Staff Disciplinary and Dismissal Procedure

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1 Samuel King s School Staff Disciplinary and Dismissal Procedure Date Written Reviewed Approved by Governors on Signature of Chair of Governors Next review April 09 CCC Dec 11 Dec 2013

2 DISCIPLINARY & DISMISSAL PROCEDURE FOR SCHOOL BASED STAFF Name of School: Date by which School have adopted procedure: Date by which the procedure was last reviewed: April 2009 Anticipated review date by Children s Services HR and Trade Unions: 2009/2010 academic year Signature of Chair of Governors: Cumbria County Council Children s Services 2

3 Cumbria County Council Children s Services DISCIPLINARY AND DISMISSAL PROCEDURE 1. INTRODUCTION 1.1 The School Staffing (England) Regulations 2003 places disciplinary responsibility on governing bodies of schools with delegated budgets for establishing disciplinary rules and procedures and taking appropriate steps to make them known to staff at the school. 1.2 While a school has a delegated budget, the governing body will have control of all matters of discipline relating to staff employed at the school. 1.3 This procedure is designed to help and encourage all employees to achieve and maintain standards of conduct, attendance and performance when these have been judged unsatisfactory. It is not intended to penalise employees but to enable them to meet the objectives, to provide quality services and treat people with dignity and respect. The aim of this procedure is to ensure consistent and fair treatment for all employees. This procedure complies with the Acas Code of Practice on Disciplinary and Grievance Procedures. 1.4 In order to ensure that fair and effective arrangements exist for dealing with disciplinary matters, the following procedure provides for full and speedy consideration of all the relevant facts in order that disciplinary action can be applied equitably and without undue delay. This document represents agreement between the Local Authority (LA) and the recognised trade unions, and was adopted by the Governing Body of this School on and shall be regarded as a party to this agreement for all purposes. In reaching agreement on this procedure it is acknowledged that the employer is the LA except in the case of Voluntary Aided and Foundation Schools where the Governing Body is the employer; in such cases, particular reference should be made to the supplementary provisions in Section It is recognised by the parties to this agreement that where an employee s conduct is considered to be such as to warrant disciplinary action, the disciplinary rules and procedures as laid down in this document should be followed 1.6 In adopting this procedure, the Governing Body gives delegated authority to the Chair of Governors to act as stated, except where in her/his absence, the Vice-Chair may act. 1.7 Disciplinary rules and procedures are necessary: i) for promoting fairness and order in the treatment of individuals ii) to set standards of conduct at work and to assist the effective operation of a school; iii) to ensure that employees know what standards are expected of them; and iv) to provide a fair method of dealing with alleged failures to observe these rules. 1.8 The rules and procedures can also be important in disputes about the fairness or otherwise of any decision to dismiss staff on grounds of conduct, and in responding to a complaint to an Employment Tribunal. 3

4 2 SCOPE AND PURPOSE 2.1 Minor breaches of rules and standards will be dealt with informally by managers as part of their responsibility to establish and maintain standards of conduct and performance. Where the matter is more serious, or the employee s conduct continues to be unacceptable, despite the manager s informal intervention, the Disciplinary Procedure will be used. 2.2 Below is a list of circumstances in which the Disciplinary Procedure does not apply and the appropriate procedure should be used: Situation Health problems Lack of skills/unacceptable performance Employee s fixed term contract is due to end (N.B this is for whatever period of the fixed term contract, not just for those under 1 year as stated in the current policy (soon to be revised) Procedure to be used Sickness Absence Procedure Capability Procedure Dismissal Procedure fixed term/tem temporary contract, probationary periods, Redundancy and Retirement Policy 2.3 This procedure applies to employees at the school for whom there is no other specific disciplinary procedure laid down in national or local conditions of service, or where contractual conditions specify this procedure. 2.4 Disciplinary rules relate to standards of conduct. In drawing up a code of conduct, employers are advised by ACAS that they should have regard to what is necessary for the safe and efficient performance of work and what is needed to maintain good working relationships. 2.5 Below are a non-exhaustive list of rules and standards, breaches of which may lead to the disciplinary procedure being used: i) Breaches of the School s Code of Conduct (available at Annex 2) ii) Rules and professional standards relating to misconduct or gross misconduct include discriminatory acts, bullying & harassment, theft or financial irregularities, sexual offences (including Child Protection matters), physical assault, alcohol or drug offences, malicious damage, soliciting or accepting bribes, dishonesty, improper use of one's position for personal gain, negligence, failing to comply with safety codes such as to endanger life or cause serious injury, failing to observe standard procedures (e.g. sickness reporting, financial regulations) as laid down by the school or Authority. This is not an exhaustive list. iii) Rules or standards of professional conduct include expected standards of timekeeping, attendance and job performance (as set out in contracts, statute (e.g. School Teachers Pay and Conditions Documents), job descriptions or person specifications) iv) Any offence, or incident, committed that is in breach of the disciplinary rules or legislation, should be investigated before disciplinary action is taken. This may include offences committed outside work that may render the employee unsuitable for continued employment. 4

