DISCIPLINARY POLICY. APPROVED BY South Gloucestershire Clinical Commissioning Group Quality and Governance Committee

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1 DISCIPLINARY POLICY APPROVED BY South Gloucestershire Clinical Commissioning Group Quality and Governance Committee December 2015 Date of Issue: December 2015 Version No: 2.0 Date of Review: November 2017 Author: North Bristol Trust HR Department Lindsey Perryman, Head of Governance and Risk 1

2 Document status: draft Version Date Comments 1.0 November 2013 Approved by Quality and Governance Committee 1.1 October 2015 Review by HR Department 1.2 October 2015 Reviewed by Policy Review Group 2.0 November 2015 Approved by Quality and Governance Committee 2

3 CONTENTS Section Summary of Section Page Cont Contents 2 1 Policy Statement 4 2 What is the purpose of the Disciplinary Procedure? 4 3 Who does the Policy and Procedure apply to? 4 4 Who does the Policy and Procedure not apply to? 4 5 What sort of problems does this Policy and Procedure cover? 6 What are the Key Principles? 5 7 Should the member of staff be suspended from duty? 5 8 How are investigations conducted? 6 9 Formal Hearings under the Disciplinary Procedure 6 10 What happens at a formal hearing under the disciplinary procedure? 11 Decisions of the Panel 9 12 Possible outcomes How to appeal against a disciplinary sanction or dismissal 14 How are records kept? What happens to spent warnings? How will disciplinary cases be monitored? Policy Review statement 11 Appendix Appendix 1 Definition of Terms 12 Appendix 2 The Right to be Accompanied 13 Appendix 3 Disciplinary Procedure Flow Chart 14 Appendix 4 Example Letter for Notification of Disciplinary Hearing 15 Appendix 5 Example of Disciplinary Outcome Letter 16 Appendix 6 Cover Sheet for Disciplinary Hearing 17 Appendix 7 Issues to be Considered When Deciding on Disciplinary Outcome Further information and advice is available from your Human Resources Department. You may also seek the advice of your Trade Union Representative at any stage of the procedure

4 1 POLICY STATEMENT 1.1 NHS South Gloucestershire Clinical Commissioning Group (CCG), recognises that from time to time members of staff may fall short of the standards required by the service or may fail to behave in an appropriate manner, either within or outside of the workplace. This policy and procedure has been developed to provide a fair, objective, effective and confidential way of dealing with such matters relating to conduct which may, following an investigation lead to a disciplinary hearing and possible disciplinary action. This policy will be applied firmly but sensitively, with a true sense of natural justice, equality and consistency and both managers and members of staff will be made aware of their responsibilities. We recognise that individuals may have different norms, values and expectations commensurate with specific roles/professional bodies and those of the CCG. Those involved in using this policy must therefore, demonstrate knowledge and skills in dealing with any such issues, which may present themselves during the process. 2 WHAT IS THE PURPOSE OF A DISCIPLINARY PROCEDURE 2.1 To bring about improvements in the conduct of members of staff and where appropriate in systems of work. 3. WHO DOES THE POLICY AND PROCEDURE APPLY TO? 3.1 This policy is applicable to: Members of the CCG Committees and sub-committees of the CCG Individuals on the CCG governing body and committees and sub committees Employees of the CCG Third parties acting on behalf of the CCG (including commissioning support and shared services) 4. WHO DOES THIS POLICY AND PROCEDURE NOT APPLY TO? 4.1 Those employed by other organisations and honorary staff. The e m p l o y i n g organisation must deal with any disciplinary matters involving such staff. 5. WHAT SORT OF PROBLEMS DOES THIS POLICY AND PROCEDURE COVER? Minor misconduct Serious misconduct Gross misconduct 5.1 The definitions are provided in Appendix This Policy does not cover capability issues. Please see the Capability Policy for further guidance on this subject. 4

