SUBJECT: CHANGES TO THE DISCIPLINE PROCEDURE MANAGEMENT LEVELS

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1 REPORT TO: Meeting of the AGENDA ITEM: MERSEYSIDE FIRE & RESCUE AUTHORITY DATE: 7 th MAY 2013 REPORT NO. REPORTING OFFICER: CONTACT OFFICER: CFO/055/13 DEPUTY CHIEF FIRE OFFICER NICK MERNOCK- DIRECTOR OF PEOPLE &ORGANISATIONAL DEVELOPMENT, EXTN; 4320 OFFICERS CONSULTED: SUBJECT: CHANGES TO THE DISCIPLINE PROCEDURE MANAGEMENT LEVELS APPENDIX A APPENDIX B CFO/015/05 PROPOSED AMENDMENTS TO THE DISCIPLINE AND GRIEVANCE PROCEDURES, AND CONSULTATION AND NEGOTIATION PROCEDURES 2005 COLLECTIVE AGREEMENT Purpose of Report 1. To inform Members of the proposed revisions to the Discipline procedure and the alignment of such procedures to the Fire & Rescue Service National Schemes and Conditions and the ACAS Code on Disciplinary and Grievance Procedures, particularly in relation to the levels of management. Recommendation 2. That Members; Approve the revisions to the Discipline Procedure as outlined in this report, namely realigning Merseyside Fire & Rescue Authority s (MFRA) current discipline procedure to that contained within the Fire & Rescue Service National Schemes and Conditions.

2 Introduction & Background 3. The National Council for Local Authority Fire and Rescue Services (the NJC) is the body responsible for the supervision of all questions affecting conditions of service for all Grey Book employees (uniformed employees) other than those in Brigade Management roles. To this end the NJC s principal role is to provide a framework for pay and conditions, including disciplinary procedures, for application throughout the fire and rescue service in the United Kingdom. 4. A local agreement was approved by members on 17 th January 2005 (CFO/15/05) which amended the National Conditions of Service for Grey Book employees beyond the level recommended within the scheme of delegation. This amendment stipulated that all appeals against dismissal will be heard by members. 5. This amendment does not reflect the Grey Book and its introduction has led to a higher level of appeal becoming available to Grey Book staff than that available to Green and Red Book employees within their respective Discipline procedures. 6. Its introduction has also adversely impacted on the managerial capacity of the CFO, DCFO and DCE as they become involved in disciplinary matters which should be dealt with at lower managerial levels within the organisation. This is particularly relevant given the significant reductions in senior management post over recent years. 7. Additionally in the case of dismissal there is an appeal stage which defers to Members for determination. This results in a fundamental misalignment between the local arrangements and the Grey Book and has the potential to lead to a misunderstanding in relation to roles, scrutiny and governance. 8. Reversion to the arrangements contained within the Grey Book should ensure suitable distance is placed between the decision and the Authority so as to ensure transparent scrutiny arrangements can be applied without the fear of members being involved in the management of behaviour in the workplace. Harmonisation Arrangements 9. Other discrepancies exist between the procedures applicable to Grey Book employees, to those pertaining to Green/Red book employees. This is particularly evident in relation to the length of warning which would or could be applied. Written and Final Written warnings are longer for Green and Red Book employees than they are for Grey Book staff, leaving the Authority open to potential discrimination and equal treatment claims. 10. Green Book employees also do not have the alternatives to dismissal at level 3 hearings which are applicable to Grey Book employees, and again this will be addressed by the harmonization of the procedures.

3 11. The revised arrangements which will accord with the Grey Book will ensure that any decisions made in relation to discipline are taken at the most appropriate level of management in accordance with the role and subject to the individual s competence and possession of the level of delegated authority required. The process will be transparent and apply equally to all Authority employees. These arrangements and the corresponding levels of management are set out below. Levels of Management 12. Any manager is authorised to take action under the informal stage of the disciplinary procedure. In this regard a Crew Manager (or equivalent) would be authorised to speak to an employee about their conduct, attendance or performance and may put this in writing although it would not form part of the disciplinary record. In cases of unsatisfactory performance and absence it is appropriate for the manager to inform the employee that a failure to improve could lead to disciplinary action being taken. 13. The first formal stage would be dealt with at the Watch Manager or Station Manager Level (or equivalent). This would involve initiating the disciplinary process and investigation. Following a disciplinary meeting a written warning could only be given to an employee by a Station Manager or above. 14. The second formal stage would involve the issue of a final written warning which may only be issued to an employee by a Group Manager (or equivalent) or above following an investigation and disciplinary meeting. Disciplinary investigations would be conducted at the Station Manager level (or. 15. The third formal stage which may involve dismissal can only be issued by an Area Manager (or equivalent) or above following an investigation and disciplinary meeting. Disciplinary investigations would be conducted at the Group Manager level (or. This arrangement would remove the role of the Members in the management of Discipline. Level of management matrix 16. A matrix detailing the levels of management for investigation, hearings, action and appeals is reproduced directly from the Grey Book below. Investigation Hearing/Action Appeal Informal Crew Manager Not applicable Not applicable Stage 1 Watch Station Manager (or Group Manager Manager/Station Manager (or Stage 2 Station Manager (or Group Manager (or Area Manager Stage 3 Group Manager (or Area Manager (or Principal Officer

