Disciplinary Policy and Procedure for Academy Based Staff

Transcription

1 Disciplinary Policy and Procedure for Academy Based Staff 1. Policy Statement Governing bodies are required to adopt formal policies and procedures for dealing with staff conduct and discipline. A sound standard of discipline is essential for the efficient and effective management of schools. This procedure is designed to help and encourage all employees to achieve and maintain satisfactory standards of behaviour and to comply with the rules of the Governing Body. The Governing Body is responsible for ensuring that all school staff receive consistent and fair treatment and that matters are dealt with speedily. This procedure is recommended for adoption by the Governing Bodies of all schools, including Foundation and Voluntary Aided schools. Following its adoption, the procedure should be made known to all staff and remain accessible to them. This policy has been drawn up following consultation with the recognised Trade Unions. Where the Governing Body wishes to deviate from this proposed policy or adopt any other policy, it is the responsibility of the Governing Body to arrange consultation with recognised trade unions. It is important to read these procedures in conjunction with the guidance notes. 2. Scope The procedure applies to all school-based staff, other than support staff within their probationary period, where the Governing Body has adopted this policy, including Foundation and Voluntary Aided schools. This procedure does not apply where there are matters of: Grievance which is dealt with under a separate procedure adopted by the Governing Body; Capability for which there is a separate procedure adopted by the Governing Body, unless it is clear that the employee is capable of reaching the required standard and has not done so; Ill health for which there is a separate procedure adopted by the Governing Body, unless there is good reason to believe that the absence or ill health is not genuine; Bullying, harassment, discrimination and/or victimisation for which there is a separate procedure adopted by the Governing Body. 3. Legal Background This policy takes account of the amendments made as a result of the Employment Act 2008 which repealed the Employment Act 2002 (Dispute resolution) Regulation 2004 This policy also takes account of the introduction of the ACAS Code of Practice on Disciplinary and Grievance Procedures that came into effect on 6th April

2 This procedure is also based on Sections 35(8) and 36(8) of the Education Act Principles This procedure is primarily concerned with improving discipline, not applying disciplinary penalties. It aims for an outcome which is fair and constructive. It is not intended that the procedure should replace normal interchange between the Principal and a member of staff in the day to day running of a school, whereby discussions may take place informally. It is important that staff are made fully aware of the academy s standards and expectations of conduct and behaviour and the possible consequences of falling below these standards. Employees should be encouraged to seek the advice of a trade union and be informed of their right to be accompanied by a work colleague or trade union representative at all formal stages. No disciplinary action will be taken without a prompt and thorough investigation into the circumstances. Mediation In certain circumstances it may be appropriate to consider mediation to resolve disciplinary matters. Mediation may be considered at any point in the process. Further advice on mediation can be provided by your Senior HR and Change Advisor. The timescales within this policy are recommended timescales only. If it is not possible to respond within these timescales, the parties involved must be told why and when a resolution or outcome can be expected. Employees will be informed in writing of the complaints against them at the time of notification of any disciplinary hearing, and provided with supporting evidence at the time of notification of the meeting. Employees will be given the chance to have their say before a decision is reached. The procedure outlines what disciplinary action may be taken against an employee. Formal disciplinary action can be taken at any level depending on the nature of the misconduct. All proceedings, witness statements and records will be kept confidential by all parties. An employee will not normally be dismissed for a first breach of discipline except in the case of gross misconduct when the penalty may be dismissal without notice (summary dismissal). The employee will have the right of appeal against any formal disciplinary action under this procedure. The procedure ensures: that the employee is given an explanation for any sanction. that the employee will be heard in good faith and that there is no pre-judgement of the issues. that where the facts are in dispute, no disciplinary penalty is imposed until the case has been carefully investigated. The procedure applies to all employees, *irrespective of their length of service, status or number of hours worked. (Please refer to 2.1 for rules on support staff in their probationary period)

