Disciplinary Policy. Policy Title. Disciplinary Policy. Policy Reference Number NTW(HR)04. Lead Officer

Transcription

1 Disciplinary Policy Policy Title Policy Reference Number Lead Officer Author(s) Ratified by Disciplinary Policy NTW(HR)04 Executive Director of Workforce and Organisational Development Elizabeth Latham Executive Director of Workforce and Organisational Development Modernisation, Organisational Development and Programmes Committee Date ratified March 2010 Implementation Date March 2010 Date by which policy to be embedded March 2011 Review Date March 2013 Version Number 2 Change Control Date Version Reason March Policy Update This policy supersedes: Reference Number Title NTW(HR)04 Disciplinary Policy Version 1.3 Northumberland, Tyne & Wear NHS Foundation Trust NTW(HR)04 Disciplinary Policy

2 Section Contents Page No. 1. Introduction 1 2. Purpose and Scope 1 3. Duties 1 4. Definition of Terms Used 2 5. Principles 2 6. Patient Safety Incidents 3 The Incident Decision Tree 7. Using an Informal Approach 3 8. Suspension 4 9. Formal Procedure Conduct Issues Formal Procedure Performance Issues Appeals Additional Information Right to be accompanied Trade Union Official Complaints about the Application of the Policy Keeping Records Role of Human Resources Criminal Charges or Convictions Outside Employment Professional Conduct Counter Fraud Policy Right to Curtail Procedure in Exceptional 21 Circumstances 21. Development Consultation and Ratification Implementation Training and Embedding Review Monitoring Fair Blame Associated Documents / Other Relevant Policies References 23 Appendices attached to the policy 1. Disciplinary Rules The Incident Decision Tree Flow Chart Management of Allegations Guidance Authority to take Disciplinary Action Withholding of Pension Benefits Trust Appeals procedure Equality & Diversity Impact Assessment Form Training Checklist/Training Needs Analysis Audit / Monitoring Tool Guidance 42 Northumberland, Tyne & Wear NHS Foundation Trust NTW(HR)04 Disciplinary Policy

3 10. Policy Notification Record Sheet Changes to Policy Document 44 Northumberland, Tyne & Wear NHS Foundation Trust NTW(HR)04 Disciplinary Policy

4 DISCIPLINARY POLICY 1. Introduction 1.1 This policy is designed to help the Trust to maintain a courteous, professional and supportive environment in which staff can work to the benefit of patient care. 2. Purpose and Scope 2.1 It sets out guidance to all employees on expected standards of behaviour and provides procedures for addressing instances where an individual fails to meet required standards of conduct or performance. The aim is to ensure consistent and fair treatment for all. 2.2 The policy should be read in conjunction with other publications which reference expected norms of behaviour and performance including the NTW Staff Charter; Knowledge and Skills Framework; local Directorate or Departmental policies; and professional codes of conduct. 2.3 The policy applies to all staff employed by Northumberland, Tyne and Wear NHS Trust (except in instances of professional conduct, capability or competence by medical staff.) In all circumstances relating to medical staff, this policy should be read in conjunction with the Handling Concerns About Doctors Policy (NTW(HR)02). 2.4 Supporting guidance notes for managers on the application of this policy are available from the HR Department. 3. Duties 3.1 The Chief Executive has overall responsibility for ensuring the Trust has adequate policies in place. 3.2 The Executive Director of Workforce and Organisational Development is the Lead Officer for the purpose of this policy. 3.3 The Modernisation, Organisational Development and Programmes Committee will oversee the implementation, monitoring and effectiveness of this policy. 3.4 Managers will: Ensure that disciplinary matters are handled in accordance with this policy, guidance and employment legislation. Set out the disciplinary rules within their work area and make staff aware of the expected behaviour and conduct. 3.5 Staff will understand and comply with the high standards of behaviour, NTW(HR)04 Disciplinary Policy 1

