the safety of all concerned as the main concern. A further example would be cases of fraud where there is a risk the employee might remove or tamper with evidence. In such cases the employee should only be informed of the allegation when the risk to the evidence has been removed. In certain circumstances line managers / investigating managers may feel the need to suspend the employee in question in order to carry out a full and fair investigation. Suspension An employee may be suspended on full contractual pay whilst an investigation is conducted if: The investigating manager believes that such a suspension would facilitate the investigation, or without such a suspension the investigation could be compromised. It is recommended that a risk assessment may be undertaken to inform complex suspension decisions. The complaints, if proven, are likely to be viewed as gross misconduct resulting in the employee s dismissal. 5

6 There is a serious risk to service users, employees, council resources or property if they remain at work. The advice of the relevant safeguarding team may be sought to assist in assessing this risk. It is, however, emphasised that suspension is a neutral act and not, in itself, a form of disciplinary action, nor is it any indication that the complaints have been proven. In less severe cases as an alternative to suspensions temporary redeployment to other duties may be considered. The decision to suspend an employee must be made in consultation with the Head of Service and HR. Where either may not be available immediately, managers are advised to send employees away from the place of work and grant special leave to the employee. This is to ensure that the decision to suspend is considered properly at the appropriate level. Investigation The employee s line manager will normally undertake the formal disciplinary investigation. Where this is not possible, due to the nature of the allegations or the complexity of the case, management will appoint an independent investigating manager. In exceptional circumstances, where cases are highly complex, it may be appropriate for a second manager to be appointed to assist with investigation. It is essential that appropriate information and adequate time is allowed for all parties involved within the investigation to undertake a thorough and efficient process. The manager undertaking the investigation will be responsible for co-ordinating and undertaking the investigation and producing a final report summarising their findings. The investigating manager will establish the facts of the case, define the allegation(s), the people affected and obtain the relevant facts and information by meeting the concerned employee, witnesses, other parties as appropriate. The report of the investigating manager will include, a recommendation for the level of disciplinary action deemed necessary. The report will be submitted to a Chairperson to determine whether a formal disciplinary hearing should be convened Witnesses Witnesses interviewed during investigations may have a work colleague or trade union representative present if they wish, however this should not be allowed to cause an unnecessary delay. Witnesses should be clear about what format the hearing will take if expected to participate and how they may be questioned by both parties. The investigating officer is responsible for briefing the management witnesses and the employee or their representative for briefing the employees representatives It is not the Council s practice to ask children, vulnerable adults or service users to be witnesses at internal disciplinary hearings. They may be asked to make a written statement and a suitably skilled person may be asked to represent their interests on their behalf. 9. Arranging the Disciplinary Hearing If it is agreed that there is a case to answer, HR should be informed and a plan should be agreed upon to ensure relevant timescales are met. A formal disciplinary hearing will be arranged, where the Chairperson will be asked to preside over the hearing. The investigating manager will be responsible for presenting the allegation against the employee. The Chairperson will be responsible for deciding the level of disciplinary sanction, if required against the employee. In the event of the formal disciplinary procedure being evoked, the employee will be informed in writing: 6

7 Of the date of the hearing, giving a minimum of 5 working days notice Of the allegations that they will be required to answer Of their right to call witnesses and produce documentary evidence in support of their case Of their right to be represented by a trade union representative or fellow employee of their choice Of the potential sanction that may be issued 10. Disciplinary Stages Cases may enter any of the disciplinary stages mentioned below depending on the severity, frequency and general circumstances of the issue in question. There is no obligation to follow the stages sequentially. Also, the issues need not be of the same nature for progression to the next level of sanction. Stage 1 Short Disciplinary Procedure There are situations where issues need to be dealt with more formally than mere informal standard settings. In order to provide more flexibility to managers to resolve such relatively straight forward cases at an early stage, Managers may decide to invoke the short disciplinary procedure. To be dealt under the short disciplinary procedure the disciplinary issue under question should be very straight forward, with clear evidence and one, which does not classify under gross misconduct. Under the short disciplinary procedure there will be no requirement to appoint a Chairperson and the appropriate line management will be able to issue a written warning under the short disciplinary procedure to the employee once they are convinced that there is a simple and clear case to answer. HR will need to be informed of the outcome for monitoring purposes. A brief note of the written warning will be kept but it will normally be considered spent after 6 months, subject to satisfactory conduct. The same principles that apply to the full length disciplinary procedure will apply in terms of timescales, notification, representation, consideration and mitigation and appeals Stage 2 Written Warning If the offence is a serious one, or if a further offence occurs, a full length disciplinary procedure will be invoked. The investigating manager will make their recommendation to the hearing manager, who will decide if a Stage two written warning will be given to the employee in question. This will give details of the complaint, the improvement required and the timescales applicable. It will warn that action under Stage 3 will be considered if there is no satisfactory improvement or if there is further misconduct. Employees will be informed of their right to appeal. A copy of this written warning will be kept, but it will be disregarded for disciplinary purposes after 12 months, subject to satisfactory conduct. Stage 3 Final Written Warning If there is still a failure to improve, and conduct is still unsatisfactory, or if the misconduct is sufficiently serious to warrant only one written warning, but insufficiently serious to justify dismissal (in effect both first and final written warning), a final written warning will normally be given to the employee. This will give details of the complaint, will warn that dismissal will result if there is no satisfactory improvement, and will advice of the right of appeal. A copy of this final written warning will be kept, but it will be disregarded after 18 months subject to satisfactory conduct and performance. Final written warning with action short of dismissal which might include: o a recommendation of a transfer to post at a similar grade in another area 7

