Staff Disciplinary and Dismissal Policy and Procedure January 2011

Transcription

1 Staff Disciplinary and Dismissal Policy and Procedure January 2011

2 Staff Disciplinary and Dismissal Policy and Procedure Contents Section Page No. 1. Policy statement 2 2. Purpose and scope 2 Informal action 3. Minor misconduct, unsatisfactory performance or attendance 3 Formal disciplinary action 4. Investigation 3 5. Suspension 4 6. Disciplinary hearing 5 7. Right to be accompanied at a disciplinary hearing 6 8. Disciplinary sanctions 7 9. Disciplinary rules Criminal offences outside employment Independent Safeguarding Authority Trade union representatives Appeals Records HR Services 16. Review and amendment

3 Staff Disciplinary and Dismissal Policy and Procedure 1. Policy statement 1.1 Anglia Ruskin is committed to promoting fairness and consistency in the treatment of employees and the conduct of employee relations. In order to achieve this, the following rules and procedures, which are in line with the ACAS Code of Practice on Disciplinary and Grievance Procedures, have been adopted. 1.2 References in this policy to we, our, and us mean Anglia Ruskin University as the employer. 1.3 All employees should be aware of their obligations with regard to conduct including standards of work performance, and of the likely consequences of the failure to meet these obligations. This is particularly important where there is an impact on student experience. 1.4 We accept that we have an obligation to ensure, so far as is reasonably practicable, that all employees are acquainted with the rules applying to their particular areas of work and know the expected standards of performance and behaviour. 1.5 Employees, too, have a responsibility to familiarise themselves with the general rules and procedures referred to in their conditions of service and the specific working rules and procedures related to their particular areas of work and such amendments as may be made and drawn to their attention from time to time. 1.6 This policy and procedure is not intended to be a contractual term and condition of employment. We reserve the right to amend this policy and procedure from time to time, to omit any part of the procedure, or to apply such other disciplinary or dismissal procedures as, in our absolute discretion, we believe are appropriate in the circumstances. 2. Purpose and scope 2.1 This policy and procedure applies when there has been a failure to meet the required standards of job performance, conduct, attendance, or for a breach of any terms and conditions of employment. 2.2 This disciplinary and dismissal procedure is designed to help and encourage all employees to achieve and maintain required standards of conduct, attendance and work performance. This procedure, however, does not apply to long term ill-health dismissals (please see the Managing Sickness Absence Policy and associated managers guidelines). 2.3 It covers all employees except those within a probationary period of employment, the Vice-Chancellor s Group and the holders of such other Senior Posts as the Board of Governors may determine. Separate procedures apply to Senior Post Holders, and are as set out in the Articles of Government

4 2.4 The aim is to ensure consistent and fair treatment for all. It is acknowledged that there is a requirement under equality legislation to make reasonable adjustments to disciplinary procedures to cater for employees who have a disability. Informal action 3. Minor misconduct, unsatisfactory performance or attendance 3.1 It is not always necessary to use formal disciplinary procedures in cases of minor misconduct or unsatisfactory work performance or attendance. These may be best dealt with informally between the employee's line manager and employee. For most cases of poor performance, informal discussions, coaching, re-training and counselling are considered a better option than proceeding immediately with formal disciplinary proceedings. 3.2 The purpose of taking informal action is to provide an opportunity for improvement or for the matter to be corrected without the necessity for formal disciplinary procedures to be used. 3.3 Where there are concerns about the performance of an employee, managers are encouraged to explain these to the employee via discussions which clarify what good performance looks like, by setting work goals or targets, and by providing support, including timely and positive feedback as appropriate. 3.4 Informal discussions or counselling sessions do not attract the right to be accompanied. They will take place in private and without undue delay whenever there is cause for concern. 3.5 Where an employee s job performance or attendance is below standard because of ill health, managers are also encouraged to deal with the employee sympathetically and to offer appropriate support. However, continued unacceptable under performance or levels of absence may still result in the use of formal warnings under this procedure. 3.6 A reasonable amount of time, reflecting the circumstances of each case, will be allowed for improvement to be demonstrated. If there is insufficient improvement, managers should then follow the formal disciplinary procedure. Additionally, if the misconduct or unsatisfactory performance is considered to be too serious to be classed as minor, formal disciplinary proceedings will normally be taken straight away. 3.7 A note of any informal action taken, including any informal warnings or cautions, should be kept by the line manager for an appropriate period having regard to the circumstances. Formal disciplinary action If we consider it necessary to invoke formal disciplinary action, the following procedure will then apply, but, depending upon the seriousness of the offence, may be invoked at any level including summary dismissal. 4. Investigation 4.1 When a disciplinary matter arises, or when an employee s work performance or attendance falls short of the acceptable standard an investigation must be - 3 -