5 conduct and performance expected of them at all times. 3.6 The Human Resources Department will provide support and advice to managers and staff in relation to disciplinary matters in relation to the relevant HR policies, guidelines and employment legislation. 4. Definition of Terms Used Lead Officer: the Director accountable for the policy Author(s): the person(s) nominated by relevant Trust group or Lead Officer to prepare the policy Ratify: formal agreement and acceptance Implement: put into practice / operation. Embedded: established. Review: reassess. 5. Principles 5.1 The procedures set out in this document are primarily to help and encourage employees to improve rather than just as a way of imposing punishment. It is the Trust s intention that this policy be interpreted and used by everyone concerned in a positive and supportive way. 5.2 All employees are required to co-operate and participate fully with all stages of the disciplinary procedure. This includes staff who may have experienced or be witness to allegations of inappropriate behaviour. 5.3 All staff who are the subject of investigation or action under this policy have the right to be accompanied at all stages of the procedure by a Trade Union representative or fellow worker. 5.4 At every stage in the procedure, the employee will be advised of the nature of the complaint against him/her and will be given the opportunity to state his/her case before any decision is made. 5.5 No disciplinary action will be taken against an employee until the case has been fully investigated and the individual has had an opportunity to state his/her case. 5.6 No employee will be dismissed for a first breach of discipline except in the case of gross misconduct, where summary dismissal may be appropriate. (See Appendix 1). 5.7 The HR Department is able to provide advice and guidance on the application of this policy. 5.8 The strictest confidentiality will be preserved at all times throughout the application of this. NTW(HR)04 Disciplinary Policy 2

6 5.9 Northumberland, Tyne and Wear NHS Trust is committed to providing equal opportunities in employment practice. The implementation of this procedure will not discriminate directly or indirectly on the grounds of gender, sexual orientation, marital status, race, religion, culture, disability, age or trade union membership. 6. Patient Safety Incidents The Incident Decision Tree 6.1 Before embarking on disciplinary action following a patient safety incident, managers are recommended to use the Incident Decision Tree flowchart (Appendix 2) which helps determine whether the incident was due to an individual or was a systems failure and therefore whether disciplinary action is appropriate. Although it promotes good management practice, it is not designed for use in other situations, such as poor general performance or absenteeism. 6.2 If more than one employee is involved, it is essential to work through the Incident Decision Tree separately for each person. 7. Using and Informal Approach - for use where there may be minor behavioural or performance problems 7.1 Wherever possible, managers should deal with minor problems informally. A quiet word in private to draw an issue to an individual s attention in a supportive way may be all that is needed to improve behaviour or performance. This is best done as soon as possible after the incident or occurrence which led to the concern and would involve only the manager and the member of staff and would be kept strictly confidential. 7.2 Where an employee s conduct or performance does not improve but the concern remains minor, the manager may wish to take a more structured approach, but still use informal methods, e.g.: further discussion and advice referencing information to assist (eg Staff Charter, KSF, professional codes of conduct etc) coaching or refresher training objective setting workplace support 7.3 These actions should be part of a two-way with constructive input from both parties and the outcome should be: a clear understanding of what is expected of the employee in the future a framework of support as appropriate a clear understanding of how this will be monitored and reviewed and over what timescale NTW(HR)04 Disciplinary Policy 3

7 a clear understanding of what action may be taken if the employee fails to improve in the identified areas. 7.4 Discussions as in 7.2 above to address minor behavioural or performance problems are usually achieved most effectively when only the employee in question and their immediate line manager are involved. However, an individual should not be denied the right to be accompanied by a Trade Union representative or fellow worker should this be requested by the employee. 7.5 A brief file note of any agreed action points will be kept for reference purposes, having been shown to and signed by the employee. This will not be considered to be disciplinary action and is not subject to appeal. Should the employee refuse to sign the file note, they will be asked to formalise their reasons for doing so in writing. If agreement cannot be reached, then addressing the issue via a formal procedure may need to be considered. Notes of informal discussions will be held on the employee s personal file as part of the employment record and a copy will be given to the employee. 7.6 It is expected that the subject matter of the informal discussions will be monitored with the view to resolving the problem. Where improvement is evident, a further file note should be made to acknowledge this positive outcome on the employment record and a copy will be given to the employee. 7.7 Should it become apparent at any stage during an informal discussion that matters appear to be more serious than originally thought, informal proceedings should cease immediately and advice taken from the HR Department. This will also allow the employee to access a Trade Union representative or fellow worker as a companion. In these circumstances consideration will need to be given to instigating a more formal process. 7.8 Where informal action does not address the problem, the formal procedure may need to be invoked. This may either be the formal procedure in relation to conduct or performance see sections 8 and 9. In these instances, the HR Department are able to provide advice. 8. Suspension 8.1 There may be circumstances where it is necessary to suspend a member of staff on full pay (with enhancements as defined by AfC or Medical and Dental conditions of service), while a case is being investigated. When an investigation is required and the individual needs to be removed from their workplace, all alternatives will be considered before a decision to suspend is made. 8.2 Examples of possible reasons when suspension should be considered are NTW(HR)04 Disciplinary Policy 4

