DISCIPLINARY PROCEDURE

Transcription

1 DISCIPLINARY PROCEDURE 1. Purpose and Scope 1.1 The Company s procedure is designed to help and encourage all workers to achieve and maintain standards of conduct, attendance and job performance. The Company s rules in force at any time and this procedure apply to all workers. The aim is to ensure consistent and fair treatment for all. This procedure is not contractual, but is intended as a statement of current Company policy and commitment to operate a fair and non-discriminatory procedure in relation to all its workers taking into account the recommendations of ACAS from time to time. The Company therefore reserves the right to amend the procedure as necessary to meet any changing requirements. 2. Principles 2.1 The procedure applies to all workers and is concerned with misconduct and gross misconduct, but sub-standard performance will be treated in the same manner as misconduct after reference has been made to the appropriate Company Capability Procedure. 2.2 At every stage in the procedure the worker will be advised of the nature of the complaint against him or her. Where possible, the worker will be informed of all relevant evidence before any hearing and will be given the opportunity to state his or her case before any decision is made. 2.3 Disciplinary matters will be dealt with without undue delay. 1

2 2.4 At all stages the worker will have the right to be accompanied by a fellow worker or a certified representative of a trade union (if any, see para. 3 below) during the disciplinary interview. 2.5 No disciplinary action will be taken until the case has been properly investigated. 2.6 No worker will be dismissed for a first breach of discipline except in the case of gross misconduct where the penalty will normally be dismissal without notice or payment in lieu of notice. 2.7 When deciding whether a disciplinary penalty is appropriate and what form it should take, the Company will bear in mind the need to act reasonably in all the circumstances. Factors which might be relevant include, the extent to which standards have been breached, precedent, the worker s general record, position, length of service and special circumstances that might make it appropriate to adjust the severity of the penalty. 2.8 A worker will be given an explanation for any disciplinary action and will have the right to appeal against any disciplinary penalty imposed. In the event that disciplinary action is taken the worker will be informed of: The standards of conduct or work performance expected and the timescale for any improvement to be made; The consequences of failing to improve; The period for which any warning will be kept on the worker s personnel file for disciplinary purposes; 2

3 Details of the appeal procedure. 2.9 A copy of the Company s written record of any disciplinary action taken will be supplied to the worker concerned on request. Details of proceedings, witness statements and records will be kept in confidence on the worker s personnel file. 3. The right to be accompanied at Disciplinary Hearings 3.1 Workers have a statutory right to be accompanied by a fellow worker or certified trade union official where they are invited or required to attend certain disciplinary (excluding informal interviews or counselling sessions which do not result in any disciplinary action) or grievance hearings and when they make a reasonable request to be accompanied. If it becomes clear during the course of an informal or investigative interview that formal disciplinary action may be needed then the interview should be terminated and a formal interview convened at which the worker may be accompanied. 3.2 The certified trade union official does not have to be from a recognised union (although if a union is recognised in the workplace it is good practice to select an official from that union) and does not have to work for the Company. The trade union official must be a full time official employed by a trade union or a lay trade union official reasonably certified in writing as having received training in acting as a worker s companion at such hearings. 3.3 In making their request, workers must bear in mind that it may not be reasonable to insist on a colleague accompanying them whose presence would prejudice the hearing or who might have a conflict of 3

4 interest. Nor would it be sensible for a worker to request accompaniment by a colleague from a geographically remote location when someone suitably qualified is available on site. 3.4 Where the chosen companion cannot attend on the proposed date of the hearing, the worker can offer an alternative time and date (having regard to the availability of the relevant manager) provided that it is reasonable and falls before the end of the period of five working days beginning with the first working day after the day proposed by the Company. It will not be reasonable to ask for a new date for the hearing where it is known that the manager will be on holiday or away on business unless it is possible for someone else to act for the manager at the hearing. The timing of any alternative hearing should be convenient to both the Company and the worker. 3.5 The accompanying person has a right to address the hearing but not to answer questions on the worker s behalf. 3.6 For avoidance of doubt, the Company reserves the right to nominate a person to attend the hearing to take notes. 4. The Procedure 4.1 When a disciplinary matter arises, the relevant manager should establish the facts promptly before memories fade and, where appropriate, obtain statements from the relevant witnesses. Having investigated the matter, the manager will decide whether to drop the matter, arrange informal counselling or arrange for the matter to be dealt with under the disciplinary procedure. 4

5 4.2 Where managers issue warnings they need to ensure that problems are discussed with the objective of encouraging and helping workers to improve. It is important that the worker understands what needs to be done, how performance or conduct will be reviewed and over what period. Workers should also be made aware of the action that will be taken if they fail to improve their performance or conduct. 4.3 In certain circumstances, for example in cases involving gross misconduct, where relationships have broken down or where it is considered there are risks to the Company s property or responsibilities to other parties, consideration should be given to a brief period of suspension with pay while an investigation is conducted. Such a suspension should only be imposed after careful consideration and should be reviewed to ensure that it is not unnecessarily protracted. It should also be made clear that the suspension is not considered as a disciplinary action. 4.4 Before any disciplinary decision is reached or action is taken, there should be a disciplinary hearing at which the worker has the opportunity to state their case and to answer the allegations that have been made. Wherever possible, the hearing should be arranged at a mutually convenient time and the worker should be advised of their right to be accompanied by a fellow worker or trade union official (see para. 3 above). 4.5 Employees should note that as part of the disciplinary process, managers retain the right to hold private discussions. This is in order to have a full and open debate about the circumstances leading to, and raised in the disciplinary hearing. Employees should note that this would in no way unduly prejudice the outcome of any hearing. 5