8 o an offer of continuing employment conditional on the employee accepting an offer of a post at a lower grade without salary protection Dismissal If conduct or performance is still unsatisfactory and the employee still fails to reach the prescribed standards, dismissal will normally result. The employee will be provided, as soon as reasonable practicable, with written reasons for dismissal, the date on which employment will terminate and the right of appeal. If an employee is dismissed for an act of gross misconduct the result will normally be summary dismissal without notice or payment in lieu of notice. Other considerations Where a serious safeguarding concern has been raised it may be that the relevant warning or the existence of a previous investigation should never be disregarded for disciplinary purposes. If an employee commits a very similar offence for which a warning has already been issued, the earlier issue will be considered for the new disciplinary procedure even if the warning for the first offence has expired. Other sanctions that may be imposed include financial reimbursement where there has been a financial loss to the Council, or withholding salary progression or pay rises 11. Process at a full length disciplinary hearing The number of persons attending the hearing will be kept to the minimum but will include: The employee The employee s representative if so desires The investigating officer (if so appointed) Witnesses for both sides (if required and at the appropriate time) The hearing manager (who will act as chairperson) Human Resources representative where appropriate Note taker The procedure at the hearing will be: The chairperson will explain that the purpose of the hearing is to consider whether disciplinary action should be taken in accordance with the Council s disciplinary procedure. The chairperson will state precisely what the complaint is and outline the case briefly by going though the evidence, which has been gathered, including calling witnesses if appropriate. If an investigating officer has been appointed, he or she will present the allegations, introducing such documentary evident and calling such witnesses as he or she requires The employee or his or her representative will have the opportunity to question each witness The chairperson will question each witness if this is appropriate. 8

9 The employee or his or her representative will be asked if he or she has any explanation for the alleged misconduct or failure to improve or if there are special circumstances to be taken into account. The employee or his or her representative will present their case, introducing such documentary evidence and calling such witnesses, as he or she requires. The chairperson and investigating officer, if appointed, will have the opportunity to question each witness. The chairperson will adjourn the meeting to consider the case in private. The chairperson will recall the parties and announce his or her decision The chairperson will normally give their decision orally to the two parties confirm his or her decision in writing to the employee no later than 5 working days from the date of the hearing. The employee will be advised of their right to appeal, the relevant procedure to be followed and the name of the manager who will hear the appeal. 12. Decision making In reaching a decision the Chairperson will need to consider whether the allegations should be upheld or not on the balance of probabilities, i.e. more likely to have occurred than not. There is no need to prove case beyond all reasonable doubt in an employment setting. Having reached a decision on each of the allegations the Chairperson will need to consider the following points in determining the appropriate outcome: The outcomes imposed in comparable cases The employee s disciplinary record Any mitigating circumstances Whether the outcome is reasonable 13. Appeals If, following the taking of any form of disciplinary action, an employee wishes to exercise his or her right to appeal, he or she must do so by lodging a notice of the grounds of appeal in writing with the appropriate manager within 10 working days of being notified of the disciplinary action. Receipt of the employee s notice of appeal in writing will be acknowledged. The written notice of appeal must make clear whether the employee is appealing against the finding that he or she has committed the alleged act or acts of misconduct and or the form of disciplinary action decided upon. Procedure for appeals The Head of Service will identify a suitable senior manager not previously involved in the detail of the case or the disciplinary hearing to chair the appeal on behalf of the Council and give a final decision. In the case of a dismissal, Head of Service or Director will determine the appeal. HR will appoint an advisor who has also not previously been involved in the detail of the case or the disciplinary hearing to advise the chairperson of the appeal hearing. The appellant and his or her representative shall be given notice in writing at least five working days in advance of the time and place of the hearing. 9

10 The appeal will take the form of considering the appellants grounds for appeal, with both sides being entitled to call witnesses and to produce such documentary evidence, as they require. Any such documentation should normally be exchanged at least 3 days prior to the hearing date. New evidence should not normally be introduced at an appeal hearing. Any question as to the procedure to be followed at the appeal will be determined by the chairperson and their decision will be final. The purpose of an appeal hearing is not to rehear all the evidence presented at the initial disciplinary hearing but to consider the employees grounds for appeal, whether the initial decision was reasonable and consistent with other decisions made by the Council in similar circumstances. The employee should present their case first, once both sides have presented their case, the Chair of the appeal and their advisor will adjourn to consider the decision. The Chair of the appeal s decision will normally be given orally to the two sides and/or confirmed in writing by their advisor within five working days. The decision of the Chair is final 14.Dealing with delays - Attendance at Disciplinary hearing and rearranging As a principle rearrangement of any disciplinary hearing will only be done once and if the employee fails to attend this re arranged hearing, a decision will be made in his /her absence based on the information available to the Chairperson. The decision of the Chairperson will be communicated to the employee in writing. The employee will also be advised of their right to appeal, of the name of the manager nominated to hear the appeal and the relevant procedure to be followed 15. Employee support All employees subject to disciplinary proceedings should be offered the support of the Employee Assistance Programme and be advised to contact their trade union representative if they have one. Employers have a duty of care to all staff particularly those who are suspended from duty and it may be appropriate to appoint someone outside of the disciplinary process who can act as their support and contact with the authority. 16.Equalities impact and review HR is responsible for monitoring the impact of this policy on the workforce and ensuring it is not applied disproportionately to certain staff groups. Reports showing the E&D breakdown of cases in a Directorate should be shared at least annually with Directorate management teams. The policy will be kept under regular review and amended from time to time. 10

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