8 as follows: the allegations are of such a nature they could, if proven, constitute gross misconduct it would not be possible to carry out a full and proper investigation with the individual member of staff at work the individual could not continue to work normally whilst an investigation is undertaken the individual would have an opportunity to alter or tamper with the evidence relating to the incident the individual is considered unfit for duty. The manager in conjunction with Human Resources will make this decision and in these circumstances it may be necessary to involve Occupational Health there is a likelihood that if the individual continued to work further incidents/allegations may occur 8.3 This is not designed to be an exhaustive list but rather an indication of the types of reasons when suspension may be appropriate. 8.4 Suspension is not a form of disciplinary action, nor is it a presumption of guilt. 8.5 It is important that the manager does not exercise their right to suspend an employee without proper grounds and without full and proper consideration of whether there is an alternative to suspension. The Human Resources Department must be consulted prior to any suspension. If the manager considers it necessary to suspend someone out of office hours and no one from Human Resources is contactable, he/she must contact Human Resources the next day to confirm whether or not the suspension is appropriate. 8.6 Prior to a suspension every effort should be made to contact an individual s Trade Union Representative or chosen companion, at the earliest opportunity. However, a suspension meeting may proceed without a companion present. 8.7 The employee s manager has the authority to suspend an employee from duty. In circumstances where that manager is unavailable, another manager on duty may assume this responsibility. 8.8 In carrying out the suspension, the manager must: state why the employee is being suspended make it clear that suspension is not a form of disciplinary action make it clear that the employee should not contact other Trust employees while at work or come back onto Trust premises without the prior permission of their manager (except for the purposes of personal or family healthcare) NTW(HR)04 Disciplinary Policy 5

9 inform the employee of his/her right to be accompanied by a Trade Union representative or fellow worker at any meetings make it clear that independent support is available to the employee from the counselling service or Occupational Health Department 8.9 Whilst on suspension an employee must remain contactable and must be available to attend for any investigatory interview or disciplinary hearing during normal office hours unless there are specific circumstances which prevent this. They must not engage in secondary employment during the hours they would normally work for Northumberland, Tyne and Wear NHS Foundation Trust or engage in any bank work whilst on suspension. The specific arrangements regarding contactability and availability must be agreed between the employee and the manager at the time of suspension A letter confirming paragraphs 8.8 and 8.9 above should be sent to the employee within five working days of the suspension. An IR1 form must be completed when a member of staff is suspended Suspension should be with full pay and enhancements. Should the employee subsequently become ill and provide a sick note, he/she will still be considered to be on suspension, although sick pay regulations will apply (eg up to the employee s entitlements) Investigations should be conducted expeditiously and completed at the earliest opportunity. Any suspension should be for the minimum necessary period of time. If the suspension continues beyond 14 days, the manager must inform the employee in writing of the likely timescale. In the event of suspension being necessary for a longer period, the manager must undertake a review every calendar month with the outcome reported in writing to the employee and a copy sent to the Director of Human Resources The Considering Manager must conduct a formal review in the event that a suspension continues beyond 3 months to ensure that appropriate progress is made. This will be reported to the Senior Management Team by the Director of HR. 9. Formal Procedure Conduct Issues 9.1 In circumstances where informal actions have not achieved the required improvement(s) and minor breaches of discipline are persistent, or where more serious breaches of discipline are alleged to have occurred, the formal Disciplinary Procedure should be invoked as set out below. However, it is important that a number of factors are considered before proceeding. 9.2 Considerations before proceeding It is important that the HR Department are consulted before the formal procedure is started. NTW(HR)04 Disciplinary Policy 6

10 9.2.2 Where, exceptionally, it is felt that an internal investigation may prejudice Protection of Vulnerable Adult, Safeguarding Children regulations or Management of Allegations (Appendix 3), fraud; theft; police; IT or other enquiries, the investigation may not be able to commence. Reference should be made to the appropriate regulations or IM&T policy The Counter-Fraud Officer must be informed before an investigation is instigated where there is an allegation of theft, fraud, misuse of public funds or wilful damage. Reference should also be made to the Trust Counter-Fraud policy In exceptional circumstances, suspension may be necessary see section Informing the employee of the allegation(s) against them Where, after discussion with HR, it has been decided to proceed, the employee s manager (the considering manager) should speak to the member of staff concerned, giving the following information: the nature of the disciplinary matter or complaint that there will be a thorough investigation into the allegations that the employee will be given sufficient opportunity to respond to the allegations that no disciplinary action can be taken until after an investigation and disciplinary hearing are completed that at all stages of the procedure the employee may be accompanied by a Trade Union representative or fellow worker The member of staff should receive written confirmation of the above within five working days. Normally the employee s line manager will take the role of considering manager. However, where the allegations appear to be potentially serious, or where the employee s line manager is not available, an alternative manager or director may perform this task. 9.4 The Investigation An investigating officer will be appointed to conduct a balanced and reasonable investigation into the facts. An HR representative will normally be nominated to assist in the investigation although, on occasion, this may not be required with the agreement of the Associate Director of HR (People Management) The investigation will vary depending on the nature of the allegations but may include the following: obtaining clarification or specific details of the allegations NTW(HR)04 Disciplinary Policy 7

