Date Issued Planned Review PGN No: Contents. Section Description Page No. 1 Introduction 1. 2 Purpose 1. 3 Disciplinary Rules 1

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1 Disciplinary Policy Practice Guidance Note V03 Date Issued Planned Review PGN No: Issue 1 April 2015 March 2018 D-PGN-01 Part of NTW(HR)04- Disciplinary Policy Author / Designation Responsible Officer / Designation Claire Shaw - Head of HR Lisa Crichton-Jones Executive Director of Workforce and Organisational Development Contents Section Description Page No. 1 Introduction 1 2 Purpose 1 3 Disciplinary Rules 1 4 Why do Managers have to manage disciplinary situations? 7 5 Managers Role 8 6 What happens if a potential disciplinary situation arises? 8 7 Dealing with issues of M inor Misconduct or Unsatisfactory Performance 8 8 Records of Informal Meetings 9 9 Dealing with a Patient Complaint? 9 10 What if further Investigation is required? 9 11 Deciding if Suspension applies Who Leads an Investigation? Arranging the Investigative Meetings? Note Taking? Statements? 11

2 16 Representation? Timescales? No case to answer? Investigation completed next steps Considering Manager? Preparing for the Disciplinary Meeting (Disciplinary Hearing) Arranging the Disciplinary Meeting (Disciplinary Hearing)? Preparing for the Disciplinary Appeal Employees with Criminal Charges of Convictions Examples of Disciplinary Practice as set out in the Acas Guidance Notes Further Advice 18

3 1 Introduction 1.1 These guidelines have been written to be used in accordance with NTW(HR)04 - Disciplinary Policy. They are designed to assist managers to positively manage disciplinary situations and should be seen as a supportive mechanism to reinforce expected standards of behaviour, help change unacceptable behaviour within the workplace and foster a good working environment that will improve patient care. They are not intended solely to be a means of imposing punishment. 2 Purpose 2.1 The purpose of these guidelines and the accompanying Policy is to assist you to manage disciplinary situations that may arise in your department. They contain advice on how to approach common problems and set out a checklist of actions that you must take to ensure potential or actual disciplinary situations are managed effectively and in a timely manner, therefore freeing capacity to continue with proactive management as opposed to reactive management. 2.2 The guidelines have also been developed to promote a culture where unacceptable behaviour towards patients, carers and colleagues is not tolerated. 3 Disciplinary Rules 3.1 As a manager you must ensure your staff are aware of the high standards of behaviour, conduct and performance expected of them at all times. Employees need to understand the rules set by the Trust. 3.2 The rules apply to all staff and any breaches of discipline will be dealt with in accordance with NTW(HR)04 - Disciplinary Policy. Rules are categorised under the headings Misconduct and Gross Misconduct and they cover issues such as: Timekeeping; Absence; Health and Safety; Use of Organisation facilities; 1

4 Expenses; Discrimination, bullying and harassment. 3.3 A high standard of conduct is expected from staff at all times. As employees of the Trust, staff are looked upon to present a good impression at all times, in particular to the general public, to patients and their relatives, and are at all times required to behave in a manner which is unlikely to cause offence, and to avoid any actions that might jeopardise the reputation of the Trust or its employees. The purpose of the rules are as follows: To set out what types of conduct and performance are unacceptable to the Trust; To highlight the possible repercussions of breaching these rules. 3.4 No set of rules can cover all circumstances that may arise, so therefore the list is not exhaustive. 3.5 Certain departments will have special protocols which are relevant to working practices and which will be brought to the attention of staff concerned. Individual members of staff must ensure that they are familiar with such codes / standards. 3.6 Any breaches of discipline will be dealt with in accordance with the Trust s Disciplinary Procedure. 3.7 Where (following a full investigation and Hearing, in accordance with NTW(HR)04 - Disciplinary Policy) it is established that a breach of discipline has occurred, managers need to make a judgment as to the seriousness of the case and which category is applicable. The categories are : Misconduct The following paragraphs set the standards of general conduct which are fundamental to employment and, if breached may lead to disciplinary action. However, there may be circumstances whereby the nature of misconduct warrants a more serious penalty and may be categorised under Gross Misconduct. 2

