SECTION 6 PART 1 DISCIPLINARY, CONDUCT AND CAPABILITY PROCEDURE

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1 SECTION 6 PART 1 Introduction DISCIPLINARY, CONDUCT AND CAPABILITY PROCEDURE 1 The law requires that Governing Bodies of schools must:- Decide on conduct and capability arrangements which are fair and meet the standards set by the ACAS code of practice, employment case law and statute Ensure that arrangements and standards of conduct are made known to all members of staff. This is now extremely important so that employees must have easy access to disciplinary procedures, grievance procedures, staffing adjustment and dismissal procedures. Ensure that the procedures are followed; that proper investigation is carried out, and any disciplinary action taken is reasonable. 2. Governors need to be aware that there are now statutory procedures concerning:- a) An employee s right to be accompanied by a single companion at formal disciplinary hearings. The companion can be a fellow employee or a representative of an independent trade union. The County Council recommended disciplinary procedures relating to conduct and capability include this right, and also the employee s right to have a second person who can take notes. b) The steps to be followed when applying disciplinary action and dismissal on the basis of conduct or capability. The County Council recommended disciplinary and dismissal procedures include these steps. Failure to follow these steps could lead to an automatic finding of unfair dismissal should the employee put their case to an employment tribunal. 3. Governing Bodies will no doubt recognise that good management of conduct and capability matters starts well before formal processes are invoked. In fact, they aim to prevent conduct and capability problems occurring so that the need for formal action does not arise. 4. In other words, good disciplinary practice lies not in frequent use of formal procedures but in managing and supervising staff in a way which prevents the development of potential disciplinary problems. This involves sound management practices, e.g.:- Governors and Headteachers should have clear agreement on the standards of behaviour and conduct expected of all staff; These disciplinary rules or guidelines should be communicated clearly to all staff and be part of the induction process for new appointments; These disciplinary rules and guidelines should be applied consistently throughout the school; 4/

2 Senior staff with any responsibility for the conduct of other employees should be clear on the nature of that responsibility and on the scope of their authority to act; General monitoring of conduct should be a feature of normal school management and, once a problem has been identified, it should be taken up with the individual concerned at an early opportunity; Staff have a legitimate expectation that everyone will be treated equally; there are few things worse for morale than for an individual being seen to be getting away with it. For example, it is important to deal with repeated minor misconduct immediately. 5. It is important to distinguish between conduct and capability. Conduct is about behaviour which is often, but not always, deliberate but are at least within the employee s control. Those problems concerned with Capability will relate to cases where a member of staff is unable to achieve the competence expected because of lack of knowledge/skills and abilities. This Section, therefore, contains separate procedures for each issue. Capability issues concerned with health are dealt with in Section 1 Part 6, Section 1 Appendix D and Section 8 Part 7 of this Handbook. 6. Since conduct or capability issues could result in the dismissal of a member of staff, advice should be sought from Children s Services Personnel at the earliest opportunity. In any event, advice must be sought from Children s Services Personnel (CSP), who act as the Director of Children s Services representative, before a decision on dismissal is made /2005

3 PART 2 AUTHORITY TO ACT ON MATTERS OF CONDUCT AND CAPABILITY 1. Education regulations deal with the arrangements to apply in the case of the dismissal of a member of staff and, in effect, provides for an initial hearing and then a right of appeal to a person or persons who have not taken part in the original decision. For example, the Governing Body might set up a small appeals panel from among its own members, and the members of that panel would then take no part in disciplinary cases which might result in dismissal. 2. In theory, this allows for the possibility of the involvement of all other Governors in the initial hearing of the case. However, such a course is not recommended and it is strongly suggested that initial hearings of serious cases should be conducted by a Disciplinary Committee or Staff Committee of, say, three or five Governors. (Those Governing Bodies which choose to appoint a Committee specifically to deal with personnel/staffing matters may decide to place this particular role with such a Committee). 3. The School Government Regulations provide that appeals against decisions to dismiss a member of staff may be delegated to an appeals committee. Such a committee cannot include any members of the Disciplinary Committee or Staff Committee, and must have the same, or a larger, number of members of the Governing Body in respect of appeals against disciplinary decisions of the Disciplinary Committee or Staff Committee. Governing Bodies have two alternatives:- (i) to have the full Governing Body (less the members of the Disciplinary Committee) hear and decide upon any appeal; or (ii) to establish an Appeal Committee as outlined above, to decide on any appeal. 4. Option (ii) is recommended and the model disciplinary procedures are worded accordingly. However, it would not be difficult for a school which chose option (i) to amend the procedures accordingly. 5. Governing Bodies will want to consider whether it would be appropriate for Governors employed at the school to be members of the Disciplinary Committee or Staff Committee or attend meetings involving appeals. For reasons of natural justice, it is recommended that this should not normally occur, but this is a matter for Governing Bodies to decide taking into account their own circumstances. 6. However, it must be noted that the Education (School Government) Regulations expressly provide for the exclusion of any employee of the school from participating in a decision of the Governing Body when the creation of a vacant post (e.g. by dismissing another member of staff) is being considered and he/she (or relative, spouse, or partner living with him/her) could be a candidate for that resultant vacancy. 7. Regulations, also say that an external element in appeals is not excluded by the legislation, but this would be a matter for the Governing Body to consider. The legislation and regulations are not specific as to what this means, i.e. appeal to an independent person, having an independent person to advise the Appeals Panel, or appeal to an independent body such as ACAS. In view of the imprecision and the fact 4/