6 5. Disciplinary Action 5.1 Minor faults will be dealt with informally (i.e. not part of the formal disciplinary procedure) but where the matter is more serious the following procedure will be used:- Stage One First Warning 5.2 Oral Warning In the case of minor infringements or if conduct or performance does not meet acceptable standards the worker will normally be given a formal ORAL WARNING by the equity partner responsible for the office concerned. He or she will be advised of the reason for the warning, that it is the first stage of the disciplinary procedure and of his or her right of appeal. A brief note of the oral warning will be kept on the worker s personnel file but it will be disregarded for disciplinary purposes after 12 months, subject to satisfactory conduct and performance. 5.3 Written Warning If the infringement is regarded as more serious, the offence is a serious one, or if a further offence occurs, the equity partner responsible for the office concerned will give them a WRITTEN WARNING. The written warning will give details of the complaint, the improvement or change in behaviour required, the timescale allowed for this and the right of appeal. The warning will also inform the worker that a final written warning will be considered if there is no sustained satisfactory improvement or change in behaviour. A copy of this written warning will be kept on the worker s personnel file but it will be disregarded for disciplinary purposes after 12 months, subject to satisfactory conduct and performance. 6

7 Stage Two Final Written Warning 5.4. If there is still a failure to improve and/or conduct or performance is still unsatisfactory, or if the misconduct is sufficiently serious to warrant only one written warning but insufficiently serious to justify dismissal (in effect both first and final written warning), a FINAL WRITTEN WARNING will normally be given to the worker by the Managing Partner and one other Equity Partner. This will give details of the complaint, will warn that dismissal (or some action short of dismissal) may result if there is a failure to improve satisfactorily or modify behaviour and will advise of the right of appeal. A copy of this final written warning will be kept on the worker s personnel file but it will be disregarded for disciplinary purposes after 12 months (in exceptional cases the period may be longer) subject to sustained satisfactory conduct and performance. Stage Three Dismissal 5.5 If conduct or performance is still unsatisfactory or the worker still fails to reach the prescribed standards, DISMISSAL will normally result. Only the Equity Partners can take the decision to dismiss. The worker will be provided, as soon as reasonably practicable, with reasons for dismissal, the date on which the contract between the parties will terminate, the appropriate period of notice or pay in lieu of notice. The worker will also be provided with information about the right of appeal, including how to make the appeal and to whom. 5.6 Employees with one year s continuous employment or more have the right, on request, to have a written statement of particulars of reasons for dismissal. 5.7 Demotion, loss of seniority, loss of increment, disciplinary suspension without pay for up to five working days or disciplinary transfer 7

8 (provided these are provided for in the contract between the parties) will be considered, as an alternative to dismissal, in appropriate cases. 6. Grievances 6.1 In the course of a disciplinary case, a worker might raise a grievance about the behaviour of the manager dealing with the case. Where this happens, and depending on the circumstances, it may be appropriate to suspend the disciplinary procedure until the grievance can be considered. Consideration will be given, where possible, and/or appropriate, to bringing in another manager to deal with the disciplinary case. 7. Gross Misconduct 7.1 The following list, which is not intended to be exhaustive, provides examples of offences that are normally regarded as gross misconduct: theft, fraud, deliberate falsification of records physical violence, fighting, assault on another person or against another employee away from the workplace, anti social activities such as brawling, indecency, serious verbal abuse serious acts of discrimination, harassment, serious bullying vandalism or deliberate damage to Company property, premises, fixtures, equipment, stock or property belonging to a fellow worker, customer or supplier 8

9 serious negligence which causes or might cause unacceptable loss or damage or injury serious insubordination misuse of the Company s property or resources, (including excessive personal use or inappropriate use of the interest or mail facilities contrary to Company policy) knowingly importing on to the Company s computer systems and/or distributing, offensive and/or pornographic material or virus/es unauthorised computer access, accessing, disclosing, deliberately divulging or otherwise using confidential or sensitive information on a fellow worker, customer or supplier without authority bringing the Company into serious disrepute personal misconduct that causes or might cause offence to any worker, customer or supplier serious breach of confidence (subject to the Public Interest Disclosure Act 1998) including deliberately divulging to the media or a competitor, Company confidential and/or business sensitive information serious infringement of Health & Safety rules (including smoking in a non smoking area) serious infringement of any of the Company s rules or policies 9

