Staff Disciplinary Policy

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1 St Crispin's School Policy Staff Disciplinary Policy Version Date Changes or reason for Update Date Approved Number Created V First Issue 1999 V2 04/ 2005 New Issue from the LEA 04/2005 V3 02/2007 Reviewed and updated format 03/2007 V4 02/2008 Reviewed by Personnel Committee 05/2009 V5 04/2010 Complete re-write to align with new LA 05/2010 policy V6 05/2012 Reviewed no changes 05/2012 V7 06/2014 Minor changes to specify school rather than WBC procedures 07/2014 Next Review of this Policy is due 05/2016 Policy Name: Disciplinary Policy Version: V7 Issued : June Page 1 of 16

2 Disciplinary Process Flow Chart Informal Stage - meeting with employee 1 st Formal Disciplinary Yes Hearing There is an allegation to answer Formal Stage Stage -Investigation - Investigati on No No allegation to answer the matter is dropped Is there a risk of: Interference from the employee? A continued risk to customers? Yes Suspend from from duties/tempor with pay or temporary re- redeployment - inform employee. Outcome may be Formal Written Warning Very serious breach of conduct or failure to change behaviour 2 nd or (1 st ) disciplinary hearing. Employees have the right to be accompanied Outcome may be Final Written Warning Where conduct does not warrant dismissal other sanctions should be considered. Dismissal for misconduct will normally be with pay in lieu of notice. Summary dismissal for gross misconduct will normally effected immediately and without pay in lieu of notice. Allegation of gross misconduct or if conduct remains unsatisfactory employee required to attend 3rd disciplinary hearing. Employees have the right to be accompanied See also Appendix 1. All employees have the right to appeal at every stage of the disciplinary process against the reasonableness of the decision taken at a formal hearing Policy Name: Disciplinary Policy Version: V7 Issued : June Page 2 of 16

3 1. Policy Statement 1.1. The aim of this Disciplinary Policy is to ensure that there is a fair and consistent approach to the enforcement of standards of conduct affecting employees of St Crispins School. It is based on the Wokingham Borough Council policy. It should not be viewed primarily as a means of imposing sanctions but of encouraging improvement in individual behaviour. 2. Purpose 2.1. The purpose of this policy is to ensure that employees observe all policies and expected practice. These include specifically the Code of Conduct Health and Safety, Financial Regulations as well as professional capability A distinction is drawn between conduct meaning breaking disciplinary rules and capability meaning ability to perform to the required standards. Where it has been identified that an employee is experiencing difficulties in performing adequately then the guidelines within the Capability Policy should be used. 3. Scope 3.1. This policy applies to all employees of the school. 4. Equal opportunities 4.1. The Disciplinary Policy will be applied fairly and consistently to all staff regardless of gender, race, colour, marital status, national or ethnic origin, nationality, disability, sexual orientation, age, religion, status or number of hours worked or on any other grounds. For example, it is not unlawful to take disciplinary action against any employee including those from an ethnic background or a pregnant employee as long as it is unconnected with race or the pregnancy. It would be unlawful to dismiss someone because of race or for some reason related to an employee s pregnancy. In addition, if an employee is dismissed during pregnancy or maternity leave she has an automatic right to a written statement giving reasons for the dismissal. 5. The Disciplinary Procedure 5.1. When to use it The Disciplinary Policy and Guidance deals with breaches of conduct and unsatisfactory behaviour. The Capability Policy deals with issues of capability, Policy Name: Disciplinary Policy Version: V7 Issued : June Page 3 of 16

4 relating to ill health and unsatisfactory work performance. It is important to ensure that issues of capability are not dealt with under this policy. The following examples are capability issues, and should be dealt with under the provisions of the Policy and Guidance for Capability Ill Health & Unsatisfactory Work Performance. Short term, irregular or persistent periods of absence relating to ill health Long term absence relating to ill health where there may be little or no chance of an early return to work Poor work performance due to ill health Failure to achieve the standard of work performance notwithstanding advice, training, guidance and supervisory meetings Sanctions and Factors that need to be considered When deciding whether a disciplinary penalty is appropriate and what form it should take, line managers must bear in mind the need to act reasonably and consistently at all times. Factors that should be considered are: The extent to which standards have been breached Precedent i.e. has this particular breach happened before and what was the penalty; will any precedent be set for the future? The employee s employment record The employee s job role and training The employee s length of service Special circumstances that may impact on the severity of the sanction No action may be taken against an appointed or elected trade union representative or officer without prior consultation with the relevant union s Regional Office 5.3. The right to be accompanied at a Formal Disciplinary Hearing Employees have a statutory right to be accompanied at a formal disciplinary hearing by a work colleague, staff representative or trade union representative but not at the informal stage So far as is reasonably possible within the needs of the school, Union/staff representatives or colleagues should be released to attend such hearings. Policy Name: Disciplinary Policy Version: V7 Issued : June Page 4 of 16