5 6. WHAT ARE THE KEY PRINCIPLES? a) Staff must be aware of the allegations made against them and be given an opportunity to respond. b) Staff have a statutory right to be accompanied and supported by a companion as defined in the ACAS code of practice (see Appendix 2 for more information) c) The Investigating Officer will receive guidance and support throughout all stages of the procedure from a Human Resources (HR) professional. d) No formal disciplinary hearing will be set up until the case has been fully investigated by an Investigating Officer, as defined in the CCG s Investigating (Employment) Complaints and Allegations Policy and Procedure. e) Except in a case of gross misconduct (defined in Appendix 1), an employee will not be dismissed for a first breach of conduct. f) Dismissals can only be sanctioned by an agreed Dismissing Officer, as defined in point 9.1 of the Disciplinary Procedure. g) Where the facts are in dispute, no disciplinary penalty will be imposed until the case has been carefully investigated and it is concluded on the balance of probability that the staff committed the act in question. h) Disciplinary decisions will be recorded and monitored by the HR Department to ensure that the Procedure is operated fairly and consistently to all staff, regardless of their ethnic origin, gender, disability, age, religion, sexual orientation, age, marriage & civil partnership; pregnancy and maternity (as per protected characteristics in the Equality Act 2010). Where evidence of inequality or adverse effect is found, the CCG will take remedial action accordingly. i) The process will be dealt with as swiftly as is reasonably possible. Confidentiality will be observed at all stages of the procedure by all parties including witnesses. j) Members of staff have the right of appeal against any formal sanction made at a formal hearing under the Disciplinary Procedure using the Appeals Policy. k) If there are concerns that the process has not been followed correctly, the policy breached or there are any other concerns related to this disciplinary procedure the member of staff is entitled to raise a grievance. However, should the grievance be against another issue this will not be investigated whilst the Disciplinary Investigation/Hearing is still on-going. 7. SHOULD THE MEMBER OF STAFF BE SUSPENDED FROM DUTY? 7.1 On occasions it may be necessary to consider suspending a member of staff 5

6 (on pay) from duty. This is a neutral act which does not constitute disciplinary action and which does not imply guilt. 8. HOW ARE INVESTIGATIONS CONDUCTED? 8.1 Investigations will be conducted in accordance with the Investigating [Employment] Complaints and Allegations Policy and Procedure. Managers must ensure that they refer to the Investigating [Employment] Complaints and Allegations Policy and Procedure before conducting any investigation into allegations. 9. FORMAL HEARINGS UNDER THE DISCIPLINARY PROCEDURE 9.1 Who may sanction disciplinary action? Disciplinary action shall be the responsibility of authorised levels of management to whom disciplinary powers have been delegated as follows: Possible level of warning: Authorised level of manager: Formal Warning Line Manager/ Head of Department Final Written Warning Director (may be delegated) Dismissal Director Cases of disciplinary action involving the Chief Officer or members of the CCG Governing Body will be referred to the NHS England Area Team It should be noted that all managers involved in the Disciplinary process will be provided with support and training from HR prior to the hearing. 9.2 Who should be on the panel? A Chair of the Panel who should normally be more senior than the Investigating Officer (and not be within the same Department as the member of staff involved). A Human Resources professional (in an advisory capacity). One other senior manager of an appropriate level may also attend in cases where the allegation is of gross misconduct. When necessary an appropriate professional advisor should be included. The composition of the Panel is important in terms of gender, race, disability, age, religion and sexual orientation and forethought should be given to this mix when deciding who should sit on the Panel. 9.3 Who will present the Management Case? The Investigating Officer will present the Management Case to the panel Witnesses may be called in support of the Management Case. The Investigating Officer must notify the Panel and the subject of the disciplinary investigation if they wish to call any witnesses in support of their case. 6

7 9.4 Who will present the Member of Staff s Case? The member of staff who is the subject of the hearing. They may also be accompanied by a representative of a recognised trade union, a fellow worker or a companion of their choice Witnesses may be called in support of the employee s case. The member of staff must notify the Panel if they wish to call any witnesses in support of their case. It is the member of staff s responsibility to arrange the attendance of their witnesses at the hearing. 9.5 How will the hearing be arranged? Once the decision has been made to convene a formal hearing under the Disciplinary Procedure this must be confirmed in writing. A template letter can be found in Appendix The letter to the member of staff should include the following information: The date, time and venue of the meeting. [At least 7 working days notice will be given] The fact that this is a formal hearing under the Disciplinary Procedure The nature of the allegation/s Who will be on the Panel to hear the evidence Who will be presenting the Management Case (including any witnesses attending) The fact that the outcome of the formal hearing may be a disciplinary warning and may (if appropriate) include dismissal. That they may be accompanied by a representative from a recognised companion A copy of the Management Case (Report of the Outcome of the Investigation) will be enclosed with the letter. This will include copies of statements relating to the case The member of staff is given 5 working days to prepare and return a response to the allegation The letter will be copied to the identified companion that supported the accused during the investigation unless the accused requests otherwise Consideration will be given to the availability of the member of staff s representative however it is expected that the member of staff and their representative make every effort to attend the Hearing If the accused refuses to attend the hearing, or cannot provide a substantial reason why they are unable to attend, it must be made clear to them that the hearing will still continue in their absence and a record kept of the reasons for this non-attendance. 7