5 All employees should be made aware of the consequences of any breach in disciplinary rules or professional conduct and in particular the type of conduct which may warrant summary dismissal. 2.6 Issues of misconduct or gross-misconduct will usually arise from a complaint or incident which warrants formal investigation before formal disciplinary action is taken. In serious cases of alleged gross misconduct, suspension from work without detriment to pay should always be considered whilst the matter is being investigated. 2.7 All breaches of disciplinary rules/codes of conduct should be dealt with promptly and speedily in the interests of fairness and service delivery. 2.8 An employee who is determined by the Secretary of State for Education and Skills to be unsuitable for employment in a school, on the grounds of misconduct or conviction following a criminal offence, shall be liable for immediate dismissal. Such an employee will be dismissed unless in the course of an interview (which shall precede any such dismissal) with the Headteacher/ Chair of Governors and a representative of the LA, good cause is shown as to why this course of action should not be adopted. 3 MANAGEMENT OF DISCIPLINE AND MISCONDUCT General Principles 3.1 The Headteacher is responsible for controlling the internal organisation, management and discipline of the school in full consultation with the Chair of Governors and, if necessary, with the Director of Children s Services. The aim of disciplinary procedures is to assist good management by helping managers and headteachers to encourage good standards of conduct. 3.2 In line with the Acas Code of Practice, where disciplinary action is being considered against an employee who is a trade union representative, the normal disciplinary procedures should be followed. However it is advisable to discuss the matter at an early stage with the employee s agreement, with an official employed by the Union. 3.3 Disciplinary action against the headteacher should be carried out under the appropriate part of this procedure by the Chair of Governors, or another governor appointed for this purpose by the Governing Body, and advice should, in all such cases, must be sought from the school s HR provider/relevant diocesan authority/officer/legal Services (Cumbria CC) in the first instance. 3.4 Disciplinary action will be taken where an employee has been shown to be in breach of disciplinary rules or code of conduct. Such action shall not be taken until there has been a full investigation of any complaint, unless the allegations are admitted by the employee and no further investigation is deemed necessary. 3.5 All employees concerned may be entitled to, and can only be accompanied by a workplace colleague or trade union representative. 5

6 4 PROCEDURE 4.1 Where the Headteacher believes that there has been a breach of discipline s/he will provide the employee with a copy of the Disciplinary and Dismissal Procedure and hold an informal meeting with the employee to discuss the matter. Whilst there is no statutory right for the employee to be accompanied at this meeting the employee should be informed that they may be accompanied by a workplace colleague or trade union representative provided that this does not delay the meeting taking place, normally by more than one working day. 4.2 If, on the basis of the employee s response, the Headteacher considers that there may be an issue to be addressed formally, and that a disciplinary investigation would be appropriate s/he will contact the relevant senior manager or independent investigating officer to undertake a disciplinary investigation. The Headteacher will advise the employee of this together with the nature of the alleged breach of discipline and confirm this in writing, normally within one working day of the meeting with the employee. 4.3 If the issues are serious / potential gross misconduct, or if the employee already has a final written warning and the outcome, if proved, could be dismissal, the employee should be informed of this in the letter, so that s/he is fully aware of the potential seriousness of the situation. 4.4 The Headteacher may also redeploy the employee within the school or suspend her/him on full pay, where a serious breach of conduct is alleged or to enable a full investigation to be undertaken. Suspension is a neutral act, and this should be explained in writing to the employee and is not a disciplinary sanction and will only apply when other alternatives have been considered. Suspension will be kept under review. (See the Code of Practice on Suspension of Staff). 5 SUSPENSION OF STAFF 5.1 In cases that could constitute gross misconduct, the headteacher or governing body may consider it appropriate to direct the suspension of the employee(s) concerned at the school pending an investigation of a complaint, incident or alleged offence. If the allegation or incident involves a dismissable offence, suspension will usually apply. A preliminary assessment of the situation should be undertaken to assess the likely level of disciplinary action to be taken. (See the Code of Practice on Suspension of Staff). 5.2 Suspension for staff employed in schools shall be without loss of pay. Suspension from duty should be considered in the following circumstances: i) where the employee's continued presence at work could put her/him, other people (including pupils) or the school/ Authority's funds/property at risk; ii) where there is no acceptable alternative to suspension, e.g. removal from normal duties, imposition of restrictions to avoid future risk; iii) where the allegations constitute gross misconduct and, if proven, it is likely that the employee will be dismissed. The concept of gross misconduct (which may lead to dismissal) is such that it is usually advisable to suspend the individual while the information is being obtained, once the facts have been established and for the duration of 6