5 This list is neither exclusive nor exhaustive and there will be other offences that may result in a disciplinary investigation. Every offence needs to be carefully considered and disciplinary action taken if necessary. Behaviour All staff should carry out reasonable oral or written instructions of their line managers / supervisors. Employees must not abuse their status or position when dealing with fellow employees, patients or members of the public. Dishonesty The Trust expects its employees to be honest, not only in employment with the Trust. An employee should not, without sufficient cause, alter, erase, add to, destroy or mutilate any document or record. Contractual Obligations There are certain statutory obligations which are placed on some employees (requirement to hold a driving licence, professional registration, etc.) and failure to comply with these may render the continuation of their contract of employment itself impossible. Attendance Staff are expected to attend for duty at the correct time and work their contracted hours. In the case of sickness, sudden domestic emergency or other good reason which prevents a member of staff from reporting for duty, or requires them to go off duty early, the responsibility lies with the member of staff concerned to inform his / her manager or deputy in accordance with locally agreed procedures. 3

6 Alcohol / Illicit Substances Staff must not be under the influence of alcohol or illicit substances, when coming on duty or during the course of their duties.*(see also NTW(HR)21 Managing Alcohol and Other Substance Misuse Policy). Private Business / Outside Employment Employees wishing to engage in employment in off duty hours shall give prior notification to their manager. Staff should remember that such employment must not adversely affect their work with the Trust. The Disciplinary Procedure may be invoked if the Trust concludes that the employee s performance is affected or if the interests of the Trust are adversely affected by the nature of the outside employment. Security Local rules and procedures will, as appropriate, deal with security arrangements. Deliberate or negligent disregard of security will be treated as a disciplinary matter. The unauthorised cutting of keys, use of incorrect name badge and / or ID badge is strictly forbidden. Employees must ensure that they are familiar and comply with the requirements of the IT Security Handbook. There may be instances when a breach of the IT Security Handbook may be regarded as Gross Misconduct, e.g. deliberate or intentional misuse of passwords. Confidentiality The nature of all health service work, especially information about the contracted affairs of the Trust, patients and staff, is highly confidential. Employees must not divulge this information to any unauthorised person or agency without prior permission (Subject to the Public Interest (Disclosure) Act 1998). Health and Safety All staff are expected to observe basic health and safety rules in accordance with the Health and Safety at Work Act 1974, failure to comply may lead to disciplinary action. 4

7 Neglect of Duty Gross Misconduct All staff have a duty to fulfil their contract of employment and neglect of that duty may be treated as misconduct The following are examples of misconduct that are regarded as very serious and may lead to dismissal without prior warning (i.e. Summary). General Any breach of the rules outlined in the previous section, which is so serious that it amounts to gross misconduct (or gross, or wilful negligence) justifying dismissal without previous warning. Ill treatment or wilful neglect of patients Any ill treatment, either physical or verbal or wilful neglect of patients will amount to gross misconduct. Theft, Fraud, Bribery and Deliberate Falsification of Records Any instances of theft of property from the Trust, or from patients, visitors, or other members of staff on health service premises, or on its business. Any incident of fraud and deliberate falsification of records. Assault and Fighting Any fighting, assault or attempt to cause actual bodily injury upon a patient, member of public or fellow employee that takes place on health service premises, or whilst on duty. 5