5 carried out to establish the facts promptly. The employee's immediate line manager will normally carry out the investigation and for the purposes of this procedure is called the investigating officer. 4.2 The scope and extent of the investigation will vary according to the seriousness of the specific complaint. For instance, a complaint about poor time keeping may only require the investigating officer to check relevant records and speak directly with the employee. An allegation of theft, however, may well require the investigating officer to speak to any witnesses, identify and look at relevant documentary or other evidence. The investigation should be concluded as quickly as possible. 4.3 The purpose of any investigation is to establish whether or not there is a case for the employee to answer. 4.4 In serious cases, such as alleged gross misconduct, consideration will be given to a period of suspension (see 5 below). There is no right to be accompanied at a meeting held to advise that the employee is to be suspended. 4.5 Meetings held with an employee to investigate an allegation or issue are not disciplinary hearings and do not attract the right to be accompanied. At an investigatory meeting, the employee may be asked to comment or provide an explanation relating to the allegation under investigation. The investigating officer may have a note taker present at the meeting. 4.6 Where the facts of a case appear to call for a disciplinary hearing to be held, the investigating officer will, in liaison with HR Services, arrange a disciplinary hearing, in accordance with this procedure, as early as possible. If a disciplinary hearing is not required, the employee will be advised whether the matter will be dropped or dealt with informally. 4.7 The investigating officer will normally prepare the case against the employee and present the allegations and evidence to the disciplinary hearing. 5. Suspension 5.1 In certain cases, for example, those involving allegations of gross misconduct, or where relationships have broken down, or where there is a risk to our property, or responsibilities to other parties exist, consideration will be given to a period of suspension with full normal pay, whilst unhindered investigations are conducted or pending the outcome of a disciplinary hearing. 5.2 Suspensions will be on the authority of the Vice-Chancellor or his/her nominee and will be confirmed in writing setting out the grounds on which the decision to suspend has been taken. 5.3 Suspension is a precautionary measure. Suspension is not a disciplinary sanction. 5.4 During the period of suspension the employee will not be entitled to access any of our premises or communicate with any other employee except with the prior consent of the investigating officer and subject to any appropriate conditions imposed. Computer access rights will be withdrawn during any period of suspension. Any essential contact must be made via a person - 4 -