4 that it is the Governing Body or its Committee that has the final legal power to take a decision, the Director of Children s Services does not recommend having such an external element other than in an advisory capability to the Appeals Panel. 8. Conduct and Capability cases will normally develop gradually. Decisions on both the gravity of a problem and recommended solution are likely to emerge from a process of investigation and deliberation. These decisions may then have serious long-term implications and so involvement of Children s Services Personnel is advisable from an early stage. 9. It is thus recommended that the following should be recognised as having a formal role in the management operation of formal disciplinary arrangements:- the Headteacher the Governing Body a Disciplinary Committee or Staff Committee of the Governing Body an Appeals Committee of the Governing Body the Director of Children s Services or his/her representative from Children s Services Personnel. 10. The roles which each of the above will carry in disciplinary matters will depend on the procedural arrangements adopted by the Governing Body. However, if the recommended model procedures are adopted, then authority would be exercised as follows:- (a) Headteacher (see also paragraph 11 below) overall responsibility (to the Governing Body) for maintenance of good discipline within the school, including taking necessary informal action; suspend employees from duty to allow investigation, etc; carry out personally or delegates investigatory interviews; Note: In accordance with the principles of natural justice, it is not advisable for the same person to carry out the investigation and hear the case. Ideally a Deputy Head or Senior Teacher or County Council officer should investigate and the Headteacher hear the case at disciplinary interviews. However, it is recognised that this may not be practical in all cases because of the size and resources of some schools or other practical reasons. Therefore, the procedure allows for both responsibilities to be carried out by different persons or the same person (normally the Headteacher). conduct formal disciplinary interviews; issue formal written warnings including final written warnings; deal with all requests to disregard formal written warnings issued by the Head. (b) Governing Body determine and amend the rules and procedures relating to disciplinary matters in the school; end suspension from duty /2005

5 (c) Disciplinary Committee or Staff Committee suspend employee from duty to allow investigation, etc; conduct hearings of cases when dismissal is a possible outcome; make decisions arising from such hearings including, when appropriate, deciding to recommend the dismissal of an employee; deal with all requests to disregard formal written warnings issued by the Disciplinary Committee or Staff Committee (this may be exercised by the Chairman of the Committee). (d) Appeals Committee hear appeals against decisions of the Disciplinary Committee/Staff Committee; hear appeals against formal written warnings issued by the Headteacher; may confirm or modify such decisions. (e) Director of Children s Services (or representative) may be consulted by Head or Chairman of Governors before formal disciplinary action is taken that will not lead to dismissal; must be invited to be present at meetings of the Disciplinary/Staff and Appeals Committees, when either of these is considering dismissal;* will carry out dismissal on instruction of the Disciplinary or the Appeals Committees, as appropriate. *This is a requirement in the case of Community and Foundation schools. The advice of the Director, usually given via Children s Services Personnel, is vital if the County Council is to be satisfied that it is proper for it to meet any dismissal costs. Failure to invite the representative to the Disciplinary Hearing or total disregard of his/her advice are the most likely cause of the school having to meet all costs arising from dismissal, including those arising from Employment Tribunal hearings. 11. Regulations now give the Governors the option to delegate to the Headteacher to chair disciplinary (or other) hearings which have the power to decide on dismissal. Any appeal against the Headteacher s decision would then be to the Appeals Committee of the Governors. It is recommended that this power be delegated in situations involving dismissals for reasons of the ending of final term contracts (where continuous service of the employee is 1 year or more) or for retirements (where the contract is terminated). See Section 8 Part 8 of this Handbook. 4/