7 the disciplinary procedure. Gross misconduct refers to those acts which are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence. 5.3 Where it is decided to suspend an employee pending investigation, a meeting to inform the employee should be arranged at a time that is reasonable for the employee and her/his work place colleague or trade union representative to attend. Whenever possible, the employee shall be accompanied at this meeting by a colleague or trade union representative and the headteacher shall have a colleague not involved in the issue present to witness the discussion. The employee should be notified at the outset that an allegation has been made and that suspension from duty, without detriment to pay, is necessary during the investigation. The employee should be given as much information as possible about the allegation and the suspension. (Although in cases where the police are involved or may be involved in the future there may be restrictions on the information that can be disclosed, but the nature of the allegation should be made known to the employee). 5.4 All matters of staff discipline are governed by strict confidentiality and this is especially important in the early stages of an investigation when it may not be clear that allegations made are accurate. Suspension from duty is a precautionary measure - it is a neutral act and does not imply any indication of blame. This must be explained to the employee at the meeting where s/he is informed of her/his suspension. 5.5 An employee who is suspended should: i) be allowed to collect personal possessions; ii) hand over keys or other essential school property to the headteacher or nominated deputy; iii) be told not to enter the school premises without prior permission from the headteacher; iv) be told that they may be called back for interviewing as part of the investigation and must be available to be called in at any time during working hours; v) be told not to contact pupils, colleagues or members of the school governing body as this may prejudice any future hearing; vi) be advised that contact with school colleagues, e.g. in relation to preparing a response to allegations, should be arranged via the headteacher or their trade union vii) seek to agree with the headteacher what colleagues and/or parents will be told about their absence from work; viii) be told that the suspension will be confirmed in writing within 2 working days. 5.6 A letter should be issued within two working days of the employee being suspended, confirming the decision to suspend the employee, the date of effect, the fact that there will be no loss of pay during the period of suspension and that, where appropriate, a disciplinary hearing will be set up at the earliest possible opportunity once the investigation has been completed and that the allegations, if upheld, may lead to her/his dismissal. It should be made clear in this letter that suspension is a neutral act; it is not a disciplinary 7

8 sanction and will be kept under review. A copy of the school s disciplinary procedures should be sent (if not already done so) to the employee and any other documents relevant to the allegation or the investigation which are available at the time. 5.7 The period of suspension should be as brief as possible, reviewed regularly and investigations must be commenced as soon as practicable. 5.8 The power to end suspension rests with the governing body. The LA recommends that this power should be delegated to the Chair of Governors where a decision is required on whether an employee s suspension is to be lifted before or without recourse to a disciplinary hearing. 6. PROCEDURE Disciplinary Investigation Please also refer to the document Guidance on Carrying out Investigations 6.1 The purpose of the investigation is to obtain all relevant information and evidence which may lead to disciplinary action being taken against an employee. In carrying out the investigation, it should be made clear that the investigation and any interviews conducted with the employee concerned in order to obtain relevant information are not formal disciplinary hearings. Where it is believed that there is sufficient substance in an allegation to warrant an investigation, and it is not one warranting urgent consideration of suspension, the employee must be informed within ten working days of receipt of the complaint. 6.2 Any complaint or incident involving theft, fraud, corruption or other financial irregularity must be immediately notified to Internal Audit Division before proceeding with any disciplinary procedure or action. Serious cases of theft may also need to be reported to the police. 6.3 Any complaint involving suspected child sexual, physical or emotional abuse should be investigated using the Child Protection Procedures. 6.4 Where the employee concerned is an accredited representative or official of a trade union, the case must be first discussed with a full-time branch or regional officer of that trade union or association before any steps are taken. 6.5 The investigation should normally be carried out by a senior manager nominated by the Headteacher. In exceptional circumstances the LA may be asked to provide an investigator from outside the school. 6.6 In the case of an allegation against the headteacher, the matter should be reported by the Chair of Governors or her/his nominee to the Director of Children s Services. 6.7 In the course of an investigation, the following steps should be taken: i) obtain as much relevant information as possible on what happened, when and where; interview the complainant and any witnesses and obtain written statements which should be signed and dated. 8