11 ensuring all parties are aware of the need to comply with confidentiality requirements meeting the employee concerned to ascertain their version of events, ensuring that he/she is advised of their rights to be accompanied and requesting a statement from the individual interviewing witnesses and other involved persons. Notes will be taken at these meetings which will be signed and used as statements. Witnesses will be advised that these will be released to the employee and that they may be required to attend a hearing. ensuring all notes are signed and dated by the author and returned from witnesses, without delay gathering other paper evidence such as timesheets, clinical records, copies of policies or procedures which are alleged to have been breached, training records and other relevant information viewing IT records (in accordance with Trust policy and legislation) any other information that may be considered pertinent to the investigation It may be necessary to interview the employee on more than one occasion. The employee may make counter-allegations or declare mitigating circumstances which require further investigation and it may be necessary to re-interview witnesses and others involved. There is no requirement to undertake the investigation in any particular order, although the individual concerned must always have an opportunity to hear all allegations against him/her and be able to provide their version of events On rare occasions an investigation may highlight additional concerns about the employee. Where this is the case, the considering manager must be informed and any additional allegations put to the employee in writing and fully investigated On occasion a witness may request their statement to be confidential and/or withheld from the employee. They may also state that they do not wish to attend a hearing. In these circumstances, HR advice must be sought before the individual is interviewed and no assurances about confidentiality should be made until after this has been fully discussed with HR. 9.5 The right to be accompanied to an investigative meeting An employee has a statutory right to be represented at a Disciplinary Meeting (Disciplinary Hearing) or Disciplinary Appeal Hearing Employees do not have a statutory right to be accompanied at a meeting to investigate an allegation however the Trust believes in partnership working with our Staff Side colleagues so every effort should be made to accommodate a request to be accompanied providing it does not delay NTW(HR)04 Disciplinary Policy 8

12 the investigation It will be the responsibility of the individual under investigation to make arrangements to be accompanied or represented as appropriate The employee should notify the investigating manager and HR who will accompany them to a meeting Wherever possible, the investigating officer should allow the companion (ie the Trade Union representative or fellow worker) the right to have a say in the date and time of any meetings. If the companion cannot attend on a proposed date, the member of staff can suggest an alternative time and date so long as it is reasonable and not more than five working days after the original date An individual may on occasion request that they be accompanied by a particular individual (eg a particular Trade Union representative) to an investigative meeting. If this is likely to extend the length of the investigation (eg because of non-availability of the representative) the investigating officer will need to make a decision whether this is reasonable. This will depend on the circumstances of the individual case but it would not be reasonable for an employee to insist on being accompanied by a companion whose presence would prejudice the investigation or who might have a conflict of interest. Nor would it be reasonable for a worker to ask to be accompanied by a particular colleague or representative who is not available when someone suitably qualified (eg another representative in the same union) was available to attend Witnesses have no right to be accompanied, although this will be facilitated wherever possible when a request is made. However, nonavailability of a Trade Union representative or fellow worker will not result in the postponement of a witness interview and staff should be made aware that they have a duty to co-operate with any investigation. 9.6 Investigation Outcome The Investigating Officer will collate all information collected during the investigation and prepare a report. The report should represent a reasonable investigation, covering the facts and key points discovered and represent a fair and balanced view, including any rebuttal of the allegations by the individual and evidence from any source to support this The Investigating Officer s report should not prosecute a case and should not recommend whether or not disciplinary action is deemed appropriate. However, if during the investigation it becomes evident at any stage that there is no case to answer, the Investigating Officer should inform the Considering Manager as a matter of priority so that the matter NTW(HR)04 Disciplinary Policy 9