6 SUMMARY OF DISCIPLINARY PROCEDURES Purpose of the Disciplinary Procedures PART 3 1. The purpose of these disciplinary procedures is to ensure that members of staff whose conduct is considered to be unsatisfactory can be actively encouraged to change their behaviour. Notwithstanding this aim, the procedures include the possibility that, should this encouragement fail, dismissal may follow. The procedures also make provision for dismissal in cases of gross misconduct. Summary of the Disciplinary Procedures 2. Any complaints or allegations regarding the conduct of a member of staff should be referred immediately to the Head. 3. The Head must make or arrange preliminary investigations and decide whether formal disciplinary action should be considered. The Head should consider whether or not a formal investigation should be carried out by a Deputy Head or Senior Teacher or County Council Officer. 4. If the complaints or allegations do not warrant formal disciplinary action the Head should deal with the matter informally. 5. If formal disciplinary action is considered a possibility, the Head must decide whether the outcome might be the dismissal of the member of staff. (Dismissal would be likely if the allegations were upheld and he/she already had a final written warning in effect or if the allegations concerned gross misconduct). This would be an appropriate time to seek detailed advice from Children s Services Personnel. 6. If dismissal is a possible outcome then the matter should be dealt with by the Disciplinary Committee or Staff Committee. 7. If lesser disciplinary action is anticipated then the matter should be dealt with by the Headteacher. 8. The Employment Relations Act 1999 created a statutory right for a member of staff subject to formal disciplinary procedures to be represented by a fellow employee or a representative of their independent trade union in formal disciplinary hearings. 9. The Employment Act 2002 set out in Schedule 2 (and 2004 regulations) statutory procedures that have to be followed in all disciplinary action short of dismissals (excluding oral and written warnings). It also applies in all dismissals on the grounds of conduct, capability and for other reasons (e.g. redundancy). Trade Union Officials 10. Although normal disciplinary standards apply to the conduct of a trade union official as an employee, no disciplinary action beyond the informal procedures should be taken until the case has been discussed with the relevant full-time trade union officer /2005

7 Time Limits 11. It is essential that all stages of this procedure should be dealt with promptly. References in this document to days should be interpreted as weekdays, i.e. Monday to Friday when Norfolk County Council is open for business. Thus weekend days are excluded from calculations of time limits, etc, but school holidays are not. Where time limits in this document are referred to, these are in County Council working days i.e. when Norfolk County Council is open for business. The Governors should normally agree to any reasonable extension to these time limits, requested by the employee or his/her companion. If a hearing, whether dismissal or appeal, has been arranged on an agreed date and subsequently the employee asks for a postponement, then normally one rearranged date should be agreed. However the Governors are not obliged to agree more than one postponement. 4/

8 PART 4 NOTES OF GUIDANCE FOR HEADTEACHERS AND GOVERNORS Introduction 1. The recommended Disciplinary Procedures have been prepared with due regard to the requirements of natural justice and the relevant employment legislation. It is strongly recommended that these or very similar procedures are followed when dealing with cases of alleged misconduct in order to ensure that any disciplinary action will be taken fairly and will be seen as fair by an industrial tribunal. 2. The main stages of the Disciplinary Procedure are essentially:- Investigation of possible disciplinary offences; Disciplinary Interview or Hearing; Disciplinary decisions. 3. These notes consider each of these stages and offer some guidance on their application. In preparing these notes, it has been assumed that the Director of Children s Services' representative has been/or will be consulted. Reference to Disciplinary Committee also includes the Staff Committee. Investigation Of Possible Disciplinary Offences Whether or not to act 4. When a situation arises which appears to warrant formal disciplinary action, it is the Head s responsibility to decide whether any action should be taken and what form that action should take. 5. There may be situations where it is unclear whether an allegation or complaint can properly be regarded as a disciplinary matter at all. This is often the case when it concerns the private life of a member of staff. The main consideration must be the extent to which the allegation or complaint affects the member of staff in the performance of his/her job. 6. If a member of staff is suspected of committing a criminal offence whilst at work the Head must decide whether to refer the matter to the Police for investigation. Alternatively, preliminary investigations could be undertaken within the school as a precursor to possible disciplinary action before a decision is taken about involving the Police. There are no hard and fast rules about this but the decision will be influenced by the timing and location of the alleged offence. Child Protection 7. When there is an allegation of child abuse, the relevant procedures for child protection must be followed (this Section 6 Appendices D and E). It is important that such procedures are investigated urgently when serious allegations relating to child abuse are made /2005