9 ii) in cases of complaint by another person, consider whether local resolution is possible (e.g. it might simply be that an explanation or apology is required). The complainant should be informed that copies of the complaint will be made available to the employee named. iii) the person who is complained against should be informed in writing and provided with relevant details/documents of the complaint as soon as possible after the complaint is made so that s/he has an opportunity to respond to the allegations and is aware that an investigation is taking place. From the date that the relevant details/documents are provided to the person who is complained against, that person shall be given at least five working days to prepare her/his submission for the investigation. iv) an interview should take place with the employee, once relevant information supporting the allegation has been obtained. (In child protection cases, the school/investigating Officer should liaise with the Local Authority Designated Officer (LADO) with a copy to Children s Services HR (for a current up to date list of contact names and details please refer to the contact list available on the school portal) LADO/Children s Services will liaise with the Police and may advise that the interview should not go ahead). The employee shall be advised of the right to be accompanied at the interview and also advised that s/he may make a written response to the complaint if s/he so wishes. Reasonable advance notice (normally not less than five working days) of this interview should be given to enable the employee to arrange to be accompanied by a colleague or trade union representative. 6.9 The investigation should be thorough, comprehensive and unbiased. The role of the Investigator is to gather evidence and prepare a report which must be clear and contain a summary of their findings based on the facts and detailing any evidence to indicate whether or not the alleged misconduct may have occurred It is a reasonable management instruction to require employees to co-operate with the investigation and any subsequent hearing. Employees therefore have a duty to: - i) meet with the Investigator ii) put forward their own account and explanation of the events at issue iii) answer the Investigator s questions about the events at issue The employee who is subject to the investigation is expected to co-operate with the Investigator. This is an essential part of the process, as it is important for the employee to have an opportunity at the earliest stage of the proceedings to put forward matters which may impact on the decision as to whether or not disciplinary action is to be taken. It will also assist the Investigator in identifying witnesses and identifying and retrieving other evidence such as documents. It is essential that the employee is able to put relevant matters forward while they are still fresh in their mind. Failure to do so by the employee may, depending upon the reasons for non co-operation, be considered as misconduct under the Disciplinary Procedure as such action may prejudice a reasonable and proper investigation If, following a full and proper investigation of the information and circumstances, no substance to the complaint is found, or the complaint is deemed to be unfounded, a letter stating this should be sent to all parties concerned within three working days of that 9

10 decision being made Where the employee has been suspended and the investigation reveals that there is no case to answer, or that the nature of the breach of conduct warranted action on the grounds of misconduct as opposed to gross misconduct, the employee should be reinstated before and/or without recourse to a disciplinary hearing. 7. DISCIPLINARY ACTION TO DEAL WITH ISSUES OF MISCONDUCT OR GROSS MISCONDUCT 7.1 Where the allegation is admitted or where a full investigation has indicated a breach of discipline, the employee shall be informed in writing that the formal disciplinary procedure is being invoked, the nature of the complaint against her/him and shall be given a copy of this procedure. The following procedure should be followed in cases where the headteacher may intend to issue a first, second or final warning if the allegation or breach of discipline were to be upheld. Where an allegation against a headteacher is being considered, this part of the procedure will be conducted by the Chair of Governors or a nominated Governor. 7.2 The headteacher shall provide the employee with an opportunity to make verbal and/or written representations before deciding to take disciplinary action. The employee should be given in writing at least five working days notice of the date, time and venue of meeting and the entitlement to be accompanied by a single companion who is either a trade union representative or colleague. The headteacher should prepare a written report which details the allegation(s) including copies of witness statements (signed and dated), and the details and conclusions of the investigation. The report, and names of any witnesses to be called by the headteacher, shall be provided to the employee at least seven working days before the meeting. The employee and her/his representative shall provide, not later than two working days in advance of the hearing, copies of any documents which they intend to produce in evidence at the hearing, along with the names of any additional witnesses they wish to attend the meeting. Where the employee s trade union representative or colleague cannot attend on the date proposed or the employee is unable to attend for reasons outside of their control, the employee shall be entitled to propose a reasonable alternative time and date which falls before the end of the period of 5 working days beginning with the first working day after the date proposed. If this is not possible, a new date will be set which does not delay the process unduly. If the employee is persistently unable or unwilling to attend a meeting without good cause, the school may proceed in the employee s absence and make a decision on the available evidence. 7.3 At the meeting the headteacher should go through the report, including evidence of witnesses. The employee should have the opportunity to question witnesses and present further evidence, including witnesses, in her/his defence of the allegations. Notes should always be kept of meetings or hearings held in connection with a disciplinary case. The outcome of disciplinary proceedings shall normally remain confidential to the parties involved. If the headteacher upholds the allegation, he or she shall give a written warning to the employee. If the headteacher does not uphold the allegation, no disciplinary action shall be taken. In either case the employee will be informed within three working days of the meeting taking place. 7.4 In most cases of first minor breaches of discipline, the employee should be given a first warning. The fact that a first warning has been issued together with the nature and length of the warning should be recorded in writing in a memorandum with a copy 10