3 An individual faced with possible disciplinary action may be anxious about the situation, therefore the Principal should make the employee aware of the confidential counselling services available as follows: All school employees - Employee Assist - Tel: employeeassist@relatenorthants.org.uk Teachers - Tel: Responsibility The Governing Body has overall responsibility for dismissing staff, with powers to delegate to the Principal responsibilities up to and including initial determination that the member of staff should cease to work at the academy. Under the Education Act 2002 and the School Staffing (England) Regulations 2009, the Principal should be given the delegated responsibility to make decisions up to the determination that the member of staff should cease to work at the academy, (except in certain circumstances, see 5.3 below). Where the Council is the employer, the head teacher must notify their Senior HR and Change Advisor, in writing, of the determination that the member of staff should cease to work at the academy, and the Council will carry out the formal dismissal, with appropriate notice, within 14 days, following which there is an opportunity for appeal to a panel of Governors. The Principal should therefore lead the process of making the determination that the member of staff should cease to work at the academy unless he/she has been directly involved in disciplinary procedures leading to dismissal; has instigated a proposal to dismiss; or is a witness of particular conduct giving grounds for the dismissal in question. In situations where it is not appropriate for the Principal to perform these functions a Disciplinary Committee of the Governing Body will be responsible for making such decisions. The Governing Body will nominate three of its members to form the Disciplinary Committee and a further three Governors to form the Appeals Committee. It is not appropriate for Staff Governors to sit on these committees and no Governor can be a member of both. It is strongly recommended that the Principal seeks professional advice from their Senior HR & Change Advisor as early as possible

4 6. Right to be accompanied An employee has a statutory right to be accompanied where a disciplinary meeting could result in a formal warning, some other disciplinary action or confirmation of disciplinary action (at appeal). The employee can be accompanied by a work colleague or a trade union representative or an official employed by a trade union, if they are a trade union member. A trade union representative who is not an employed official must have been certified by their union as being competent to accompany a worker. To exercise their statutory right, an employee must make a reasonable request to be accompanied. It would not be reasonable, for example, to insist on a companion whose presence may prejudice the hearing. The companion may address the meeting to put and sum up the employee s case, respond on behalf of the employee to views expressed at the meeting and confer with the employee during the meeting. The companion does not have the right to answer questions on behalf of the employee, address the meeting if the employee does not wish it or to prevent the employer from explaining its case. 7. Special Circumstances Trade Union Officials If the subject of a disciplinary matter is an official representative of a trade union, no action will be taken beyond the informal stage, until the circumstances have been discussed with a full time official as nominated by the relevant trade union, after obtaining the employee s agreement to discuss the matter. Where the Principal is the subject of the procedure, the Chair of Governors, or other designated Governor, will replace the Principal in initiating any action. In such cases the Chair of Governors should notify and contact the Senior HR and Change Advisor for advice before any action is taken. Child Protection Issues If a complaint against an employee relates to a child protection issue then it is essential that the investigator contacts the Council s Child Protection Officer at the outset to discuss how to proceed. The outcome may be that an investigation should be carried out by the Police and/or Child Protection Team in which case any investigation by the academy will not proceed until discussion has taken place with the relevant agencies. If an employee who works with children is dismissed or is moved away from work on the grounds of misconduct which harmed a child or placed a child at risk of harm, then the employee s name and details will be referred to the Independent Safeguarding Authority (ISA) for inclusion on the appropriate list. In such cases, details relating to teaching staff will also be referred to the General Teaching Council. Criminal Offences Criminal offences outside employment will not be treated as automatic reasons for disciplinary action. The main consideration will be whether the employee s conduct warrants action because of its employment implications

5 Generally, disciplinary action will not be postponed because other proceedings are contemplated or pending. The school will investigate the facts as far as possible and take action appropriate to the findings. There may be circumstances which may require the Principal or Chair of Governors to liaise with the Police or other statutory bodies, and the academy may need to take other proceedings into account when managing its process. Where criminal charges result in an employee being unable to fulfil their contractual obligations this may result in dismissal. In all cases advice should be sought from your Senior HR and Change Advisor before any action is taken. Grievance during the disciplinary process Where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the discipline and grievance cases are related it will usually be more appropriate to deal with both issues concurrently. Suspension In some circumstances it may be appropriate to suspend an employee, with pay whilst investigations are carried out. For example, where there is an allegation of gross misconduct or where the employee s presence at the workplace may interfere with the impartiality of the investigation. Only the Principal or the Governing Body (normally the Chair of Governors) can suspend an employee. However, only the Governing Body can lift the suspension. The Principal or Governing Body must keep one another immediately informed of any action they may take in relation to suspension. Advice should be sought from the school s Senior HR and Change Advisor before suspension. Suspension should not be regarded in any sense as a disciplinary measure or implying guilt, but as an exceptional measure to enable a proper investigation to take place. Therefore consideration should be given to alternatives to suspension (e.g. moving the employee to other work or another location) in the first instance. Suspension should only be applied where the circumstances of the case make it unacceptable for the employee to remain in school while an investigation is carried out. Suspension is always on full pay. Some examples which where suspension may be appropriate are as follows (not an exhaustive list): where children are at risk; where staff are at risk; where the employee needs protection; where the allegation if proved is likely to amount to gross misconduct; where the academy s reputation may otherwise suffer unduly; where the presence of the employee may impede the investigation. Where suspension is under consideration, whenever practicable, the employee should be called to a meeting. This may be at very short notice