5 5.4. The right of appeal An employee can appeal against a disciplinary decision made following a formal hearing; (this does not include an informal warning which is not part of the formal disciplinary procedure). An employee must also be informed of his or her right of appeal, how to make an appeal and to whom Where an employee raises a grievance during the disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. For example: bias is alleged in the conduct of the disciplinary meeting there is possible discrimination. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently Keeping written records Managers are advised to keep a written record of each stage of the disciplinary process including informal discussions. Records should include: local and corporate induction supervisory meetings the complaint against the employee the employee s response decision to suspend outcome of investigation actions taken and the reason for those actions details of appeals details of any grievances raised during the disciplinary procedure notes of any formal hearings Examples of misconduct The following are examples of misconduct and gross misconduct. The list is not exhaustive: Misconduct: Unauthorised absence Policy Name: Disciplinary Policy Version: V7 Issued : June Page 5 of 16

6 Negligence Inadequate standards of work caused by carelessness Careless damage to or wastage of school property and/or equipment Failure to carry out reasonable instructions Insubordination Improper behaviour or conduct towards a member of the public Disregard of safety instructions Aggressive behaviour towards colleagues/members of the public/clients or user Harm to client/user/employee or member of the public Timekeeping offences Breach of the Code of Conduct for Employees Improper disclosure of confidential information Knowingly aiding an offence against discipline Smoking in prohibited areas Harassment and/or bullying Breach of the guidelines for the e mail/internet Breach of the equality/discrimination policy Gross Misconduct Theft of Council, staff or public property Fraud and deliberate falsification of records Deliberate damage to or neglect of Council property and/or equipment Serious insubordination Serious harassment and/or bullying Deliberate disregard of the Equal Opportunities Policy Deliberate disregard of other Council policies/legislation which may bring the authority into disrepute Physical violence (particularly to a child) Serious harm to client/user/employee or member of the public Bringing the Council into serious disrepute Serious incapability whilst on duty brought on by alcohol or non prescribed drugs Serious breach of the Code of Conduct for employees. Serious negligence which causes or might cause unacceptable loss, damage or injury Serious infringement of health and safety rules Serious breach of confidence. Serious breach of the Council s approach to equality. Serious of the Council s guidelines for the e mail/internet Policy Name: Disciplinary Policy Version: V7 Issued : June Page 6 of 16

7 The above are only examples and advice should be sought from the Human Resources Consultant most cases are different, or will have different circumstances. 6. Informal Stage: Informal warning In most cases where a minor breach of conduct has occurred, managers should take an informal approach before any formal action is considered e.g. informal advice, coaching, training or counselling Period of review the employee should be clearly informed of the standards expected and if necessary over what period it will be reviewed. The period and timescale for review can only be decided on a case by case basis. Where, after an informal discussion, the individual s conduct continues to fall below the required standards the manager should proceed to the formal stage. The line manager should keep a written note of any discussions/reviews so that if the employee fails to improve or maintain this improvement, he or she can refer to this conversation when beginning any formal procedure The line manager should give a copy of the notes/improvement plan to the employee and ask the employee to sign to show they have received a copy and understand If it becomes clear during the informal/investigative interview that formal disciplinary action should be taken then the interview must be terminated and a formal hearing arranged at which the individual would have the right to be accompanied. The line manager must not initiate the formal process during the informal interview For allegations relating to children and young people, refer to the Children s Services Safeguarding Policy and the Referral and Assessment Team on Tel: Where there are concerns about abuse of vulnerable adults please refer to careservices/community care library/?assetdet=5118&category=526. Advice can also be sought from the Adult Safeguarding Service. 7. Disciplinary Investigation It is not always necessary to hold an investigatory hearing; however, if a hearing is held, give the employee advance warning and enough time to prepare. The line manager should carry out a preliminary enquiry with discretion and sensitivity to confirm that the allegation is justified. Where the facts of the case appear to call Policy Name: Disciplinary Policy Version: V7 Issued : June Page 7 of 16