11 provided to the employee and a copy kept for reference purposes (on the employee's personnel file held by the School). First warnings will be live for a specified time (six months). 7.5 In more serious cases of misconduct, or where there is an accumulation of similar minor offences, a second written warning or a final written warning should be issued and a copy kept on the employee's personnel file. A second written warning (one year), or a final written warning (two years) will remain live for the specified time after which it will be deemed to have lapsed and will be expunged from the employee s personal file. 7.6 A record of the warning shall be issued to the employee containing the following details: - i) the date and nature of the offence ii) the course of action to be followed by the employee iii) the timescale for improvement if appropriate iv) any assistance the school/ Authority may be in a position to offer, if appropriate v) the right to appeal and how to exercise that right; vi) the probable result of failure to meet the desired standards; vii) that the warning constitutes the appropriate formal stage of the disciplinary procedure; viii) the time period the warning will remain on the employee s file. 7.7 A confidential copy of the warning shall be kept on the employee s file. Any written comments or observations which the employee may wish to make on the warning shall also be kept on her/his file. Where, however, the offence concerns indecency, abuse or assault involving children, the warning shall not be expunged automatically. Following a request from the employee, the position may be reviewed subsequently by the Headteacher/Chair of Governors after discussion with the school s HR provider/legal Services (Cumbria CC) or for Church Schools relevant diocesan authority/officer, after a time not less than the standard periods referred to in Part 10 of this procedure. 7.8 If an employee is dissatisfied with any decision relating to her/him, of any first, second, or final written warning issued, s/he may write to the clerk to the governors to lodge an appeal to a panel of the Governing Body. This request, stating the grounds for the appeal, shall be made within ten working days of the receipt of the written notification of disciplinary action. The appeal should normally be heard within 15 working days of it being lodged. NOTE: Throughout the rest of this document where the phrase headteacher/ staff disciplinary panel of the governing body appears, the appropriate arrangements must be applied in accordance with the decision of the governing body concerning delegation of such matters. 7.9 If a complaint or incident arises which results in immediate suspension of a member of staff, or which is deemed, without further investigation, to be of a serious nature or, if, 11

12 having carried out an investigation, it is considered that the matter should be dealt with under this part of the procedures, the employee will be required to attend a disciplinary hearing The power to deal with matters of staff discipline may be delegated to the Headteacher or the staff disciplinary committee of the governing body. To prevent unnecessary delay in convening disciplinary hearings where the Headteacher has not been given delegated responsibility, governing bodies are advised to agree at the annual general meeting to delegate the power to hear such disciplinary cases and appeals to two separate committees, with a quorum (minimum) of three members for each panel. Only in cases where there are not enough governors available who have not been involved in any previous action or decision connected with the case, can the initial hearing or appeal be heard by two governors. There should be no fewer governors hearing an appeal than heard the original case. It would be prudent to designate at least eight governors to hear any staff disciplinary cases (i.e. sufficient to establish two panels of three governors with two substitutions in case of unavailability.) 7.11 A disciplinary hearing should be set up at the earliest convenient date. Hearings should take place during an employee's normal working hours whenever possible, although it is appreciated that this may cause some difficulties for governing bodies The employee should be given at least ten working days notice of the meeting and advised of the entitlement to be accompanied by a single companion who is either a trade union representative or workplace colleague. The letter giving such notice should state the date, time and place of the hearing, set out the allegations in detail, including details of dates, places, times etc., relevant to the allegations, attaching all relevant documents supporting the allegations, give the name(s) of the person(s) hearing the case, presenting the allegations, and any witnesses to be called in person. It must state the consequences of being found blameworthy, including possible dismissal in cases of gross misconduct, and must advise employees of their right to submit a written response, to be represented, to bring evidence and call witnesses as necessary. If the employee is persistently unable or unwilling to attend a hearing without good cause, the school may proceed in the employee s absence and make a decision on the available evidence The employee and her/his representative shall provide, not later than five working days in advance of the hearing, copies of any documents which they intend to produce in evidence at the hearing, along with the names of any witnesses to be called All relevant documents, including both the presenter s report and the employee s written response, if one has been provided, should be attached together and made available to headteacher/panel on the day of the hearing to enable the submissions of both sides to be read. The Headteacher/Governing Body members may receive this documentation at a pre-meeting immediately prior to the start of the hearing in order to be able to make themselves familiar with the documentation The employee has a statutory right to be both accompanied and represented at the hearing. At the discretion of the person(s) hearing the case, taking into account the circumstances of the case, any other employee present, e.g. witnesses may be accompanied, but not represented, at the hearing A representative of the LA will normally attend to advise the panel on the proceedings and will always attend when a possible outcome of the hearing could be 12