6 The period of suspension should be kept as brief as possible and kept under regular review by the Principal or Chair of Governors. Investigations should be started immediately. The suspension will usually last until the investigation has been concluded or any resulting disciplinary hearing has been held. The employee should not contact other members of staff or come onto school premises during the suspension without the written permission of the Principal or Chair of Governors. However, where practicable, the following support should be offered to the employee during the period of suspension: The name of a responsible person to act as a point of contact, to provide information on the progress of the investigation. Information on counselling available through the County Council s Counselling Service, Teacherassist and other appropriate sources of support. Reasonable access to information which will help the employee to prepare their case. If an employee to be suspended is a trade union official, no steps in the procedure should be started until the circumstances have been discussed with a senior representative or paid official of the trade union, after obtaining the employee s agreement to discuss the matter. Written confirmation of the suspension should be sent within one working day. The Council should be also notified of any suspension from duty and a copy of the model letter at Appendix 6 sent to your Senior HR and Change Advisor. 8. Resolving Issues Informally Where possible, matters relating to conduct and discipline should be resolved informally. This is an important management role for the Principal and senior members of staff. This may be achieved by giving informal advice, coaching and counselling. For the purposes of this section Principal means a senior member of staff with management responsibility for the employee concerned. The Principal will talk to the employee in private. This will be a two-way discussion aimed at pointing out the shortcomings in conduct and encouraging improvement. The Principal will listen to whatever the employee has to say about the issues. Where improvement is required the Principal will ensure that the employee understands what needs to be done, how their conduct will be reviewed and over what period. The employee will be told that if there is no improvement, the next stage will be under the formal disciplinary procedure. The agreed action will be confirmed in writing. Written notes should be kept of the meeting which are shared with both parties. Notes should record any agreed support, training, etc. If during discussions it becomes obvious that the matter may warrant formal investigation the meeting should be stopped and the employee will be told that the matter will be continued under the formal procedure. 9. Formal Procedure Investigation - 6 -

7 Where a complaint of misconduct warrants formal investigation, the Principal should nominate a senior member of staff to conduct a full investigation as soon a possible after the allegations has been made. A Guide to Investigation can be found at Appendix 1. The Principal will not normally carry out the investigation themselves as they may be required to deal with the matter formally at any stage up to and including dismissal. However, where the Principal already has considerable knowledge of the complaint, it may be appropriate for them to undertake the investigation. Any subsequent disciplinary decision would then be taken by a panel of Governors. If the complaint is against the Principal or the Principal is involved in the complaint, then the Chair of Governors should undertake the investigation or appoint an appropriate person who may be external and approved by the Council. Any subsequent disciplinary decision would then be taken by a panel of Governors. The aim of the investigation is to establish the facts of the case as promptly and thoroughly as practicable. The employee must be informed in writing: That an investigation is taking place and that they will be given the opportunity to respond to the allegation. Of the details of the complaint/allegation. That they may be accompanied by a work colleague or trade union official to any formal meetings if they are a member of a trade union. Once the investigation is complete the Investigating Officer will produce a report and submit this to the Principal. It is for the Principal to decide whether or not there is a case to answer (see report template at Appendix 1a). The outcome of the investigation will be notified to the employee. If there is no case to answer, the matter will be closed and the employee informed in writing. The Principal may resolve the matter informally. If there is a case of misconduct to answer, the matter will be referred to a formal disciplinary hearing before the Principal. The employee will be notified in writing. Examples of Misconduct The following are examples of misconduct and in severe cases some examples could be considered as gross misconduct. This is not an exhaustive list. leaving the place of work during the employee s normal working hours without permission; frequent failure to attend work punctually; failure to comply with the academy s agreed procedures e.g. failure to notify absence; making unauthorised private telephone calls or sending personal mail at the school s expense or unauthorised use of the Internet; failure to comply with a reasonable instruction; failure to exercise proper control or supervision over pupils; failure to discharge without sufficient notice the obligations placed on the employee by their contract and terms and conditions of employment; - 7 -