8 for formal action then a full investigation must take place and the employee must be informed. The manager will nominate a senior trained colleague to carry out the investigation. This should normally include: Establishing the facts promptly and carefully making notes of any statements or obtaining statements where appropriate Allowing the employee time to give an explanation Deciding whether it is necessary to recommend suspension for a brief period whilst the investigation is carried out the manager must clearly record the decision to suspend The investigating manager should ensure other people being interviewed are aware of why they are being interviewed and that any information obtained may be used in the course of any succeeding disciplinary hearing. Notes should be taken of all interviews and any witnesses should sign and date witness statements Where there are financial/fraud implications the line manager including Headteachers, must immediately inform WBC senior fraud office of any alleged irregularity. The investigation must be carried out under their guidance Where complaints are from members of the public or where they have witnessed incidents, the investigating manager should take all reasonable steps to establish the facts and take statements wherever possible. However, clients/users/members of the public would not normally be expected to attend a formal hearing. Particular care must be taken to maintain confidentiality, see the Policy and Guidance for Conduct Where the alleged misconduct would, if proved, be a criminal offence, or the Police are already involved advice should be sought from the Head of Human Resources, the Monitoring Officer and if appropriate the WBC Senior Fraud Officer before starting an investigation Suspension Suspension from work does not imply guilt and is not intended as a sanction but as a precaution. Before suspending an employee approval must be given by the Headteacher Employees should normally only be suspended in serious cases where there is: Policy Name: Disciplinary Policy Version: V7 Issued : June Page 8 of 16

9 No possibility of temporary redeployment to another area A risk that the presence of the individual may hinder or influence the investigation A danger the alleged misconduct might happen again. Continued risk to pupils, staff, parents or clients In cases of alleged gross misconduct or an issue relating to some other substantial reason an employee will normally be suspended with full pay pending the outcome of the investigation and where appropriate, the disciplinary hearing. The period of suspension should be as brief as possible Where an employee is to be suspended, if possible he or she should be invited to a meeting and informed: The reason for the suspension and given an opportunity to respond That he or she must not attend work or communicate with colleagues on work related matters (except Trade Union or other appointed staff representatives) That he or she may be interviewed as part of the investigation which may result in disciplinary action being taken Reminded of his/her right to representation during the investigation The length of the initial period of suspension. This must be confirmed in writing the letter of suspension must be signed by the Headteacher and sent to the employee by hand or recorded delivery If suspension lasts longer than 4 weeks it should be reviewed thereafter at regular intervals. The employee should be informed of the decision to continue suspension in writing after each review. The employee should be offered the name of a contact with no involvement in the case if he/she requires further information The employee must make him or herself available for interviews during the procedure and must not take alternative employment while the contract of employment still applies. Where secondary employment has already been approved, this may continue, except where potential conflict of interest is the cause of the suspension The line manager will manage the individual s place of work carefully and sensitively when a member of the team is suspended. Policy Name: Disciplinary Policy Version: V7 Issued : June Page 9 of 16

10 Where the manager finds after a full investigation that there is no case to answer the matter should be dropped or dealt with informally. The suspension must be lifted and the employee must return to work as soon as possible. Line managers should arrange the employee s return to ensure there is minimum disruption to the team and the individual If an employee starts a period of sick leave after disciplinary allegations, during a disciplinary investigation or a period of suspension this will not prevent the operation of the disciplinary procedure. It is in the interests of the school and the employee that any disciplinary allegations are resolved within a reasonable timescale. At least two attempts will be made to convene a hearing that the employee can attend. If the employee is still unable to attend, the hearing can proceed with a representative of his/her choice in attendance. If the employee does not wish any other person to attend as his/her representative the hearing can proceed without the presence of the employee or representative. Employees must provide evidence of the reason for absence Disciplinary Proceedings/Criminal Prosecutions The issues involved in a criminal prosecution and internal disciplinary proceedings in respect of an employee s criminal behaviour, will not necessarily be the same. A criminal conviction normally means the employee s guilt is proven, which may then be sufficient grounds for dismissal, depending on the nature of the crime. Alternatively an acquittal in court does not necessarily mean that a decision to dismiss the employee will be unfair. Disciplinary proceedings and decisions do not have to be delayed pending the court s decision, although there may be exceptional cases where the result of the court (as long as it is imminent) may be helpful to the Council in making a decision Because of possible Police detainment or other restrictions on the employee, it may be necessary for disciplinary hearings to take place and decisions to be made without his/her presence. Where this is the case, the employee has the right to have a trade union/staff representative or work colleague, attend to represent them In deciding whether to invoke the disciplinary procedure against an employee for suspected or known criminal conduct outside the scope of employment at the school the following questions should be considered: Does the alleged offence indicate a risk to security, customers, clients, or other employees or those in the employee s care? Policy Name: Disciplinary Policy Version: V7 Issued : June Page 10 of 16