13 can be closed and the employee informed without delay If the Considering Manager is satisfied there is no case to answer, the employee should be notified and this information confirmed in writing. A copy will be sent to the employee s representative should they be involved The Considering Manager may decide that the issue should not go forward to a disciplinary hearing but that some other action may nonetheless be appropriate. This could include taking informal action (as in section 4 above) or invoking other steps other than disciplinary (eg referral to Occupational Health) If the Considering Manager believes there is a case to answer the matter should progress to a Disciplinary Meeting (hearing) as soon as possible. The Considering Manager will normally chair the Disciplinary Panel and the Investigating Officer will usually present his/her findings (with HR support as appropriate). Nothing in this policy, however, prohibits another manager from assuming either of these roles at a hearing, although it is important that any other members of the Disciplinary Panel have not previously been involved in the case. 9.7 Arranging a Disciplinary Meeting (Hearing) The Considering Manager will arrange a Disciplinary Meeting (hearing) if he/she deems this appropriate after consideration of the Investigation Report Authority to take disciplinary action is set out in Appendix 4. Where necessary, the Considering Manager at a Disciplinary Meeting (hearing) may need to change to take account of the potential seriousness of the allegations It is important to note that the Disciplinary Meeting (Hearing) remains part of the investigation stage of the process and its purpose is to hear the facts discovered to date, establish any further facts, listen to the individual s response and any mitigation before the panel reaches a conclusion on whether or not disciplinary action is necessary The Disciplinary Meeting (hearing) should be arranged, and the employee informed by a letter containing the following information: date, time and venue of the Disciplinary Meeting (hearing) details of the allegation(s) to be considered that disciplinary action may take place depending upon the outcome of the hearing that the employee has a right to be accompanied at the Disciplinary Meeting (hearing ) by a Trade Union representative or fellow worker NTW(HR)04 Disciplinary Policy 10

14 that the employee has a right to call witnesses. at least five working days in advance of the Disciplinary Meeting (hearing) the employee should receive a copy of the Investigating Officer s report and supporting information Letters will normally be sent by recorded delivery/by hand; whichever is appropriate Employees will be given at least five working days notice of the date of a Disciplinary Meeting (hearing). This notice requirement does not apply where a hearing has already commenced and is to be reconvened following an adjournment Employees have the right to be accompanied to a Disciplinary Meeting (hearing) by a Trade Union representative or fellow worker and the employee should inform the Trust who they have chosen as a companion Wherever possible, the Considering Manager should allow the companion (ie the Trade Union representative or fellow worker) the right to have a say in the date and time of any meetings. If the companion cannot attend on a proposed date, the member of staff can suggest an alternative time and date so long as it is reasonable and not more than five working days after the original date An individual may request that they be accompanied by a particular individual (eg a particular Trade Union representative) to a Disciplinary Meeting (hearing). If this is likely to extend the timescale (eg because of non-availability of the representative) the Considering Manager will need to make a decision whether this is reasonable. This will depend on the circumstances of the individual case but it would not be reasonable for an employee to insist on being accompanied by a companion whose presence would prejudice the investigation or who might have a conflict of interest. Nor would it be reasonable for a worker to ask to be accompanied by a particular colleague or representative who is not available when someone suitably qualified (eg another representative in the same union) was available to attend. 9.8 The Disciplinary Meeting ( Hearing) At the hearing the following procedure will apply: the Investigating Officer will state the management case and may call witnesses the employee and/or their representative may ask questions of the Investigating Officer and any witnesses called members of the Disciplinary Panel may ask questions of the Investigating Officer and any witnesses called NTW(HR)04 Disciplinary Policy 11

15 the Investigating Officer can re-examine witnesses the employee and/or their representative will put his/her case and may call witnesses the Investigating Officer may ask questions of the employee and any witnesses called the members of the Disciplinary Panel may ask questions of employee, and any witnesses called the employee and/or their representative may re-examine witnesses the Investigating Officer will sum up the management side case the employee and/or their representative will sum up their case the panel will adjourn to consider the evidence and any mitigation and reach a decision Witnesses will only be present at the hearing while they are giving their evidence. There is no right (and it is not normally necessary) for witnesses to be accompanied, other than in exceptional cases where support may be needed (eg in bullying or harassment cases) There may be occasions where witnesses do not wish to attend a hearing. There is a duty on all employees to co-operate and participate fully with all stages of the disciplinary procedure and, if requested, individuals would be expected to attend in all but the most exceptional circumstances. The HR Department will provide advice in these cases prior to the hearing. 9.9 Decision Where the facts of a case call for disciplinary action to be taken the manager conducting the Disciplinary Meeting (hearing) must: consider the employee s general record including relevant active disciplinary sanctions consider any mitigating circumstances i.e. age, length of service consider appropriate action in terms of fairness and consistency with other disciplinary decisions within the Trust never dismiss for a first breach of discipline except in cases of gross misconduct Following the Disciplinary Meeting (hearing), the manager conducting the hearing must inform the employee of the decision and send a letter within seven days of the decision. The letter should confirm the following: the decision taken clear reasons for the level of disciplinary action, if any, and period of review, if appropriate any future improvement expected of the employee potential future action if improvement is not achieved NTW(HR)04 Disciplinary Policy 12