8 abusive behaviour or language that is directed to staff, parents, pupils and members of the public; a wilful attempt to mislead. Examples of Gross misconduct This term is used to describe serious misconduct which may destroy the employment contract between the employer and the employee and make any further working relationships and trust impossible. The following are examples of the sort of conduct that could be regarded as gross misconduct, rendering the employee liable to dismissal without notice. This is not an exhaustive list. victimisation or intimidation of other employees; (Where referred as a disciplinary matter as an outcome of an investigation carried out under the antiharassment, discrimination and bullying at work policy and procedure) serious bullying including cyber bullying, unlawful discrimination or harassment against other employees, pupils or members of the public; dishonesty, including theft, fraud or deliberate falsification of records; acceptance of bribes; physical violence; serious negligence which causes or might cause unacceptable loss, damage or injury; deliberate damage to school property; serious act(s) or persistent repetition of a failure to comply with a reasonable instruction; misuse of the academy s property or name, or bringing the academy into disrepute; being under the influence of illegal drugs or alcohol whilst at work; serious infringement of health and safety rules; sexual offences or sexual misconduct; breach of any professional code of conduct applicable to the job, which could bring the profession or the academy or the Council into serious disrepute; serious abuse of the academy s computer equipment/software; including deliberately accessing internet sites containing pornographic, offensive or obscene material; misuse of official position for personal gain; serious breach of confidence; act(s) relating to issues of child protection. Where gross misconduct is determined at a disciplinary hearing the employee may be summarily dismissed that is dismissed immediately without notice or pay in lieu of notice. However, pay would be reinstated in full back to the date of dismissal if an appeal against dismissal was subsequently successful. Disciplinary Hearing The person hearing the allegation(s) will in most circumstances be the Principal. The school will notify the employee in writing of the hearing, giving at least 5 working days notice and informing them of their right to be accompanied by a work colleague or a trade union representative if they are a member of a trade union. The employee should be given details of the complaint/allegation and informed that either party can produce witnesses and/or written statements and relevant supporting documents at the - 8 -

9 hearing. An exchange of documents should take place at least 5 working days before the hearing although this may be reduced by mutual agreement. Failure by the Employee to Attend An employee who cannot attend a meeting should inform the Principal in advance whenever possible. If the employee fails to attend through circumstances beyond their control e.g. illness, the Principal should rearrange the meeting taking into account the reason. Sickness absence must be supported by a medical certificate. If the employee s representative or colleague cannot attend on the proposed date, the employee can suggest another date that is reasonable and is not more than 5 working days after the original date proposed, unless mutually agreed otherwise. Where the employee has failed to attend two meetings, the meeting will proceed in the employee s absence. Witnesses If witnesses are called to give evidence their identity will be disclosed to the other party in advance, unless exceptional circumstances prevent this e.g. where anonymity is to be preserved. Caution should be exercised where children or juveniles could be called as witnesses. However, where there is a requirement to call children/juveniles, parents or guardians must be informed and given the opportunity to accompany the child/ juvenile at the hearing. The other party will receive advance copies of written witness statements to which reference will be made at the hearing. It is preferable that the authors of statements attend the hearings as witnesses, although in certain circumstances e.g. in the case of children/juveniles, those in the care of the Council or where anonymity is to be preserved, it is acknowledged that this may not be appropriate. *Guidance on the use of anonymous witness evidence can be fount at appendix 16 Minutes Notes of the hearing should be taken and copies of the notes circulated to all parties as soon after the meeting as practicable. The Note taker is normally provided by the academy and will not have been involved in any other part of the formal process. If amendments to the notes are requested by any individual who was present at the hearing, these changes must be made in a separate document, signed and appended to the original notes so that the original document remains unaltered. Support The Principal may call upon their Senior HR and Change Advisor to attend in an advisory capacity only. Making the Decision The Principal will deliberate in private, with the Senior HR and Change Advisor, only recalling the parties to clear points of uncertainty on evidence already given. If a recall is necessary both parties are to return even if only one is concerned with the point giving rise to doubt. The Principal will give the employee their decision at the close of the hearing whenever possible. The decision will be confirmed in writing within 5 working days of the hearing