6 nominated by the investigating officer. Access to the employee s trade union representative will be allowed. 5.5 All reasonable steps will be taken to ensure that suspension does not preclude the employee s ability to gather and provide evidence in support of his/her case, as appropriate. 6. Disciplinary hearing 6.1 Following any investigation, if we consider there are grounds for disciplinary action, the employee will be required to attend a disciplinary hearing. The employee will be informed in writing of the allegations against him or her, the basis for those allegations, and what the likely range of outcome will be if we decide after the hearing that the allegations are true. The following will also be provided where appropriate: a summary of relevant information gathered during the investigation; a copy of any relevant documents which may be used or referred to at the disciplinary hearing; and a copy of any relevant witness statements, except where a witness identity is to be kept confidential, in which case we will give the employee as much information as possible whilst maintaining confidentiality. 6.2 The employee will be given written notice of the date, time and place of the disciplinary hearing. The hearing will be held as soon as reasonably practicable, but the employee will be given a reasonable amount of time, usually two to seven days to prepare his or her case based on the information given to the employee. 6.3 Where possible, the disciplinary hearing will be arranged for a date convenient to the employee. The employee must take all reasonable steps to co-operate in the fixing of the date and to attend the disciplinary hearing. 6.4 If the employee or his or her companion cannot attend the disciplinary hearing on the date scheduled the employee should inform us immediately. An alternative date and time will be arranged. The employee must make every effort to attend the disciplinary hearing, and failure to attend without good reason may be treated as misconduct in itself. If the employee fails to attend without good reason, or is persistently unable to do so (for example for health reasons), we may have to take a decision based on the available evidence. 6.5 The disciplinary hearing will normally be conducted by the employee's Dean of Faculty or Director of Support Service (the Chair ). However, there may be circumstances where this is not appropriate and therefore an alternative manager may be sought to conduct the disciplinary hearing. 6.7 In cases of alleged gross misconduct or where a final written warning has already been given and dismissal is a possible outcome, the hearing will be conducted by the Vice Chancellor or his/her nominee as Chair, and one other member of the Corporate Management Team (CMT). 6.8 In all cases, the Director of Human Resources or his/her nominee will attend the disciplinary hearing as professional adviser to the Chair. 6.9 The nature and format of each disciplinary hearing will be dependant upon the allegations being made against the employee and are subject to the - 5 -

7 absolute discretion of the Chair. At the disciplinary hearing, the following order of procedure will normally be followed: (a) The investigating officer will present the complaint(s) and the evidence and may call witnesses; (b) The Chair will go through the allegations against the employee and the evidence with him or her. (c) The Chair, any panel member, the employee or his/her companion may question the investigating officer. With the permission of the Chair the employee or his/her companion can ask questions of each witness but there is no automatic right to cross-examine (each witness withdraws after giving their evidence); (d) The employee or his/her companion will be given an opportunity to state his or her case, using witnesses if desired; and to comment on the allegations, to put forward any explanation, defence, arguments, or mitigation and to comment on what disciplinary sanction, if any, is appropriate; (e) The Chair, any panel member and the investigating officer may question the employee and any of the employee s witnesses (each witness withdraws after giving their evidence). The companion may not answer questions directed to the employee, on their behalf; (f) The investigating officer and the employee or his/her companion each has the opportunity to sum up their case; (g) The Chair will normally adjourn the hearing to allow proper consideration of all matters raised, before a decision is reached and given. (h) After the hearing, the Chair will inform the employee of the outcome of the hearing and any disciplinary sanction to be imposed. At the discretion of the Chair, the hearing may be reconvened for this purpose. The outcome of the hearing and any disciplinary sanction must in any event be confirmed in writing to the employee at the earliest opportunity. The Chair will also give an explanation for the decision and will explain the employee's right of appeal. 7. Right to be accompanied at a disciplinary hearing 7.1 All employees have the right to be accompanied at any disciplinary hearing. 7.2 The companion may be a work colleague, friend, relative or trade union representative. The employee must specify who his or her chosen companion is, in good time before the hearing. 7.3 Acting as a companion is voluntary and an employee s colleagues are under no obligation to act as a companion. Employees will be allowed reasonable time off from duties without loss of pay to act as a companion. 7.4 If the employee s choice of companion is unreasonable he or she may be asked to choose someone else, for example: If in our reasonable opinion the companion may have a conflict of interest or may prejudice the hearing; or - 6 -