16 where a disciplinary sanction has been applied, inform the employee of their right to appeal and to whom and the timescales for appeal 9.10 Disciplinary Sanctions - Warnings The following levels of warnings are available and will remain active for the following periods: First written warning twelve months Final written warning twenty-four months For minor breaches of discipline, a first written warning will be appropriate. Where there is a more serious breach of discipline, a final written warning or dismissal may be necessary Transfer or Demotion In addition to warnings and/or in place of other disciplinary outcomes a decision may be made to transfer or demote an individual. This decision cannot be made unless the misconduct was such to warrant dismissal, but has been reduced to another sanction when mitigating factors have been taken into account The employee will have a choice as to whether or not to accept these sanctions as an alternative to dismissal. If he/she refuses then dismissal will apply An employee who agrees to work at the downgraded position will accept that their wages/salary will be adjusted accordingly (i.e. protection of salary will not apply) Dismissal with Notice If a worker s conduct or performance persistently fails to improve a final decision may be made to dismiss following appropriate warnings as outlined in paragraph above Summary Dismissal In cases where gross misconduct is established, the employee may be liable for summary dismissal. This is termination of the contract without notice or pay in lieu of notice. In these circumstances no pay in lieu of holiday entitlement will be made, other than pay in lieu of statutory holiday entitlement Records of Disciplinary Action Records of disciplinary action will be held on the employee s personal file. They will be disregarded for disciplinary purposes after the expiry date of NTW(HR)04 Disciplinary Policy 13

17 the warning as shown above Appeal An employee has the right of appeal against any formal disciplinary action. See section 11 for details. 10. Formal Procedure Performance Issues 10.1 In circumstances where informal actions have not achieved the required improvement(s) and minor problems with performance are persistent, or where performance is substantially below expectation, the formal procedure should be invoked as set out below This procedure does not apply to medical staff where the Handling Concerns About Doctors Policy (NTW(HR)02) should be applied Issues connected to ill Health or Disability Where issues are connected to sickness absence or disability, the Sickness Management Policy may apply and advice should be sought from the HR Department Poor Performance Employees have a responsibility to achieve a satisfactory level of performance and should be given help and encouragement to reach it All employees are entitled to at least annual appraisal in accordance with the Knowledge and Skills Framework and regular feedback from their managers on how they are doing in their job Agenda for Change provisions apply with regard to staff progressing through salary bands and gateways. This policy should be applied alongside those provisions If a satisfactory level of performance is not achieved, managers should meet in private with the employee to point out how his/her performance fails to reach the required standard. Consideration should be given as to whether any shortfall is due to unreasonable expectations, or to a lack of proper explanation of what the job entails Standards of performance should be reasonable, realistic and measurable. Managers should note that careful recruitment and selection, using a well written job description, personal specification and KSF outline, followed by appropriate training will help to minimise the risk of poor performance. NTW(HR)04 Disciplinary Policy 14

18 At interview candidates should be made aware of the exact nature of the job and left in no doubt as to what is expected of them. Special attention should be paid to ensuring that potential employees for whom English is not their first language, or whose experience of working is limited, understand what is required of them. Cultural differences should be acknowledged and actively addressed by managers. Candidates for employment should have information provided about particulars which might affect job performance such as the working environment and shift patterns Procedure - Setting Standards It is the manager s responsibility to set standards expected from their staff Professional advice should be taken as appropriate and standards should be realistic and defined in terms of quantity, quality and timescales and linked to KSF profiles Objectives and training needs should be agreed between the manager and the member of staff and regular reviews should take place. A record of objectives and review meetings should be signed and kept by both parties. Objectives may be reviewed earlier than planned at the request of either party If the employee shows no (or insufficient) improvement over the agreed period, the manager will consider formal action. The employee should be informed of the manager s continued concern and his/her intention to implement the formal stage of the procedure. The employee should be given the opportunity to prepare and state their views and explain any mitigating circumstances First Performance Warning Review Meeting The aim of the discussion will be to: clearly explain the required standard expected and how the employee s performance falls short of this standard. This may include issues of behaviour and attitude to work which are not sufficiently serious to be classified as misconduct. identify the cause(s) of the poor performance and determine what, if any, remedial action can be taken obtain the employee s commitment to reaching the required standard. If however, the employee feels the standard is unreasonable, then this should be discussed and clarified. In the event that agreement cannot be reached, the manager will decide the standard. In doing so, the manager should give consideration to the expected standards required of staff carrying out similar duties in the department NTW(HR)04 Disciplinary Policy 15