11 Could the employee be reasonably redeployed to a position where his or her particular offence will not affect the service e.g. an employee whose driving licence has been withdrawn to a job that requires no driving? Is the offence incompatible with the employee s job role? Does the length of any custodial sentence prevent the employment contract from continuing? Does the crime damage the relationship of trust that is fundamental to the employment contract? Does the crime damage the school s image or reputation? 8. Formal Stage Disciplinary Procedure 8.1. If, after the informal stage or outcome of an investigation, the employee s conduct does not meet acceptable standards, the employee should be notified in writing that he/she will be required to attend a disciplinary hearing. The notification should contain enough information about the alleged breach of conduct and possible consequences to enable the employee to prepare for the hearing. He/she should be given a reasonable opportunity to collect and present evidence. All stages of the formal disciplinary hearings will be held by the line manager or a more senior manager with advice from the HR provider A note relating all formal warnings will be retained on the individual s personal file. Warnings will normally be disregarded for disciplinary purposes after a period of 12 months (this may be extended to 2 years in exceptional circumstances) Adjournment before decision the hearing may be adjourned to allow time for proper consideration before a decision is taken about a disciplinary penalty. It also allows for further checking of any issues raised, particularly if there is any dispute over facts Formal Written Warning (Stage 1) If at the end of the hearing there is a belief that disciplinary action is appropriate, the manager will issue a formal written warning giving details of the complaint, the improvement or change in the behaviour required and the period allowed for this. The manager should also inform the employee that a final written warning may be considered if there is no satisfactory improvement or change. The employee must also be told: Policy Name: Disciplinary Policy Version: V7 Issued : June Page 11 of 16

12 That the formal written warning is the first stage of the disciplinary procedure That a note of the formal written warning will be kept on the individual s personal file and taken account of for further disciplinary action If he/she fails to improve or there is a recurrence of misconduct irrespective of type of offence further disciplinary action may be taken. That the employee has the right of appeal As with all stages of this procedure the warning must always follow an investigation and an interview with the individual concerned Final Written Warning (Stage 2) Where there is still a failure to improve or change behaviour or the breach of conduct is very serious the employee will be required to attend a second (or first at this stage) disciplinary hearing. If at the end of the hearing there is a belief that disciplinary action is appropriate the manager will issue a final (or first and final) written warning to the employee. The letter will give details of the complaint; the manager should also inform the employee that if there is no improvement or change this could result in dismissal or advised of some other action short of dismissal. The employee should also be referred to his or her right of appeal Dismissal (Stage 3) If conduct remains unsatisfactory and the employee still fails to reach the required standards or there is an allegation of gross misconduct the employee will be required to attend a stage 3 disciplinary hearing and must be informed that the outcome may be dismissal. If at the end of the hearing there is a belief that disciplinary action is appropriate the employee may be dismissed (with or without notice). The employee may be dismissed summarily ie. without a period of notice if the circumstances justify this course of action ie. gross misconduct For dismissal to be fair the reason must be allowed by law as follows: Capability or qualifications of the employee (see the Policy and Guidance for Capability Conduct of the employee (see the Policy and Guidance to Conduct and Personal Behaviour) Redundancy (see the Policy and Guidance for Redundancy) Contravention of a duty or restriction an employee cannot continue to work in his/her current position without contravening a legal duty or restriction (statutory ban) e.g. where he or she has been banned from Policy Name: Disciplinary Policy Version: V7 Issued : June Page 12 of 16