8 Discrimination / Harassment / Bullying All members of staff have a duty not to act in a way which is discriminatory, abusive or which constitutes racial, sexual, or other forms of harassment to any member of staff, patient or member of the public (Ref: NTW(O)42 Managing Diversity Policy and NTW(HR)08 Dignity and Respect at Work Policy). Malicious Damage Where an employee deliberately causes waste, loss, damage or vandalism to the property of the Trust / clients / staff, and / or fails to report such a loss or damage. Being Unfit for Duty Serious misbehaviour and/or being unfit for duty through the effects of alcohol, drugs or illicit substances. Deliberate misuse of Trust IM&T Systems Where an employee deliberately accesses internet sites via the Trust internet systems that contain Pornographic, offensive or obscene material. 3.8 To facilitate the above it is important that you ensure staff undergo a comprehensive corporate and local induction, are released to attend appropriate training courses and are aware and have an understanding of other Trust policies and terms of service including: Staff Charter; NHS Code of Conduct for Managers; NTW(HR)08 Dignity and Respect at Work Policy; Agenda for Change Terms and Conditions; Medical and Dental Terms and Conditions; Contracts of Employment; IT Security Handbook; 6

9 Standing Orders and Standing Financial instructions; NTW(HR)21 - Managing Alcohol and Other Substance Misuse Policy; Knowledge and Skills Framework; NTW(HR)10 Attendance Management Policy Sickness Management Policy; Professional Codes of Conduct where applicable, so that we develop an organisation where mutual respect and dignity for each other is at the forefront of our day to day practice. 4 Why do Managers have to manage Disciplinary situations? 4.1 When a disciplinary situation arises it has the potential to have an adverse effect on all those involved in it which in turn could have a negative impact on service delivery. 4.2 If it is not managed promptly, effectively and fairly this potentially is not only damaging to staff but it may negatively impact on the quality of care provided to patients. It is also very expensive and puts extra pressures on those that are left to provide cover. 4.3 Invoking disciplinary action can bring with it additional costs both financial and psychological and that is why the emphasis on the manager is to try and resolve these issues at the lowest level wherever possible. As a manager you are best placed to ensure that if a situation does arise then it is managed promptly to minimise and reduce the associated risk to your staff and your patients. As a manager it is your responsibility to proactively and quickly manage disciplinary issues in accordance with NTW(HR)04 - Disciplinary Policy. Every effort should be made to do this locally at the lowest possible level of the policy. Often issues can be resolved informally or via mediation and the revised ACAS Code stresses the importance of trying this first if appropriate. 7

10 5 Managers Role To set standards of behaviour, conduct and performance. Try and find ways for the employee to improve and sustain that improvement. To be familiar with NTW(HR)04 - Disciplinary Policy including attending the mandatory training course. To be aware of the Staff Charter, NHS code of Conduct for Managers etc., and the Trust expectations of managers and staff alike in relation to professional conduct and standards of behaviour. To familiarise yourself with the other Trust Policies such as NTW(HR)08 - Dignity and Respect at Work Policy, and NTW(HR)05 - Grievance Policy To ensure full compliance with the NTW(HR)04 - Disciplinary Policy at all times by all staff within your area of responsibility. Our Trust target for dealing with disciplinary cases is 56 days to Hearing. 6 What happens if a potential disciplinary situation arises? 6.1 You should do a very quick fact finding preliminary investigation. This is about talking to the person who has raised a complaint to determine if further investigation is necessary or whether or not the matter is less serious and therefore can be addressed informally. 7 Dealing with issues of minor misconduct or unsatisfactory performance? 7.1 The ACAS code is quite clear that issues such as these are in the first instance usually best dealt with informally i.e. has a quiet word. 7.2 Action may include reminding employees of their expected standards of conduct or may require coaching, objective setting or refresher training. 8 Records of Informal Meetings 8

11 8.1 You should keep notes of any agreed informal action for reference and ensure progress is monitored. This may be done via a letter to the employee confirming what was discussed and agreed at the meeting. 8.2 Copies should be retained for future reference if required. 9 Dealing with a Patient Complaint 9.1 If it is a patient raising a complaint consider the following: How serious is the complaint?; Are there any witnesses?; Do you need to talk to the RMO or key worker?; Do you need to consider the patients history?; Is there enough to warrant further investigation? NB: If the matter is of a very serious nature you must complete an IR1 /SUI. It is also important that you use The Incident Decision Tree when considering patient safety issues which helps to determine if the incident was due to an individual or was a systems failure and therefore whether disciplinary action is appropriate. 10 What if further Investigation is needed? 10.1 You must consult with Workforce before the formal process is started 10.2 You need to consider whether the incident falls under the Protection of Vulnerable Adults or Safeguarding regulations or whether it is a counter fraud issue You must inform the employee of the allegations against them and provide them with the information they require which is set out on page 6 Para 7.31 of the Policy.* 9