19 where training has been identified, the manager will make arrangements for this to take place. During this training period the manager will provide additional support to enable the employee to reach the required standard set a reasonable time period for the employee to reach the standard and agree on a monitoring system during that period. A review date will be set to assess whether or not the required improvement in performance has taken place. The review will normally take place within 4 to 13 weeks, depending upon the circumstances of the case and the availability of training issue the employee with a First Warning of Unsatisfactory Performance and explain to the employee what will happen if the standard is not met. This may include applying a stop on salary progression through a band or at a Gateway in accordance with Agenda for Change terms and conditions. make the employee aware that they have the right to appeal against the First Performance Warning. An appeal should be submitted within seven days of the date of the letter, to the next level of management above the manager who issued the First Performance Warning This must be confirmed to the employee in writing within five working days of the meeting, outlining the content and outcome of the meeting, the review period and the standard to be achieved and the right of appeal However, should this discussion: result in a decision that the established standards are not reasonably attainable; the standards will be reviewed establish that the performance problems are related to the employee s personal life; the necessary counselling/support will be provided establish that the performance problems are related to a medical condition; the employee will be referred to the Occupational Health Department and the matter may be dealt with under the Managing Sickness Absence Policy. lead to the decision that the poor performance emanates from a change in the organisation s standards; these standards will be explained to the employee and help will be offered to obtain conformity with the standards make it apparent that interpersonal relationships are related to the poor performance, then, whenever possible, steps will be taken to resolve these Final Performance Warning Review Meeting If the employee does not reach the level of performance required by the review date, the manager will arrange to see the member of staff again at a Final Warning Review Meeting. NTW(HR)04 Disciplinary Policy 16

20 When conducting this meeting, managers should take additional action as outlined below, while continuing to take account of the guidance at the First Warning Review Meeting The following steps should be taken: identify the shortfall between the employee s performance and the required standard review the reasons for the employee failing to meet the required standard of performance re-iterate the required standard to be achieved consider further support and training as appropriate consider whether there are alternative vacancies, which the employee would be competent to fill. If there are, details will be brought to the employee s attention of vacancies at a similar or lower grade and employees will be guaranteed an interview if they meet the minimum criteria outlined in the person specification. However, no appointment can be guaranteed. The employee will be given full details in writing before being required to make a decision about accepting an offer a further review date will be set to assess whether or not the required improvement in performance has taken place. The review will normally take place within 6 to 13 weeks depending on the circumstances of the case issue the employee with a Final Warning of Unsatisfactory Performance inform the employee that failure to reach the required standard may lead to dismissal make the employee aware that they have the right to appeal against the Final Warning. Any appeal should be submitted in writing, within seven days of the date of the letter to the appropriate manager or director (see Appendix 4) the manager must write to the employee within five working days of the interview confirming the Final Warning, the content and outcome of the meeting, the review period and standard to be achieved and the right of appeal Dismissal, Transfer and Demotion If the employee does not reach the level of performance required by the review date, a further meeting will be arranged when consideration will be given to the employee s continued employment with the Trust In the absence of an important indication to the contrary, dismissal will normally take place at this point. Minimum periods of notice in accordance with the Employment Rights Act must be given. Transfer to an alternative post, with that post s terms and conditions may be considered. This may NTW(HR)04 Disciplinary Policy 17

21 be offered as an alternative to dismissal and with the agreement of the individual and the manager in the new department. In such circumstances, the employee may still appeal against the action taken. The Trust is not obliged to create a suitable alternative post This outcome must be confirmed to the employee in writing within seven days of the date of the decision, and advising of the right of appeal. 11. Appeals 11.1 Employees have the right of appeal against any formal disciplinary action as follows: First and final written warnings, first and final Warning of unsatisfactory performance, transfers and demotions Appeal is to the appropriate higher level of management not previously involved 11.2 Appeal against Dismissal Appeal is to the Chief Executive or a Director not previously involved in the process An HR Manager will attend all hearings for advice to either party or the panel An appeal must be lodged in writing with the Director of Human Resources within ten working days of the receipt of the disciplinary letter which confirmed the action taken. All appeals will be acknowledged Wherever practicable, appeals will be heard within four weeks of being lodged Where an appeal against dismissal is upheld, reinstatement should be dated from the effective date of dismissal, and may therefore result in back-dating of pay. The Director hearing the appeal will make decisions regarding any conditions for the reinstatement of the member of staff The Trust Appeals Procedure is attached as Appendix Additional Information 12.1 Right to be Accompanied An employee has a statutory right to be accompanied at a Disciplinary Meeting (Hearing) or Disciplinary Appeal Hearing throughout the disciplinary by a single companion who is either: NTW(HR)04 Disciplinary Policy 18