4 (or equivalent) 17. Where a manager who would normally deal with the issue cannot be available, or, should there be a conflict of interest, another manager at the same or higher level, should be appointed to deal with the case. 18. Where the procedure has reached the second formal stage or higher, the hearing should be conducted by a manager who is not the investigating officer, but is at the same or higher level. ACAS Guidelines & Codes of Practice 19. The approach set out in this report reflects and exceeds the guidance provided by ACAS in relation to dealing with discipline in the workplace with respect to the ACAS Code of Practice for Discipline and Grievance Procedures and the ACAS guide for Discipline and Grievance at Work and is designed to help and encourage all employees to achieve and maintain appropriate standards of conduct in accordance with organisational values. The aim is to ensure consistent and fair treatment for all employees in the organization. 20. The principles outlined in this report with regard to the appropriate managerial level for dealing with the initiation of the disciplinary procedure, investigations, hearings and appeals will be supplemented by a more comprehensive guidance for managers including, for example, in relation to the conduct of hearings. Representative Body Consultation 21. Meetings in relation to the harmonization of the Discipline procedures have been held with all the appropriate Trade Unions. Both Unison and Unite have stated their agreement to the harmonization of the Discipline regulations to that contained within the Grey Book, as it offers a distinct improvement on the current Discipline procedure that pertains to them. 22. The Fire Brigades Union did not agree to the reversion away from the current local amendment that incorporates members into the procedure, and the application of the National Conditions of Service. 23. To facilitate a resolution on this matter both parties attended conciliation with the National Joint Secretaries on 18 th April 2013, but this unfortunately, despite best endeavors of both parties, ended in the failure to agree. However the National Joint Secretaries did advise that the local agreement could be referred back to the Authority at any time for them to consider whether to remove the local agreement. This was made explicit in the original report CFO/15/05, item 12 within Appendix A which states This scheme of delegation shall apply with effect from 1 st January, 2005 until and unless further amended or revoked by the Authority.

5 Equality & Diversity Implications 24. Harmonisation of the discipline procedures will ensure a consistent approach is applied in the management of disciplinary issues within the Service and will avoid any unequal treatment claims in respect of these procedures. 25. Professional Standards cater for an employee s and/or their representative s disability at a meeting or hearing. Staff Implications 26. Fair and transparent arrangements for dealing with discipline that are applied in a consistent manner are essential in promoting good industrial and staff relations and demonstrating an adherence to the organisational values, ground rules and employees code of conduct. Legal Implications 27. Whilst a failure to follow the ACAS Code of Practice does not in itself make an organisation liable to proceedings, Employment Tribunals will take this into account in relation the level of potential awards. Failure to harmonise procedures could amount to indirect discrimination due to the large majority of non-uniformed staff being women. Financial Implications & Value for Money 28. Employment Tribunals are able to adjust any awards made in relevant cases by up to 25% for unreasonable failure to comply with any provision of the ACAS Code of Practice for Disciplinary and Grievance Procedures. Risk Management, Health & Safety, and Environmental Implications 29. The application of disciplinary measures as required are, a necessary tool in maintaining the health, safety and welfare of individual employees and the wider community. Contribution to **Our Mission To Achieve; Safer Stronger Communities Safe Effective Firefighters 30. Disciplinary procedures that can be demonstrated to be fair, transparent and consistently applied promote good staff and industrial relations which improve performance and contribute to the mission of creating and maintaining Safer Stronger Communities and Safe Effective Firefighters.

6 BACKGROUND PAPERS ACAS Code of Practice Disciplinary and Grievance Procedures ACAS Guide Discipline and Grievance at Work National Joint Council for Local Authority Fire and Rescue Service (6 th Edition) *Glossary of Terms Please list any acronyms used within this Report and appendices, including their meaning. NJC National Joint Council ACAS - Advisory, Conciliation and Arbitration Service