12 10.4 You need to confirm the allegation against them in writing within five working days and the letter must include that dismissal could result if appropriate. if the allegation is a Protection of Vulnerable Adults or Safeguarding issue then you must not disclose specific details of the allegation to the employee. You may say it is around physical abuse etc., but you should not go into any detail other than to state that the allegation is being investigated under one or the other procedure. 11 Deciding if Suspension applies? 11.1 You should only consider suspension as a last resort 11.2 All alternative options to suspension should be considered You need to carry out a risk assessment to determine whether there are risks associated with keeping someone at work and if applicable whether or not those risks can be neutralised. You may want to do this via a case conference involving Workforce, Professional Leads and operational management If the assessment is low or non-existent then suspension will not apply You must consult Workforce prior to any Suspension 11.6 Prior to suspension every effort will be made to make Staff Side aware via the Staff Side Chair or Secretary that it is your intention to suspend an employee. You should not disclose the name of the employee as the employee may not be a trade union member or wish to be represented Prior to the suspension you need to contact the employee. You can inform them at that point that you wish to discuss a serious issue with them and advise them that they can be accompanied by a trade union representative or fellow worker if they so wish. It is the individual s responsibility to arrange this. You can proceed with a suspension meeting if an individual is unable to arrange to be accompanied by a trade union representative as there is no statutory right to be accompanied at such a meeting. However, every effort should be made to accommodate any request to be accompanied wherever it is practicable. 10

13 11.8 An employee should be handed a copy of NTW(HR)04 Disciplinary Policy at the suspension meeting Workforce does not need to attend suspensions The individual should be notified of the allegations and the terms of suspension in writing The suspension should be reviewed in the event it lasts longer than three months. 12 Who leads an Investigation? 12.1 The investigating officer should lead any investigative meetings supported by Workforce. 13 Arranging the Investigative Meeting? 13.1 The investigating officer should arrange any meetings and confirm them in writing to the individual and witnesses and representatives where applicable appropriate. 14 Note Taking? 14.1 The task of taking management notes should be equally shared between the Investigating Manager and Workforce representative if no independent note taker is available. Any notes should be brief and are primarily for management purposes only; however, they should be made available to the employee for information only. 15 Statements? 15.1 An individual can provide a statement immediately following an investigative meeting or alternately they can sign a copy of notes taken by the Investigating Team if the employee agrees they reflect the discussion points of the meeting. 11

14 16. Representation? 16.1 An employee has a statutory right to be represented at a Disciplinary Meeting (Disciplinary Hearing) or Disciplinary Appeal Hearing Employees do not have a statutory right to be accompanied at a meeting to investigate an issue, however, the Trust believes in partnership working with our Staff Side colleagues so every effort should be made to accommodate a request to be accompanied providing it does not delay the investigation It will be the responsibility of the individual under investigation to make arrangements to be accompanied or represented as appropriate The employee should notify the Investigating Manager and Workforce who will accompany them to a meeting 17 Timescales? 17.1 The Trust s Workforce strategy sets out a timescale of 56 days for completion. 18 No case to answer? 18.1 If you find there is no case to answer then discuss your findings with the Considering Manager and cease the investigation at the earliest opportunity. The Considering Manager must write to the individual to inform them of the decision not to proceed with the investigation. 19 Investigation completed next steps 19.1 When an investigation has been completed, a report should be completed by the Investigating Manager immediately and be ready to submit to the Considering Manager within seven working days from the completion of the investigation Both the Investigating Manager and Workforce representative should sign the Report It is not the role of the Investigating Team to make recommendations. This is the role of the Disciplinary Panel. 12