22 a fellow worker employed by the Trust, or a representative of a trade union The companion should be allowed to address a disciplinary hearing in order to: put the employee s case sum up the employee s case respond on the employee s behalf to any view expressed at the hearing The companion can also confer with the worker during the hearing. It is good practice to allow the companion to participate as fully as possible in the hearing, including asking witnesses questions The companion has no right to answer questions on the employee s behalf, or to address a hearing if the worker does not wish it, or to prevent the employer from explaining their case. 13. Trade Union Officials 13.1 As employees, representatives of staff side organisations are subject to the normal disciplinary standards. However, no disciplinary action should be taken until the circumstances of the case have been discussed with a full time official. Accredited representatives will not be subjected to any disciplinary action relating to their role as a trade union representative The full time officer should be informed at the earliest possible opportunity, normally prior to an investigatory hearing or suspension if this is involved. 14. Complaints about the Application of the Policy 14.1 Concerns about the application of the policy will be handled as part of the normal appeal and will not be considered as a separate grievance unless the grievance involves a complaint of unlawful discrimination or that the action is not genuinely on grounds of capability or conduct. 15. Keeping Records 15.1 It is important, and in the interests of both the Trust and its employees, to keep written records during the disciplinary. Records will be kept by the HR Department on the individual s personal file and will include: the complaint against the employee the employee s defence findings made and actions taken the reason for actions taken NTW(HR)04 Disciplinary Policy 19

23 whether an appeal was lodged the outcome of the appeal any grievances raised during the disciplinary procedure and subsequent developments Managers are responsible for ensuring that all information is sent to HR Records should be treated as confidential and be kept no longer than necessary in accordance with the Data Protection Act This Act gives individuals the right to request and have access to certain personal data Copies of meeting records should be given to the employee as part of the investigation, including copies of any formal minutes that may have been taken as part of the disciplinary investigation. In certain circumstances (for example to protect a witness) the Trust might withhold some information. 16. Role of Human Resources 16.1 Human Resources managers are available to provide support to management and staff throughout any disciplinary. A Human Resource Manager will be present at any disciplinary hearing to provide advice and support. 17. Criminal Charges or Convictions Outside Employment 17.1 Staff who are arrested on any charge or cautioned or served with a summons for a criminal charge must inform the Trust, this would usually be via line management. Failure to do so may render the individual liable to disciplinary action If an employee is charged with, or convicted of, a criminal offence not related to work, this is not in itself reason for disciplinary action. The manager should establish the facts of the case and consider whether the matter is serious enough to warrant starting the disciplinary procedure. The main consideration should be whether the offence, or alleged offence, is one that makes the employee unsuitable for their type of work. Similarly, an employee should not be dismissed solely because they are absent from work as a result of being remanded in custody A decision should not normally be deferred simply because the outcome of a prosecution is not yet known Where a Criminal Records Bureau check reveals undeclared convictions, the employee will likely be subject to an investigation under the disciplinary policy and this may potentially result in disciplinary action. NTW(HR)04 Disciplinary Policy 20

24 18. Professional Conduct 18.1 Employees who are governed by professional codes of conduct through a professional body (e.g. the Nurses and Midwifery Council) will be aware that the Trust has a duty to report incidents which may involve possible professional misconduct to those bodies. The Trust may separately investigate the circumstances and take any necessary internal disciplinary action in accordance with this procedure. 19. Counter Fraud Policy 19.1 The Trust is committed to minimising the opportunities for fraud and corruption wherever they occur, and is committed to taking positive action to achieve this All cases of suspected fraud will be reported to the Trust s Local Counter Fraud Specialist who will ensure the allegations are investigated and reported to the NHS Counter Fraud and Security Management Service as appropriate. Further information can be obtained from Northumbria Internal Audit and Counter Fraud Service. 20. Right to Curtail Procedure in Exceptional Circumstances 20.1 If an employee refuses, or fails to attend a disciplinary or appeal hearing without good reason, the manager or director should be satisfied that every reasonable effort has been made to ensure that the employee attends. The panel may then reach a decision regarding any disciplinary action in his/her absence Where an individual is absent due to sickness, the Considering Manager (in consultation with HR) should obtain Occupational Health advice on whether the individual will be fit to attend the hearing in the foreseeable future. It may not be reasonable to delay a hearing for an indefinite period and, if an individual is unable to attend, arrangements should be offered for the employee to submit written submissions or for a representative to attend on his/her behalf. 21. Development 21.1 This policy has been introduced to provide effective and timely management of disciplinary matters. It will support the management of cases in line with timescales outlined in the Trust s Workforce Strategy. 22. Consultation and Ratification 22.1 This policy has undergone a comprehensive consultation and has been ratified by the Trust s Modernisation, Organisation Development and Programmes Committee. NTW(HR)04 Disciplinary Policy 21