8 If the companion works at another location and somebody reasonably suitable is available at the location at which the employee works; or If the companion is unavailable at the time the hearing is scheduled and will not be available for more than five working days The companion is allowed to address the hearing in order to:- put and explain 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 privately with the employee at any time during the hearing. The companion is allowed to participate as fully as reasonably possible in the hearing, including asking witnesses questions. There is not, however, an automatic right to cross-examine witnesses. 7.7 The companion has no right to answer questions on the employee s behalf. The companion cannot address the hearing if the employee does not wish it. 7.8 The right to be accompanied does not include the right to be accompanied by a qualified lawyer, save in special circumstances. For example, if we were to be represented by a solicitor it would be reasonable to permit the employee to also be represented by a legally qualified person. 7.9 If the employee or the employee s companion cannot attend on the date set for the hearing, the hearing will always be postponed for up to five days and may be, at our absolute discretion, postponed for a longer period of time. 8. Disciplinary sanctions 8.1 In cases where a reasonable belief in the employee's misconduct or unsatisfactory performance is established, on a balance of probabilities, at a disciplinary hearing, the following disciplinary sanctions may be invoked: Stage 1: First written warning - unsatisfactory performance Following the disciplinary hearing an employee who is found to be performing unsatisfactorily will be given a WRITTEN WARNING setting out: the performance problems; the improvement that is required the time scale for achieving this improvement a review date; and any support we will provide to assist the employee The employee will be informed that failure to improve may lead to a final written warning and, ultimately, dismissal. The right of appeal will also be confirmed. A copy of the warning will be kept on the employee's personal file and used as the basis for monitoring and reviewing performance over the following 12 months after which it will then normally be removed, subject to satisfactory performance

9 Stage 1: First written warning - misconduct Where, following a disciplinary hearing, an employee is found guilty of misconduct, (s)he will be given a WRITTEN WARNING setting out the nature of the misconduct and change in behaviour required. The employee will be informed that the consequences of failing to change behaviour or further misconduct could lead to a final written warning and, ultimately, dismissal. The right of appeal will also be confirmed. A copy of the warning will be kept on the employee's personal file but it will then normally be removed after 12 months, subject to satisfactory conduct. Stage 2: Final written warning (unsatisfactory performance or misconduct) Where there is a failure to improve or change behaviour within the previously set time-scale, or if the misconduct is sufficiently serious to warrant only one warning, a FINAL WRITTEN WARNING will normally be given to the employee. This will give details of the complaint, will warn that dismissal will result if there is no satisfactory improvement in performance or behaviour. It will also advise of the right of appeal. A copy of the warning will be kept on the employee's personal file but it will normally be removed after 12 months (in exceptional cases the period may be longer) subject to satisfactory conduct and performance. However, there may be occasions when the misconduct is so serious that (although not warranting dismissal) it cannot realistically be disregarded for future disciplinary purposes. In such circumstances a final written warning can never be ignored and any recurrence or any further misconduct is likely to lead to dismissal. Stage 3: Dismissal If conduct or performance is still unsatisfactory and the employee still fails to reach the prescribed standards, or there is gross misconduct, DISMISSAL will normally result. A decision to dismiss can only be taken by a manager who has the authority to do so. The employee will be provided, as soon as possible, with written reasons for dismissal, the date on which employment will terminate and the right of appeal. We will follow the recommendation of the ACAS Code of Practice that an employee shall not be dismissed for a first offence, except in cases of gross misconduct. 9. Disciplinary rules Examples of misconduct 9.1 The following is a non-exhaustive list of examples of the sort of offences which amount to misconduct short of gross misconduct but which, if committed, will normally lead to formal disciplinary action being taken against an employee: failure to comply with sickness reporting arrangements without good reason - 8 -

10 persistent poor timekeeping, including failure to arrive on time for classes poor or unacceptable job performance persistent failure to meet deadlines, including those related to the assessment process unacceptable level of attendance inappropriate standard of dress smoking at work in an unauthorised area time wasting contravention of minor health and safety rules or regulations disruptive behaviour Examples of gross misconduct 9.2 Gross misconduct is misconduct of such a nature that the attendance of the employee at the place of work can no longer be justified. The following is a non-exhaustive list of examples of the sort of offences which amount to gross misconduct: theft, fraud or any other dishonesty unauthorised absence from work deliberate falsification of records (including time sheets, subsistence and expenses claims, and sick leave self certification forms) failure to disclose correct information on an employment application, or the falsification of qualifications which are a stated requirement of employment or which result in financial gain serious insubordination, including a refusal to follow a reasonable management instruction serious breach of financial regulations fighting or other violent, abusive or intimidating conduct sexual, racial or other harassment, discrimination or bullying conduct deliberate damage to our property or premises unauthorised use or disclosure of confidential information or breach of confidence (but subject to the Public Interest Disclosure Act) serious misuse of facilities (e.g. telephones, mobile phones, and internet) deliberately accessing internet sites containing pornographic, offensive or obscene material any action likely to bring our University into serious disrepute offering or accepting a gift which could be construed as a bribe breach of health and safety rules which endanger the safety of others, including deliberate damage neglect of, or misappropriation of safety equipment serious incapability at work brought on by alcohol or non-medically prescribed drugs - 9 -