15 20 Considering Manager? 20.1 The Considering Manager will normally be at least a Service Manager depending on the level of the employee being investigated. 21 Preparing for the Disciplinary Meeting (Disciplinary Hearing) 21.1 Ensure that all relevant facts are available such as disciplinary records and any other relevant documents and where appropriate written statements from witnesses Make sure notes of the meeting are taken Check out if there are any factors to be taken into account. For example, are there personal or other outside issues affecting the employee s performance or conduct Anticipate what explanations may be given by the employee and check them out beforehand if possible Allow the employee to prepare his or her case and provide them with copies of relevant papers and witness statements in advance Arrange a time for the meeting. Note the employee may offer a reasonable alternative date within five days of the original date. You may also arrange another date if the employee fails to attend through circumstances outside their control such as illness If a person has gone on sick leave, a referral to Occupational Health should be made immediately on receipt of a medical note. If a person has notified the Trust they are ill, sick pay arrangements apply and Workforce must be notified of the absence via the electronic absence return procedures Try and get a statement from any witness outside the organisation who is not prepared to attend the meeting Make provision for any reasonable adjustment to accommodate an employee who has a disability If a person repeatedly refuses to attend a meeting, Workforce advice should be sought. 13

16 22 Arranging the Disciplinary Meeting (Disciplinary Hearing)? 22.1 The Considering Manager must arrange the Disciplinary Meeting (hearing) 22.2 The employee must be given at least 5 working days notice of a Disciplinary Meeting (hearing) 22.3 Any letter informing an employee that the case is to progress to a Disciplinary Meeting (Hearing) must inform them that one potential outcome of the Disciplinary Meeting (Hearing) is that they may be issued with a disciplinary sanction including dismissal where appropriate. 23 Preparing for a Disciplinary Appeal 23.1 The employee has a right to appeal against any formal action taken against them by writing to the Executive Director of Workforce and Organisational Development with ten working days of receipt of the letter confirming the action taken against them The appeal will be heard by the Chief Executive or a Director who has not been involved in the case Wherever practicable appeals should be heard within four weeks of being lodged The Chair of the Disciplinary Meeting (Disciplinary Hearing) will present the management side case Section 21 of these guidance notes set out some of the issues you need to consider prior to an Appeal Hearing Appendix 4 of the Disciplinary Policy sets out the Appeals Procedure. 24 Employees subject to Criminal Charges or Convictions? 24.1 Employees are required to inform the Trust if they have been arrested on any charge or cautioned or served with a summons for a criminal charge. Failure to inform may result in the employee being liable for disciplinary action. 14

17 24.2 It should be noted that an employee should not be dismissed or disciplined solely because he or she has been charged with or convicted of a criminal offence A risk assessment must be carried out to consider whether the employee s conduct merits action because of its employment implications. If it does, the Trust should investigate the facts to enable it to come to a view of whether the conduct is sufficiently serious to warrant instituting the disciplinary procedure During the Police Investigation the Trust must liaise with the Police to determine whether or not the internal investigation can commence. Then depending on the severity of the offence and the timescales for the decision, the Trust will await the decision to be taken by the Crown Prosecution Service whether or not to take an employee charged with a criminal offence to trial, before concluding the internal disciplinary process Where Fraud, Bribery or Corruption has taken place within or against the NHS, the full range of available sanctions including criminal, civil, disciplinary and / or regulatory will be considered and pursued where and when appropriate. Any criminal investigation conducted by the LCFS will be in adherence to the Police and Criminal Evidence Act (PACE) 1984 and the Criminal Procedures and Investigation Act (CPIA) Any investigation conducted by the LCFS will be carried out independently to the Trust disciplinary process, although in certain circumstances, findings from the fraud investigation may be shared with the Trust for use within the disciplinary investigation. 25 Examples of Disciplinary Practice as set out in the ACAS Guidance Notes 25.1 Discipline in Practice A valued and generally reliable employee is late for work on a number of occasions causing difficulty for other staff who have to provide cover You talk to the employee on his own and he reveals that he has recently split up with his wife and he now has to take the children to school on the way to work. You agree a temporary adjustment to his start and finish times and he undertakes to make arrangements for school run cover which solves the problem. You decide that formal disciplinary action is not appropriate 15

