Not applicable. 2.1 That Management Review Committee agree the proposed procedure for implementation.

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1 AGENDA ITEM 4 REPORT TO: Management Review Committee DATE: 29 January 2014 PORTFOLIO: REPORT AUTHOR: TITLE OF REPORT: EXEMPT REPORT (Local Government Act 1972, Schedule 12A) No Cllr Joan Smith - Deputy Leader Kirsten Burnett, Head of HR Draft Disciplinary Procedure Not applicable KEY DECISION: No If yes, date of publication: 1. Purpose of Report 1.1 To propose a draft Disciplinary Procedure, which has previously been considered by Management Team and which has been through formal consultation with the Trade Unions. 2. Recommendations 2.1 That Management Review Committee agree the proposed procedure for implementation. 2.2 That Management Team agree the length of time which should apply to disciplinary warnings. 3. Reasons for Recommendations and Background 3.1 The current disciplinary procedure is now seven years old and there have been issues raised in terms of its practical application as a result of the small number of serious cases which have been dealt with under the procedure. 3.2 As a result, discussions took place with a group of managers from different services and local union reps in 2012: a customer first analysis was undertaken which identified some key areas where it would be helpful to revise the procedure. 3.3 The areas identified which required some amendments to the current procedure (after discussions with managers as above) were in relation to removing a formal preliminary Page 1 of 5

2 investigation stage, including the option for mediation in appropriate cases, reducing some time limits specified, increasing the length of written/final warnings, removing examples of misconduct/serious misconduct, more clarity and examples on what constitutes gross misconduct, including a damage/recompense element, expanding on the role of a witness and amending the order of appeals so that the appellant goes first (explaining why they wish to appeal) rather than management. 3.4 The managers and union reps initially involved in the CFA commented on the proposed draft and changes have been made in response to these comments. Further changes have been made through subsequent consultation with unions, staff, managers and Management Team. 3.5 It is envisaged that by updating the procedure, managers will have more clarity and guidance to assist them when dealing with disciplinary issues and employees will be clear on matters which would be regarded as gross misconduct issues. 3.6 Following the consultation period, there remains an issue of significant disagreement with Unison. This relates to the proposed times that warnings will remain live, that is, where an existing warning will be taken into account in any subsequent decision, even if it is for an unrelated matter. Acas guidelines do not specify the length of time that must be used, just that it needs to be specified within the organisation s procedure. Unison feel that the lengths of time should not be lengthened. The current and proposed timescales are shown in the table below: Existing Proposed Verbal warning 6 months 6 months Written warning 9 months 12 months Final written warning 12 months 24 months 3.7 The HR team and the managers consulted generally agree that the timescale should be longer. A final written warning is given for a disciplinary offence where: there is already a warning on file relating to a previous offence; the offence is considered serious; or the offence is considered to constitute gross misconduct which would justify dismissal but there are some mitigating circumstances which lead the panel to issue a final written warning as an alternative. 3.8 Looking at other Lancashire councils, there is a broad split between those using 12 months for a final warning and those using 18 months: a small number use 24 months. Increasing the time from the current 12 would also give a greater differentiation between a written warning and a final written warning. The options for the committee could include: a) leaving the time limits as they are at present; b) agreeing the proposed time limits set out in the draft procedure; c) choosing a new time limit in between the 2, such as 18 months (6 / 12 / 18 for the 3 types of warning). Page 2 of 5

3 3.9 Unison has been invited to attend the meeting to put their case to the committee. 4. Alternative Options considered and Reasons for Rejection 4.1 The current procedure is still fit for purpose, complies with the ACAS guidelines and could be retained. However, it would be beneficial to update this in line with the feedback we have received. The review of the procedure is taking place alongside our Performance and Grievance procedures. 5. Consultations 5.1 Consultation has taken place with Trade Unions and staff. The draft procedure was developed with the support of a group of service managers and union representatives. 6. Implications Financial implications (including any future financial commitments for the Council) Legal and human rights implications Assessment of risk Equality and diversity implications A Customer First Analysis should be completed in relation to policy decisions and should be attached as an appendix to the report. None. We are required to have a procedure in place which is consistent with ACAS guidelines. Failure to do so risks claims being made and upheld at an employment tribunal. Attached as Appendix Local Government (Access to Information) Act 1985: List of Background Papers 7.1 Management Team Report 18 September ACAS Code of Practice on Discipline and Grievance: 8. Freedom of Information 8.1 The report does not contain exempt information under the Local Government Act 1972, Schedule 12A and all information can be disclosed under the Freedom of Information Act Page 3 of 5

4 Appendix 1: Hyndburn Borough Council Customer First Analysis Disciplinary Policy Purpose The purpose of the policy is to outline the expected standards of conduct and to outline what will happen if the conduct of employees falls below that what is expected. The policy is designed to benefit employees and managers by providing a fair and consistent process for dealing with conduct matters in a timely manner. It also aims to support employees to make the necessary changes to improve conduct. It also ensures compliance with employment legislation. Managers in consultation with HR are responsible for applying the policy. Inconsistent or bias application of the policy would prevent the effectiveness of the policy from a corporate perspective. This would also put the council at risk if employment legislation is breached. Evidence The application of the policy will be monitored. Evidence on the fairness/ consistency of the policy can also be gathered through complaints and appeals against its application and sanctions. Although HR are aware of those issues which are dealt with formally in terms of the policy, HR may not be informed of any informal discussions that take place between managers/employees therefore these cannot be monitored. This could be included in the policy to ensure such details are kept centrally (in HR). Information on its application is broken down into the Equality groups and reflected in the workforce plan. This information is widely available to stakeholders, managers/trade union and staff. Impact Through equality monitoring, any trends in the disproportionate application of the policy can be identified and dealt with as currently. Whilst no specific negative impact has been identified, continual monitoring is essential in order to deal with any potential negative impact. Page 4 of 5

5 Actions Continual monitoring and dissemination of the application with the equality groups and reflected in the workforce report. Consultation with Managers and Trade Unions (eg, through LJCC) on its consistent application and review the reasons for appeals/complaints regarding its application. Ensure that reasonably adjustments are considered for those with protected characteristics. For example, an exception was made in allowing a friend to accompany and employee to act as interpreter because English was not his first language. This ensures that any disadvantage is addressed appropriately. This can be reinforced within a revised policy and through training for managers. Training for Managers on the consistent application of the policy. Remind Managers of the importance of notifying HR of any informal actions to ensure consistency. Identify, through competency framework and performance development reviews, any gaps in managers knowledge and provide appropriate training. Joanne Wolfendale, December 2012 Page 5 of 5

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