13 dismissal. Any advice given by the LA representative must be considered before any decision regarding the matter is taken At the hearing it should be arranged for all persons present to introduce themselves and all witnesses as they are called. The purpose of the hearing should be explained, i.e. to consider the allegations, make a decision based on the evidence presented and, if necessary, to decide upon disciplinary action if any is to be taken. The procedure to be followed at formal disciplinary hearings is attached at Annex At the hearing, the Headteacher or Chair should allow for first management (or its advocate) and then the employee (and/or her/his representative) to present their case, including documentary evidence, statements or witnesses. Both parties should have an opportunity to present and question their own witnesses and question the other party s witnesses. (Officers from the Internal Audit division or the Housing Benefits Fraud Investigation Team will normally attend as witnesses in appropriate cases of financial irregularity.) 7.19 Once all the evidence has been presented and all questions asked, the hearing will be concluded. All parties, except the Headteacher or panel considering the case and any advisers, will leave the room including the manager or individual who presented the case, the panel are left to consider. The Headteacher/panel must consider all the evidence presented to them and consider if the allegations are to be upheld on the balance of probabilities, and, if so, what disciplinary action should be taken. The person(s) conducting the hearing must first decide whether the employee has, or has not, broken the disciplinary rules. This should be done on the basis of the evidence heard, without reference to previous disciplinary records or any other information not introduced at the hearing. Further advice on disciplinary sanctions is given below in Part If having considered the information available, the headteacher s/panel s decision is that the allegations against the employee are, on the balance of probabilities, not upheld, or that there is insufficient information to support the allegations made, no further action will be taken. A letter setting out the decision of the headteacher/ panel and the reasons for the conclusion should be sent to the employee concerned within 5 working days. Where the employee is suspended, immediate steps shall be taken to lift the suspension If the employee admits the allegations, or having considered the evidence, the headteacher/panel considers that the allegations against the employee are, on the balance of probabilities, found, the headteacher/panel should conclude that there has been a breach of the disciplinary rules and consider what disciplinary penalty should be applied. If the decision is to impose a disciplinary sanction, the employee or her/his representative should be given the opportunity to make a plea of mitigation and the presenter (or advocate) may respond. If there is such a plea in mitigation it shall not be taken, by either party, as an opportunity to re-open the case The employee will have a chance to mitigate if they so wish. 8 APPEAL AGAINST DISCIPLINARY ACTION 8.1 There shall be a right of appeal against any decision to impose a penalty on an employee as a result of disciplinary action by the Headteacher or by governors. 8.2 The appeal shall be heard by a panel of governors who have not been previously 13

14 involved in the case. The panel will hear the appeal on the basis of the written notice of appeal received that also sets out the reason(s) for appeal. The meeting of the panel of governors at which the appeal will be heard should be set up within ten working days of receipt of the appeal by the school or as soon as is practicable thereafter. 8.3 It is recommended that the power to deal with appeals concerning disciplinary action should be delegated normally to a committee of three members of the Governing Body. The appeal panel must not have fewer members than the original hearing panel (where appropriate) and governors hearing the appeal should have had no prior involvement. 8.4 The employee should be given at least ten working days notice of the appeal and be entitled to be accompanied by a single companion who is a trade union representative or workplace colleague. 8.5 No new allegations may be introduced at the appeal hearing but new evidence relating to the reason for appeal will be admissible. Any additional documents or witness statements provided either by the presenter or the employee should be exchanged by both parties not later than five working days before the appeal hearing. 8.6 The presenter s report, detailing the response to the reasons for the appeal, all relevant documents relating to the allegations, copies of witness statements (signed and dated), together with the employee s written response, if one has been provided, and the decision of the previous hearing should be attached and made available to the appeal panel on the day of the hearing. To enable governors to become familiar with the documentary evidence of both sides and prepare questions the panel should meet shortly before the start of the appeal hearing. 8.7 At the commencement of the hearing, the Chair of the Appeal Panel should arrange for all persons present and all witnesses as they are called to introduce themselves. The purpose of the appeal hearing should be explained, i.e. to consider the grounds for appeal in the context of the original case, consider the evidence presented, make a decision based on the evidence presented, hear any plea of mitigation and determine whether to confirm, overturn or modify (but not increase) the decision of the first hearing as to what disciplinary action is to be taken. 8.8 At the appeal hearing, the Chair of the Panel should allow for the presenter and then the employee (and/or her/his representative) to present their case, including documentary evidence, statements or witnesses and both parties should have an opportunity to question its own witnesses and cross-examine the other party s witness. 8.9 New evidence may only be presented at the appeal hearing if it has come to light since the first hearing and relates to the grounds for appeal. Variation in presentation of the cases should be acceptable Once all the evidence has been presented and all questions asked, the appeal hearing will be concluded. All parties, except the panel and any advisers, will leave the room. The appeal panel must consider all the evidence presented to them and decide whether the grounds of appeal are, on the balance of probabilities, proven and, if so, what action should be taken. This should be decided on the basis of the evidence heard, without reference to previous disciplinary records, hearings or any other information not introduced at the appeal. The Appeal Panel will have the power to confirm, overturn or 14