18 25.2 Discipline in Practice A member of staff in accounts makes a number of mistakes on invoices to customers. You bring the mistakes to his attention, make sure he has had the right training and impress on him the need for accuracy but the mistakes continue. You invite the employee to a disciplinary meeting and inform him of his right to be accompanied by a colleague or employee representative. At the meeting the employee does not give a satisfactory explanation for the mistakes so you decide to issue an improvement note setting out: the problem, the improvement required, the timescale for improvement, the support available and a review date. You inform the employee that a failure to improve may lead to a final written warning Discipline in Practice 3 An employee in a small firm makes a series of mistakes in letters to one of your key customers promising impossible delivery dates. The customer is upset at your firm s failure to meet delivery dates and threatens to take his business elsewhere. You are the owner of the business and carry out an investigation and invite the employee to a disciplinary meeting. You inform her of her right to be accompanied by a colleague or employee representative. Example outcome of meeting At the meeting the employee does not give a satisfactory explanation for the mistakes and admits that her training covered the importance of agreeing realistic delivery dates with her manager. During your investigation, her team leader and section manager told you they had stressed to the employ i.e. the importance of agreeing delivery dates with them before informing the customer. In view of the seriousness of the mistakes and the possible impact on the business, you issue the employee with a final written warning. You inform the employee that failure to improve will lead to dismissal and of her right to appeal. 16

19 Example outcome of meeting in different circumstances At the meeting, the employee reveals that her team leader would not let her attend training as the section was too busy. Subsequently the team leader was absent sick and the employee asked the section manager for help with setting delivery dates. The manager said he was too busy and told the employee to use her initiative. Your other investigations support the employee s explanation. You inform the employee that you will not be taking disciplinary action and will make arrangements for her to be properly trained. You decide to carry out a review of general management standards on supervision and training. 30 DISCIPLINE AND GRIEVANCES AT WORK THE ACAS GUIDE Final written warning If the employee has a current warning about conduct or performance then further misconduct or unsatisfactory performance (whichever is relevant) may warrant a final written warning. This may also be the case where first offence misconduct is sufficiently serious, but would not justify dismissal. Such a warning should normally remain current for a specified period, for example, 12 months, and contain a statement that further misconduct or unsatisfactory performance may lead to dismissal Discipline in Practice 4 A member of your telephone sales team has been to lunch to celebrate success in an exam. He returns from lunch in a very merry mood, is slurring his speech and is evidently not fit to carry out his duties. You decide to send him home and invite him in writing to a disciplinary meeting setting out his alleged behaviour of gross misconduct for which he could be dismissed. Your letter includes information about his right to be accompanied by a colleague or employee representative. At the meeting he admits he had too much to drink, is very apologetic and promises that such a thing will not happen again. 17

20 He is one of your most valued members of staff and has an exemplary record over his ten years service with you. You know that being unfit for work because of excessive alcohol is listed in your company rules as gross misconduct. In view of the circumstances and the employee s record, however, you decide not to dismiss him but give him a final written warning. You inform the employee of his right to appeal. Dismissal or other sanction If the employee has received a final written warning further misconduct or unsatisfactory performance may warrant dismissal. Alternatively the contract may allow for a different disciplinary penalty instead. Such a penalty may include disciplinary transfer, disciplinary suspension without pay, demotion, loss of seniority or loss of increment. These sanctions may only be applied if allowed for in the employee s contract or with the employee s agreement. Any penalty should be confirmed in writing, and the procedure and time limits for appeal set out clearly. There may be occasions when, depending on the seriousness of the misconduct involved, it will be appropriate to consider dismissal without notice. 26 Further Advice Workforces - telephone: , you will be directed to an appropriate Workforce Manager; Safeguarding telephone Jan Grey, Head of Safeguarding and Public Protection on or mobile ; For more information on NTW(HR)04 - Disciplinary Policy please contact the Workforce Department on