13 driving and a valid driving licence is an essential qualification. However an employer is still expected to try to find alternative employment within the organisation. Some other substantial reason e.g. dismissal where a partner/relative is working in a line management position (managers must first seek alternative employment discuss with HR Provider) or for a potential breach of trust and/or where there is a danger of a breach of confidentiality. These are examples: there may be other substantial reasons for dismissal Some Other Substantial Reason In exceptional circumstances the manager may believe that there has been such a serious breakdown of trust and confidence or another extremely serious issue which does not fall within the following three categories, (conduct, capability or redundancy) but is for some other substantial reason Dismissal for some other substantial reason may only be justified in exceptional circumstances. (It must not be used as a substitute or to fast track matters that should appropriately be addressed under other procedures e.g. disciplinary or capability). In these circumstances the procedure will begin at this third and final stage. The facts of the case must be established and the action must be fair in the circumstances. The employee must be given a chance to present their case at the hearing see Appendix 1 for timings and the process. This is based on the ACAS Code of Practice The manager must show that he or she has tried to resolve the problem through other procedures e.g. supervisory hearings, appraisals, counselling, training etc. Any action should not be a surprise to the employee. Where an employee believes that there has been a breach of trust and confidence by the employer the Grievance Procedure should be used Some other substantial reason as a reason for dismissal may only be used when approved by the Headteacher with advice from Human Resources Provider and normally after consulting the chair of governors Dismissal for misconduct (not regarded as gross misconduct) will normally be with pay in lieu of notice. Summary dismissal for gross misconduct will normally be effected immediately (after a thorough investigation and disciplinary hearing) and without pay in lieu of notice Other penalties Policy Name: Disciplinary Policy Version: V7 Issued : June Page 13 of 16

14 Where the severity of the employee s misconduct does not warrant dismissal consideration should be given to the following sanctions: Where appropriate, transfer the employee to another area of work Suspension without pay the length of suspension is dependent on the seriousness of the offence up to a maximum of 5 working days without pay Loss of increment Where appropriate impose a financial penalty e.g. repaying a financial loss borne by the school demotion The decision to dismiss should be confirmed in writing. Under the Employment Rights Act 1996 an employee with one year s continuous service or more has a right on request to a written statement of particulars of reasons for dismissal The Appeal An employee can appeal at any formal stage of the disciplinary process i.e. Formal Written Warning and Final Written Warning against the reasonableness of the decision taken at the hearing; (but not the informal stage). The specific grounds for appeal must be made by the employee in writing to manager 2 levels above within 5 working days of receipt of the letter confirming the outcome of the disciplinary hearing and the action to be taken Appeals against dismissal must be made to the Clerk of governors within 5 working days of the outcome of receiving notification of the outcome of the hearing. Policy Name: Disciplinary Policy Version: V7 Issued : June 2014 Page 14 of 16

15 Appendix 1 Dismissal for Some Other Substantial Reason Based on ACAS Code of Practice 1. Some Other Substantial Reason (SOSR) as a reason for dismissal provides employers with a way of fairly dismissing an employee for reasons that do not fall into other categories (i.e. conduct, capability, redundancy and legal restriction). There is no official list of reasons; it would be impossible to list all circumstances to justify an employer dismissing an employee For a dismissal under SOSR to be fair, the reason put forward must be substantial and not trivial, and must therefore be capable of amounting to a reason which could justify dismissal The grounds must be substantial, such that dismissal is a reasonable response in the circumstances There must be evidence that the employer has investigated thoroughly and where appropriate, made every effort to solve the problem in another way There must be evidence that the impact on or risk to the employer s business is or could be substantial. Step 1 Statement of grounds for action and invitation to hearing: The manager must set out in writing the employee s alleged conduct or characteristics, or other circumstances, which lead them to contemplate dismissing or taking disciplinary action against the employee and also inform the employee that a possible outcome of the hearing could be dismissal. The manager must send the statement or a copy of it to the employee and invite the employee to attend a hearing to discuss the matter. Step 2 The hearing: The hearing must take place before action is taken, except in the case where the disciplinary action consists of suspension. It must not take place unless: 1. The manager has informed the employee what the basis was for including in the statement under Step 1 the ground or grounds given in it, and Policy Name: Disciplinary Policy Version: V7 Issued : June Page 15 of 16

16 2. The employee has had a reasonable opportunity to consider his/her response to that information. 3. The employee must take all reasonable steps to attend the hearing 4. After the hearing, the manager must inform the employee of the decision and notify him/her of the right to appeal if he/she is not satisfied. Step 3 The Appeal Dismissals defended under the heading of SOSR are required to satisfy the test of reasonableness in the same manner as dismissals for other reasons i.e. was dismissal a reasonable response in the circumstances? Policy Name: Disciplinary Policy Version: V7 Issued : June Page 16 of 16

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