10 breach of civil or criminal law. In the case of criminal offences, where such offences (whether committed during or outside the worker s hours of work for the Company) adversely affects the Company s reputation, the worker s suitability for the type of work he or she is employed by the Company to perform or his or her acceptability to other employees or to customers, clients or students deliberately making false statements, or dishonest conduct in relation to the Company, its employees, workers, customers or suppliers misappropriation, attempted misappropriation or unauthorised possession of Company monies or property or the monies or property belonging to another worker, customer or supplier 7.2 If you are accused of an act of gross misconduct you may be suspended from work on full pay, normally for no more than five working days, while the Company investigates the alleged offence. However, in some circumstances, the period of suspension may exceed five working days. During the period of suspension workers may be refused access to any of the Company s premises without the prior consent of the Company and subject to such conditions as the Company may impose. 7.3 If, on completion of the investigation, the Company is satisfied that gross misconduct has occurred, the result will normally be summary dismissal, i.e. dismissal without notice or payment in lieu of notice. 10

11 8. Appeals 8.1 A worker who wishes to appeal against a disciplinary decision should inform the Senior Partner in writing within 5 working days of notification of the disciplinary penalty. The worker will be advised of the arrangements for the appeal hearing and of their right to be accompanied (see paragraph 3 above). 8.2 An Equity Partner whose decision is final, will hear all appeals within 7 working days and will inform the worker of their decision in writing, within 7 working days after the appeal hearing. If it is not possible to comply with these timescales (for example if further enquiries are necessary), the worker will be informed of the delay, the reason for it and when the appeal hearing will take place or he or she can expect to receive the decision. 8.3 At the appeal any disciplinary penalty imposed will be reviewed but it cannot be increased. The Company shall, whenever possible, ensure that whoever deals with a worker s appeal has had no previous involvement with the disciplinary decision. 11

12 GUIDANCE NOTES ON DISCIPLINARY PROCEDURE General 1 The Procedure is designed to help and encourage improvement of workers rather than simply imposing a disciplinary sanction. It is important that employers regulate and set standards of conduct so that workers know what is expected of them. 2 The Procedure should always be followed: a failure to do so may mean that a successful claim of unfair dismissal is brought against the Company even if the worker was genuinely guilty. In addition to unfair dismissal claims, a failure to follow the Procedure, even at an early stage, could lead to discrimination claims (race, sex or disability). An inference of discriminatory behaviour can be drawn from a failure to follow a Company Procedure. 3 General principles of natural justice are set out at the beginning of the Procedure in addition to the specific requirements in the Procedure itself. 4 The Procedure must be brought to the attention of all staff (for example can be discussed in some detail when inducting new staff) and copies provided to all staff. A copy of the Procedure should be displayed at all times (for example on a staff notice board or on the intranet). 5 Managers who are to deal with disciplinary matters should be properly trained on the content of the Procedure and how to handle disciplinary cases to ensure that such matters are dealt with consistently and fairly. Joint training with workers representatives (if any) may be appropriate. 6 Consider whether you want only senior managers to issue final written warnings. This might help to ensure consistency of approach and enable you to make sure that the Procedure will be followed thereby limiting your liability for unfair dismissal/discrimination claims. 7 Only senior managers should be given authority to dismiss workers and they should receive additional training in this respect. 8 Managers/Directors should be identified to hear appeals and should have no involvement in the disciplinary process prior to the appeal. 12

13 9 Records of disciplinary proceedings should be kept in confidence on the worker s personnel file in accordance with the Data Protection Act the worker may be able to request copies under the Data Protection Act Amendments to the Procedure 10 Consideration should be given to amending the following clauses: Clause 5.4 Clause 5.5 Clause 5.7 Clause 7 Clause 8.1 Consider who will be authorised to give a final written warning. Will it be the worker s immediate line manager or a more senior manager? Amend the end of the first sentence of this clause as appropriate. Only an appropriate senior manager should be given authority to dismiss. Consider whether the grade or tittle of the appropriate manager should be inserted in this clause. Disciplinary penalties short of dismissal should always be considered before deciding to dismiss a worker. However, the penalties set out in clause 5.7 can only be imposed if they are provided for in the worker contract. Gross misconduct that amounts to a serious breach of contractual terms. Certain conduct, for example theft, is widely accepted as gross misconduct but there may be conduct specific to the Company business that the Company views as gross misconduct. Clause 7 is not intended to be an exhaustive list but if there is certain conduct that the Company considers to be gross misconduct, it must be set out in this clause. For example, a business in the retail trade may consider fitting and/or installing any Company merchandise at a customer s premises for payment or reward, when this has not been disclosed and authorised by the Company, to be gross misconduct. Careful consideration must be given to clause 7 and any additions made as necessary. Details of whom a worker should inform if they wish to appeal should be inserted in this clause. This could be their manager, or personnel for example. The ACAS Code of Practice states that reasonable timescales should be set for determining appeals. Five working days has been suggested in the Procedure and 13

14 this is based on current best practice. However, consideration should be given to what is reasonable and practicable in your business. The timescale should not be excessively long! Clause 8.2 Details of who (either the name or grade) will hear the appeal should be inserted. As above, consideration should be given to the appropriate timescale for determining the appeal. 14