8 9.6 What guidance should be offered to the member of staff? The investigating officer will advise a member of staff on the estimated completion date for the investigation and will keep them updated on a regular basis The member of staff should seek guidance on how to compile a response to the allegation (their case). This may be sought from the trade union representative if they are a member or from a fellow worker Briefly, the member of staff should include the following information in their case: A specific response to the allegation. This should be concise and refer to any supporting documents or statements in the appendices. Pages should be numbered and a contents page added at the front of the pack. No new information should be provided at this stage. 9.7 Arranging information packs for the hearing All members of the Panel and the Management Side will receive identical packs to that already sent to the member of staff and their representative containing the Management Side Case and the member of staff s response five days before the agreed date of the Hearing. The member of staff should inform the Panel Chair of the names of any witnesses who they will be calling to the hearing. Likewise, the Investigating Officer should inform the Panel Chair of the names of any witnesses who they will be calling to the hearing No new information can be submitted at this stage or during the hearing. 10. WHAT HAPPENS AT A FORMAL HEARING UNDER DISCIPLINARY PROCEDURE? 10.1 (See also flow chart in Appendix 3) a) The Investigating Officer (IO) will be asked to summarise the key points of the written statement of case and call witnesses in the presence of the member of staff and his/her representative. b) The members of the Panel shall have the opportunity to ask questions of the IO and his/her witnesses. c) The member of staff or their representative shall have the opportunity to ask questions of the IO and his/her witnesses. d) The IO shall have the opportunity to re-examine his or her witnesses on any matter referred to in their examination by members of the Panel, the member of staff or the member of staff s representative. 8

9 e) The member of staff shall put his or her case in the presence of the IO. f) The members of the Panel shall have the opportunity to ask questions of the member of staff, the member of staff s representative or witnesses. g) The IO shall have the opportunity to ask questions of the member of staff and their representative and witnesses. h) The member of staff or their representative (companion) shall have the opportunity to re-examine his or her witnesses on any matter referred to in their examination by members of the Panel or the CCG s representative. i) The IO and the member of staff or the member of staff s representative shall have the opportunity to sum up their cases if they so wish. The member of staff or their representative shall have the right to speak last. In their summing-up, neither party may introduce any new information. j) The Panel may at its discretion adjourn the hearing at any point in order that either party may produce further evidence or for any other substantial reason. At this point the manager, the member of staff and the member of staff s representative shall withdraw. k) The Panel advised by the Human Resources Adviser, shall deliberate in private only recalling both parties to clear points of uncertainty on the evidence already given. If recall is necessary, both parties shall return, even if only one of them is concerned with the point that has given rise to doubt. l) Witnesses will normally be asked to leave the hearing at the conclusion of their evidence and the Panel Chairman will indicate whether they should remain available for the duration of the hearing in case it is necessary to recall them The panel are required to complete the cover sheet contained within Appendix 6 to be attached to all other documentation relating to the hearing. 11. DECISIONS OF THE PANEL 11.1 If the member of staff is off sick during the disciplinary process, the investigating manager should refer to Occupational Health to determine whether the hearing should continue in the absence of the member of staff. The decision of the Panel, and the reasons for reaching that decision, will normally be announced at the end of the Hearing. If, due to reasons such as the amount of information presented or time constraints, etc., the panel may decide to adjourn the meeting to consider their decision and inform the member of staff of the outcome in writing. Appendix 7 provides suggested issues that the panel may wish to consider when reaching their decision. Clear records should be made to demonstrate how the panel arrived at their decision and the factors considered during this process Decisions and the reasons for those decisions will be confirmed in writing. A 9

10 template letter can be found in Appendix The written confirmation, which will be from the Chair of the Panel, should include: Date, time and venue of the hearing Who was present The nature of the allegations The decision of the Panel The reasons for the decision Reference to previous warnings if relevant The implications of the decision The duration of the sanction if appropriate The right of appeal under the CCG s Appeals Procedure (and enclose a copy of the Appeals Policy) 12. POSSIBLE OUTCOMES 12.1 The outcome will depend on the details of the hearing and may be as follows: a) No case to answer b) No formal action This may include the requirement for the individual to attend training or informal counselling sessions with their manager or other identified individual. c) Stage One: Formal Written Warning: Appropriate in cases involving offences of minor misconduct, or where attempts at counselling have failed to secure improvement. To remain live for 12 months, see also point 14. d) Stage Two: Final Written Warning: Appropriate where there is a current formal warning on file, or where serious misconduct is proven. To usually remain live for 24 months, see also point 14. In some instances of serious misconduct or repeated offences the panel may at their discretion issue a final warning to remain active in excess of 24 months. e) Stage Three: Dismissal: Appropriate in cases of gross misconduct, or may be where there is a current final warning on file. A member of staff may be summarily dismissed [without notice or a payment in lieu of notice] only in the event of gross misconduct. 10