15 modify (but not increase) penalties imposed at the previous disciplinary hearing by the headteacher/panel The outcome of the appeal hearing must be confirmed in writing to the employee concerned within three working days. The governing body will notify the LA of the decision, in writing, where the initial decision was to dismiss the employee. Acas guidance states that the appeal should not result in any increase in penalty If the decision of the Appeals Panel is that the employee concerned should not cease to work at the school, the LA will issue a letter rescinding the earlier letter of dismissal to the employee not later than three working days following the decision of the Appeals Panel. Records should be kept for 6 years Schools and LAs have a statutory duty to make a report to the DCSF, in certain circumstances, when they dismiss, or cease to use a person s services, as a teacher or in work involving regular contact with children. Guidance about the circumstances in which there is a duty to report, and the information that must be provided with the report can be obtained from the school s HR provider/ relevant diocesan authority/officer/ Legal Services (Cumbria CC). 9 SUPPLEMENTARY PROVISIONS 9.1 Under no circumstances shall any formal or informal warnings issued in accordance with this procedure be recorded in the School Log Book. 9.2 This disciplinary procedure shall apply to those employees specified in Section 1, save that in the case of a Voluntary Aided or Foundation School where the Governing Body is the employer of staff at the school: i) the Governing Body may, by formal resolution, agree with the LA to accord advisory rights to the Director of Children s Services or their nominee (and in the case of Voluntary Aided Schools similar rights to the appropriate Diocesan Authority) in relation to the dismissal of employees at the school, in which case the advisory provisions of this procedure shall apply; ii) the Governing Body shall, on dismissing an employee, notify the LA in writing of the reasons for the dismissal. 9.3 Should the outcome of a disciplinary enquiry/investigation/hearing adjudge that an employee was not blameworthy or should any disciplinary action be rescinded and effectively withdrawn following appeal, all records relating to the allegation shall be removed from the employee s personal file and the employee notified accordingly. In such circumstances, where the employee had been dismissed, any monies to which he or she would have been entitled but for the dismissal shall be repaid. 9.4 All disciplinary proceedings shall be confidential. 10 GUIDANCE ON FORMS OF DISCIPLINARY ACTION 10.1 Possible forms of formal disciplinary action in order of 'severity' include: i) First warning (6 months confirmed in writing) for minor offences. 15

16 ii) Second warning (1 year confirmed in writing) following a first warning or for more serious offences. iii) Final written warning (2 years confirmed in writing) following a second warning or serious offences. iv) Withholding of annual increment (subject to statutory and contractual conditions). v) Dismissal with notice (or payment in lieu of notice) following a final written warning or where a warning is futile (in exceptional cases only). Vi) Immediate or summary dismissal (normally following a disciplinary hearing) without notice Before deciding on an appropriate disciplinary penalty, headteachers/governors should consider: i) whether the procedure indicates what the likely penalty will be as a result of the particular misconduct ii) the gravity of the offence; iii) the penalty applied in similar cases in the past; iv) the employee s disciplinary and general service record, and for the avoidance of doubt, it shall be acceptable for the employee s disciplinary record to be taken into account when deciding on the appropriate penalty, but not when assessing whether or not the complaint against the employee should be upheld. If the matter is heard by an Appeals Panel, that Panel must not be shown the documents (or advised in some other way) that contain the reason(s) and thinking behind the particular penalty that has been imposed until after they have made a decision on whether it was correct, on the balance of probabilities, to uphold the complaint against the employee in the first place; v) any mitigating circumstances which might make it appropriate to lessen the severity of the penalty and vi) whether the proposed penalty is reasonable in all the circumstances. Unless the employee is being dismissed for reasons of gross misconduct, s/he should receive the appropriate notice or payment in lieu of notice as required under contract. Other than in exceptional circumstances i.e. for reasons of gross misconduct, dismissal should only be applied after a final written warning has been given. Headteachers and governors are strongly advised to seek the advice of the LA, their chosen HR provider or Diocesan Authority on the appropriateness of any penalty to be imposed, to ensure consistency of treatment. Failure to apply consistency could be an aspect of a complaint to an Employment Tribunal It is most strongly advised that copies of all relevant documents relating to the disciplinary case must be kept securely for at least 6 years, in case they are required at a later stage, or a complaint to Employment Tribunal is lodged. Records must be kept on the individual s personal file detailing the nature of any breach of disciplinary rules, the 16

17 employee s response or mitigation, the action taken and the reasons for it, whether an appeal was lodged, its outcome and any subsequent developments. Records held by the school (not on the employee s personal file) will include warnings that have expired and related documents as well as instances where the employee has been exonerated at either the initial hearing or any subsequent appeal. These records are to be kept confidential and retained in accordance with this procedure and the Data Protection Act