11 serious neglect of duty conduct / behaviour which has a serious negative impact on student experience (this could be an ongoing situation or a single incident) serious negligence which causes or might cause loss, damage or injury 9.3 Where an employee is accused of an act of gross misconduct, immediate suspension on full basic pay may apply, pending an investigation and a disciplinary hearing. If the offence is established and there are no acceptable mitigating circumstances, dismissal will follow without notice or payment in lieu of notice. 10. Criminal offences outside employment 10.1 These will not be treated as automatic reasons for dismissal regardless of whether the offence has any relevance to the duties of the individual as an employee. The main considerations will be whether the offence is one that makes the individual unsuitable for his or her type of work. Employees will not be dismissed solely because a charge against them is pending or because they are absent through having been remanded in custody or are serving a period of imprisonment. 11. Independent Safeguarding Authority (ISA) 11.1 If as a result of a disciplinary warning or dismissal we believe an employee may pose a risk to children and / or vulnerable adults we will be required to refer information about the employee to the ISA. The referral will be made by the Secretary & Clerk or his / her nominee. Please refer to the Working with Children and Vulnerable Adults Policy for further details. 12. Trade union representatives 12.1 Normally, no disciplinary action should be taken against a trade union representative until the circumstances of the case have been discussed with a full-time official of the union concerned. 13. Appeals 13.1 An employee who has been under suspension for three weeks or more may appeal in writing to the Appeals Committee of the Board of Governors against suspension. The employee should write to the Clerk to the Board of Governors (copied to the Director of HR) Written confirmation of any disciplinary sanction will confirm the employee's right of appeal. An employee may appeal on the following grounds: they think a finding of fault or sanction is unfair; new evidence comes to light; or they think the disciplinary procedure was not followed correctly The employee should set out the grounds of his or her appeal in writing promptly and without unreasonable delay, normally within 10 working days of the date of written notification of the disciplinary sanction. At the appeal any disciplinary sanction imposed will be reviewed but it cannot be increased

12 13.4 An employee who is dissatisfied with a decision to impose a formal written warning (first or final) may appeal. This appeal will normally be to a more senior manager An employee who wishes to object to a disciplinary decision to dismiss has a right to appeal to the Appeals Committee of the Board of Governors The appeal hearing need not take place before the dismissal or other disciplinary sanction takes effect, because all disciplinary sanctions apply with immediate effect The nature and format of each appeal hearing will be dependant upon the grounds of appeal and are subject to our absolute discretion. There is no automatic right for the employee to have a full re-hearing of the evidence given at the disciplinary hearing. In appropriate cases, an appeal may be dealt with by way of review The employee will be invited to attend the appeal hearing (regardless of the format to be adopted), and he or she must take all reasonable steps to attend the appeal hearing After the appeal hearing, we will inform the employee of the decision in writing. 14. Records 14.1 Copies of any disciplinary hearing notes will normally be given to the employee however, in certain circumstances, (for example to protect a witness) we might withhold some information. 15. HR Services 15.1 HR Services will provide advice, guidance and support on disciplinary matters and the operation of the procedure in order to contribute to consistency and fair treatment for all. This will include confirmation of those authorised to deal with such matters. 16. Review and amendment 16.1 This policy and procedure is subject to review in the light of relevant developments in legislation and employment relations practice and in any case no later than three years from implementation. We reserve the right to amend from time to time the policy and procedure at our discretion. Approved by Board of Governors 17 January 2011 References to legislation updated April