11 13. HOW TO APPEAL AGAINST A DISCIPLINARY SANCTION OR DISMISSAL 13.1 Members of staff have the right of appeal against a formal sanction made at a formal hearing under the Disciplinary Procedure. A copy of the Appeals Policy will be enclosed with the letter confirming the outcome of the formal hearing Appeals against informal outcomes are not permitted. 14. HOW ARE RECORDS KEPT? 14.1 In instances of a formal sanction being taken all current correspondence relating to the disciplinary action, including any letters confirming the outcome will be kept on the individual s personal file for the duration that the sanction is live. 15. WHAT HAPPENS TO SPENT WARNINGS? 15.1 Once the live period of the warning is spent, all correspondence relating to the disciplinary action, including any letters confirming the outcome must be removed from the member of staff s personal file and destroyed Where it is in the public interest, information relating to spent warnings may be kept in accordance with the provisions of the CCG s Whistleblowing Policy. This information will normally be agreed by the individual, their representative, manager and Human Resources Department. 16. HOW WILL DISCIPLINARY CASES BY MONITORED? 16.1 All outcomes will be monitored to ensure that the policy and procedure is applied fairly and equitably and to ensure that no group is over represented through this process The Human Resources Department will collate and provide to the Governing Body, at least annually, monitoring information relating to disciplinary cases. This will include analysis of: The types of cases brought The outcomes 16.3 A breakdown of those members of staff who have cases brought against them by protected characteristics as in the Equality Act 2010 gender, ethnic origin, disability, age, religion, and sexual orientation, age, marriage & civil partnership, pregnancy and maternity where this does not breach confidentiality. 17. REVIEW 17.1 This policy and procedure will be reviewed after 2 years or earlier on the request of either staff or management 11

12 APPENDIX 1 DEFINITION OF TERMS 1. Minor Misconduct 1.1 Any infringement of the CCG s rules, regulations, policies or procedures as stipulated by the CCG s managers from time to time. 1.2 Any failure to meet the required standards of behaviour, conduct, performance or attendance which may be set out locally, in Professional Codes of Conduct or CCG s Policies and Procedures. 2. Serious Misconduct: For example Failure to respond to previous written warnings Prolonged or repeated acts of misconduct /Internet misuse Insubordination 3. Gross Misconduct 3.1 Behaviour of such a nature that the CCG is justified in no longer tolerating the continued presence at the place of work. These acts seriously breach contractual terms. Examples include: Serious racial, sexual and other forms of harassment Theft, fraud (including attempts to commit theft or fraud) or other criminal activities Deception Serious breaches of confidentiality Gross professional negligence or misconduct or misrepresentation Serious misuse of or malicious damage to CCG property or equipment Physical violence or bullying Deliberately accessing internet sites containing pornographic, offensive or obscene material Serious insubordination Bringing the organisation into disrepute Serious breach of Health and Safety rules Serious breach of confidence This is not an exhaustive list and there may be other acts of misconduct of similar gravity that would constitute gross misconduct. 12

13 APPENDIX 2 THE RIGHT TO BE ACCOMPANIED As stated in the ACAS Code as at March Workers have a statutory right to be accompanied by a companion at disciplinary meetings/hearings. The statutory right is to be accompanied by a fellow worker, a trade union representative, or an official employed by a trade union. A trade union representative who is not an employed official must have been certified by their union as being competent to accompany a worker. Employers must agree to a worker s request to be accompanied by any companion from one of these categories. Workers may also alter their choice of companion if they wish. As a matter of good practice, in making their choice workers should bear in mind the practicalities of the arrangements. For instance, a worker may choose to be accompanied by a companion who is suitable, willing and available on site rather than someone from a geographically remote location. To exercise the statutory right to be accompanied workers must make a reasonable request. What is reasonable will depend on the circumstances of each individual case. A request to be accompanied does not have to be in writing or within a certain timeframe. However, a worker should provide enough time for the employer to deal with the companion s attendance at the meeting. Workers should also consider how they make their request so that it is clearly understood, for instance by letting the employer know in advance the name of the companion where possible and whether they are a fellow worker or trade union official or representative. If a worker s chosen companion will not be available at the time proposed for the hearing by the employer, the employer must postpone the hearing to a time proposed by the worker provided that the alternative time is both reasonable and not more than five working days after the date originally proposed. The companion should be allowed to address the hearing to put and sum up the worker s case, respond on behalf of the worker to any views expressed at the meeting and confer with the worker during the hearing. The companion does not, however, have the right to answer questions on the worker s behalf, address the hearing if the worker does not wish it or prevent the employer from explaining their case. 13