18 PROCEDURE AT DISCIPLINARY HEARINGS AND APPEAL HEARINGS ANNEX 1 Whether the headteacher hears an initial disciplinary case or this role is taken by a governors panel depends on the decision made by the governing body with regard to delegation of its powers in such matters. 1 The procedure at Disciplinary Hearings and Appeals Panels of the Governing Body will be as follows: 2 The Governing Body may appoint an advocate to present the case on behalf of the Headteacher (or Chair of Governors as appropriate), in order that the Headteacher/Chair of Governors may act as a witness in appropriate cases. 3 The Headteacher /Panel of governors, representative of the LA (or senior manager, Chair of Governors, nominated governor, advocate as appropriate), employee and her/his representative will be present at the commencement of the Hearing. (The period set aside for the Headteacher/panel members only to familiarize themselves with documentation is not part of the Hearing) 4 The Headteacher/ Chair of the Panel will introduce those present, giving names/job titles and roles (whether advisory or decision-making) and advising that notes will be taken of the proceedings for the record (and who will be taking them) and to assist in the reaching of a conclusion. 5 The Headteacher/Chair of the Panel will explain the purpose of the Disciplinary Hearing/Appeals Panel, and the procedure which will be followed in accordance with this Annex. Witnesses shall be present only whilst they are being examined and must not be allowed to confer. Witnesses may be accompanied but not represented at the Hearing. Any questions of procedure not explicitly covered by this document shall be determined by the Headteacher/Panel hearing the case. 6 The presenter will confirm the allegations, report the outcome of the investigation, call witnesses and introduce other documentary evidence to the Panel. 7 The employee and/or representative will be invited to ask questions on the case as presented, or directly to re-examine the evidence given by any witnesses. 8 The Headteacher/Panel will have the opportunity to ask questions or clarify any issues raised during this presentation, or to re-examine witnesses. 9 The employee and/or representative will be invited to present evidence in their case, including making a full statement and introducing any witnesses or documentary evidence. 10 The presenter will be invited to ask questions on the case as presented, or directly to re-examine the evidence given by any witnesses. 11 The Headteacher/panel will have the opportunity to ask questions or clarify any issues raised during this presentation, or to re-examine witnesses. 12 Both parties will be invited to make their closing statements, with the 18

19 employee/employee representative making the final statement. 13 All parties will be asked to withdraw excepting the Headteacher/Panel and any representative of the LA attending to advise or the person taking notes of the proceedings. 14 The presenter, employee and her/his representative may be recalled to clarify any points of uncertainty on evidence already given. If recall is necessary, both parties will return, irrespective of the point of clarification sought. 15 The Headteacher/Panel will decide whether the allegations are upheld (on balance of probability) and, if so, what disciplinary action should be taken, or whether or not an appeal should be upheld. 16 Where the Headteacher/Panel determines that there has been a breach of the disciplinary rules and that disciplinary action should be taken/confirmed, the employee/representative will be given the opportunity to make a plea of mitigation, and for the presenter to respond to such a submission, before a decision is made on any disciplinary sanction to apply. 17 The Headteacher/Panel s decision to be communicated in writing to the employee concerned within five working days setting out the decision of the panel and the reasons for the conclusion. 19

20 CODE OF CONDUCT ANNEX 2 High standards of professional conduct are particularly important in schools and educational establishments and the image and ethos of a school have a vital effect on the success of its activities. The duty of care towards children and students imposes particular demands on staff in schools and educational establishments to conduct themselves in a proper manner observing the health, safety and welfare of others at all times. It is therefore important that all employees observe the standards of conduct that pupils, parents and the public are entitled to expect. Any member of school staff who breaches the Code described in this document will be liable to disciplinary action. The nature of action taken in any case will depend on: i) the seriousness and nature of the breach; ii) the employee s previous record; iii) mitigating circumstances; iv) in some cases, the nature of the post. Some breaches of the Code will be treated as gross misconduct and in such cases dismissal (possibly without notice) may be the appropriate form of disciplinary action. It is difficult to define gross misconduct specifically, but it refers to those acts which are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence. Gross misconduct can include acts committed outside working hours (as long as it has a direct and fundamental impact on the suitability of an employee to work in the school), as well as those committed at work. The sorts of breaches of conduct which are likely to be deemed gross misconduct and lead to dismissal, without warnings having been given, are: 1. Unauthorised removal or damage to school or Council property. 2. Dishonesty or falsification of records/ expenses/pay claims. 3. Theft and/or fraud. 4. Fighting/physical violence, including corporal punishment, inappropriate physical contact and child abuse. 5. Sexual offences, including improper relationships with children. 6 Improperly using one's position for personal gain. 7 Drunkenness or drug abuse at work. 8 Endangering the health and safety of staff, pupils or others. 9 Unlawful discrimination or harassment. 20

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