10 Guidance relating to the disciplinary hearing can be found at Appendix 2. Model letters can be found at Appendices 8 and 9 Outcomes Case not substantiated If the Principal considers that the case against the employee is unfounded, if possible, the employee will be informed of this at the meeting and the decision will be confirmed in writing. All reference to the matter in question will be removed from the employee s personal file. Case Substantiated - Formal action If the Principal considers that the alleged misconduct is substantiated, an appropriate disciplinary action will be taken, having regard to all the circumstances. Wherever possible, the employee will be informed of this at the hearing and the decision will be confirmed in writing. Model letters giving the outcome of the hearing can be found at Appendix 10, 11 and 12. Disciplinary Action Written warning In cases of misconduct, a written warning will be given detailing the reasons for the warning and any improvements required. It will also advise that further action under the procedure will be considered if the improvements required are not met and inform the employee of the right of appeal. A copy of the warning will be kept but will normally be disregarded for disciplinary purposes after 12 months, subject to continuous satisfactory conduct during this period. Final written warning For very serious misconduct which would be insufficient to justify dismissal but would warrant only one written warning; For very serious misconduct which would justify summary dismissal for gross misconduct but a lesser penalty is appropriate in the circumstances; or Where there is still a failure to improve conduct following previous written warning(s). A final written warning will give the reason for the warning, advise that dismissal will result if there is no satisfactory improvement and state the right of appeal. A copy of the warning will be kept on the employee s personal file, but will normally be disregarded for disciplinary purposes after 18 months, subject to continuous satisfactory conduct during this period. Dismissal The sanction of dismissal is likely to be used where: there is a failure to improve or further acts of misconduct have occurred after a final written warning has been given and remains live. Dismissal will be with notice or pay in lieu of notice. There is an act of gross misconduct. Dismissal will be without notice (summary dismissal). The decision to dismiss can only be taken after a hearing before the Principal but may be taken before an appeal hearing takes place. In such cases pay will cease when the decision to dismiss is made and reinstated in full if an appeal is subsequently successful

11 In both cases, the employee will be provided as soon as reasonably possible with written notice of dismissal, the date on which the contract is to end, the reason for dismissal and the right of appeal. Where the Council is the employer, the head teacher must notify their Senior HR and Change Advisor, in writing, of the determination that the member of staff should cease to work at the academy, and the Council will carry out the formal dismissal within 14 days, giving the appropriate notice. Following dismissal there is an opportunity for appeal to a panel of Governors. Please refer to section 5 of this policy for further guidance. Appendices 13 and 13a provide model letters for dismissal where the Council or the school is the employer to be used as appropriate

12 10. Appeal Appeal An employee may lodge an appeal in writing against formal disciplinary action by writing to the Principal within 10 working days of receipt of confirmation of the disciplinary action. The letter of appeal from the employee should state the reasons for appealing: it is against the findings of the previous panel; it is against the form of disciplinary action taken; it is alleged that the disciplinary procedure has been applied defectively or unfairly; new evidence has come to light which was not reasonably available at the disciplinary hearing and which may make a difference to the original decision; The appeal will be heard by the Appeals Committee of the Governing Body within 20 working days of receipt of the request. The Governing Body may call upon a Senior HR and Change Advisor to be in attendance in an advisory capacity only. Evidence presented to the appeals committee must relate to one or more of the four reasons stated above and must enable the assessment of whether or not the allegations against the employee were accurate, justified and substantiated and whether the disciplinary action was appropriate in all the circumstances. New evidence should be provided 5 days prior to the hearing. In exceptional circumstances, additional new evidence is permissible at the appeal. If either party wishes to introduce new evidence, they should give details of the new evidence and provide copies of any supporting documents, names of any witnesses, written statements to be presented. If, at the appeal hearing, the new evidence is of such significance that further investigation, information, clarification is required, it may be appropriate for an adjournment and to reconvene when this has been completed. Notes of the hearing should be taken and copies of the notes circulated to all parties as soon after the meeting as practicable. The Note taker is normally provided by the academy and will not have been involved in any other part of the formal process If amendments to the notes are requested by any individual who was present at the hearing, these changes must be made in a separate document, signed and appended to the original notes so that the original document remains unaltered. Notification of Appeal Hearing The employee will be informed in writing of the place, date and time of the hearing at least 5 working days in advance of the date of the appeal hearing. Making the Decision The Appeals Committee will deliberate in private, with the HR Advisor, only recalling the parties to clarify points of uncertainty on evidence already given. If a recall is necessary both parties will return. The decision will be announced at the close of the hearing whenever possible. The Chair of the Appeals Committee will confirm the decision in writing within 5 working days of the hearing. The decision can confirm or overturn the original decision, or apply a greater, lesser or alternative penalty

13 The decision of the Appeal Committee is final. A Guide to the Appeal Hearing can be found at Appendix 3. Model letters relating to the appeal process can be found at appendices 14 and