14 APPENDIX 3 SUMMARY OF WHAT HAPPENS AT A FORMAL HEARING UNDER THE DISCIPLINARY PROCEDURE IO summarises key points of written Statement of Case and may call witnesses in presence of member of staff &/representative. 2. Disciplinary Panel questions IO and witnesses. 4. IO re-examines his or her witnesses on any matter referred to in their examination by members 3. Member of staff or representative asks questions of IO and witnesses. 5. Member of staff or their representative puts his or her case in presence of manager 7. IO has opportunity to ask questions of member of staff, member of staff s representative or member of staff s witnesses. 6. Disciplinary Panel question the member of staff, their representative or witnesses. 8. Member of staff or their representative re-examines witnesses. 10. Member of staff or representative sum up and make closing statement. 9. IO sums up & makes closing statement. 11. Adjournment while Panel reaches decision. 12. Decisions and reasons 14

15 APPENDIX 4 EXAMPLE OF NOTIFICATION OF DISCIPLINARY HEARING Dear Confirmation of Disciplinary Hearing I am writing to inform you that the investigation into the allegation that (who/what/when/where be as specific as possible)(needs to be the allegations confirmed to the member of staff) is now complete. From the report the decision has been made that there is a case for you to answer and you are therefore required to attend a disciplinary hearing. A copy of the investigation report is enclosed for your information(and an additional copy for the rep?). The meeting will be held as follows: Date: Time: Venue: The purpose of the formal disciplinary hearing is to decide whether or not disciplinary or any other appropriate action will be taken You will be given every opportunity to state your case, explain any mitigating circumstances or to contest the evidence by calling or questioning any witnesses. The meeting will be in the presence of (state name and job title) and myself. The management case will be presented by and will be called as a witness. Please let me know if you intend calling any witnesses yourself at least 2 days before the hearing. Should you wish to submit a response to this allegation to be used at the hearing you are able to do so. This must be submitted to myself within 5 working days of the date of this letter. The Disciplinary hearing has been established in accordance with the CCG s Disciplinary Policy and Procedure (a copy of which is enclosed) and therefore constitutes a formal hearing, the outcome of which may be a disciplinary warning and may (if appropriate) include dismissal. I would also like to take this opportunity to remind you that you are welcome to be accompanied by a companion at this meeting if you wish. If you, your representative or any witnesses you intend calling have any special requirements to enable you to attend this hearing please contact me and I shall make arrangements for this. Yours sincerely 15

16 APPENDIX 5 TEMPLATE OF DISCIPLINARY OUTCOME LETTER Dear Disciplinary Hearing Outcome I am writing to confirm the outcome of the disciplinary hearing held on. The meeting was held to consider the allegation that (who/what/when/where be as specific as possible). The panel comprised of (state name and job title) and. who presented the Management Case. You were present and accompanied by. The following individuals were called as witnesses: - - The following was established during the course of the hearing: - Outline key points of the hearing Having listened very carefully to all the evidence presented the panel concluded that (provide full details on outcome and action to be taken). You have the right of appeal against this decision if you wish. Any such appeal should be made in writing within 5 days of the date of this letter in accordance with the CCG s Appeals Policy (attached). Yours sincerely Chair of the panel 16

17 APPENDIX 6 COVER SHEET FOR DISCIPLINARY HEARING Panel Details: 1. Name. Title Chair 2. Name.. Title.. 3. Name.. Title.. Member of staff Details: Name. Title. Representatives Details: Name.. Title. Key Dates: 1. Date member of staff informed of allegation. 2. Date investigation completed 3. Date of Disciplinary Hearing. Allegation as stated: 17

18 APPENDIX 7 ISSUES TO BE CONSIDERED WHEN DECIDING ON DISCIPLINARY OUTCOME The panel may wish to consider the issues in the following list when deciding upon a suitable disciplinary outcome. Please note this list is not exhaustive. 1. What evidence is there to support the allegation? 2. Given the evidence available, how likely is it that the allegation / incident as described actually occurred? 3. Are there any other issues that have come to light that should be taken into consideration (e.g. existing live warning on file)? 4. What level of misconduct is believed to have occurred (minor, serious or gross)? 5. If no disciplinary action is taken, how likely is it that there would be a repetition? 6. Is this a first offence? 7. Have similar circumstances occurred within the CCG previously and if so what action was taken then? 8. Were there any mitigating circumstances? 18

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