9 Suspension Made Due to Allegations 8. If there are clear indications that a member of staff has acted in a manner which may constitute gross misconduct, then it is most important to consult him/her (ideally in person) and then if appropriate to suspend him/her from duty forthwith. Gross misconduct is a term used to describe particularly serious offences; examples are given in this Section 6 Appendix A. This involves the kind of offence which an employer may regard as a fundamental breach by the member of staff of his/her contract of employment. If it is to be regarded as such a fundamental breach, then the contract of employment has to be put into suspension until the matter is resolved. Hence, the need to suspend the member of staff from duty. This would be on full pay. It is vital that the individual's human rights are respected and consultation occurs before suspension (if possible).this will also normally mean providing mechanisms for support for the employee suspended, reviewing the period of suspension every four weeks, and not allowing the period of suspension to become protracted. Criminal Offences 9. A member of staff should not be disciplined solely because he/she has been charged with, or convicted of, a criminal offence committed in the individual s own time. The Head must decide whether the individual s conduct affects his/her ability or suitability for continued employment. If it does, the normal disciplinary procedure should be followed. 10. When a criminal charge has been preferred it is not always necessary to wait until the outcome of the criminal case until a decision under the disciplinary proceedings can be taken. This is particularly so in cases where the alleged criminal act has taken place in connection with employment and so some investigation can be made so long as it is done without interfering in the work of the Police and Courts. Children s Services Personnel will provide guidance in each individual case. The decision should be based on a reasonable belief following a proper investigation into the circumstances of the case. It is not necessary to adopt the criminal court s standard of proof beyond all reasonable doubt but rather the decision should be based on the balance of probability; in other words, whether it was more likely than not that the individual carried out the act in question (i.e. civil courts standard of proof). 11. Where an alleged offence has taken place which has no connection with employment, this can present problems because the Head and Governors have no information on the details of the case, and are simply aware that a prosecution is possible or actually taking place. In such circumstances, it may be sensible to await the outcome of the court case; a senior member of staff or an Children s Services Personnel representative should attend the trial and take notes of the proceedings. Fact Finding 12. It is an important feature of a fair disciplinary procedure that the facts of any alleged disciplinary offence should be fully investigated. The investigation must be both systematic and thorough. If it is not, an otherwise sound allegation might falter at an internal disciplinary hearing, or a claim to an Employment Tribunal might succeed, because the original decision was based on inadequate investigation. 13. The means of establishing the facts and the degree of investigation necessary will vary according to the nature of the alleged offence, but it is preferable if a Deputy Head/Senior Teacher/County Council Officer undertake the investigation but there 4/

10 may be occasions when it may be appropriate for others to do this, for example independent auditors might be asked to investigate alleged financial irregularities or Children s Services Personnel may be invited to investigate a case on behalf of the school. However because of the practicalities of the situation, the Headteacher may have to carry out this investigatory role. Conducting an investigation may consist of interviewing other employees, pupils, or members of the public, or other witnesses. A formal note of evidence obtained in this way should be prepared and agreed as accurate by the witness. Alternatively it may be appropriate to ask the witness to prepare a written statement which should be signed and dated. 14. If a pupil has made the complaint or is a witness it is not recommended that he or she should be asked to provide a written statement unless the pupil is of mature understanding. Instead, the pupil should be interviewed in the presence of a parent or guardian and the interviewer make a written note which should be read over to the pupil to verify its accuracy. This note should include an endorsement saying it was read and verified by the pupil and should be signed and dated by the interviewer, the pupil and parent. The pupil should be given a copy of the note. 15. Unless a criminal offence has been allegedly committed and the Police are to take a statement, it is quite in order for the investigator to interview the member of staff alleged to have committed an offence, as part of the wider investigations. Before an investigatory interview, a member of staff should be given the opportunity to seek advice and to be accompanied by a companion. Although such investigatory interviews can be arranged at short notice, documents or statements under consideration must be sent to the employee in advance of the investigatory meeting. 16. The originals of all documents which may be relevant to the alleged misconduct should be retained by the Head for possible use as evidence. 17. It should be emphasised that the purpose of an investigation is to establish the facts relating to a possible disciplinary offence in order that a reasonable decision may be made. When dismissal is involved, employment legislation requires employers to act reasonably and fairly. The implication is that employers are expected to have reasonable grounds for believing that a person committed an offence. The degree or amount of evidence that is required needs to be judged in that light but should be as wide as possible to obtain a balanced view; again it is emphasised that it is not necessary to seek out the degree of evidence required to prove guilt beyond all reasonable doubt, that courts of law expect, but on the balance of probability test. Planning and Conducting Disciplinary Hearings Introduction 18. Once the investigation has taken place the Head will be in a position to decide whether there is no case to answer, the case should be dealt with informally or it should be dealt with under the formal Disciplinary Procedure. In some situations, it may again be necessary to consider the involvement of the Police. 19. If the case is to be handled formally, the Head must decide whether he/she will conduct the hearing or refer the case to the Disciplinary Committee of the Governing Body. A case should normally only be referred to the Disciplinary Committee/Staff Committee if dismissal of the member of staff is a possible outcome (dismissal would /2005

11 be an option if the allegations were upheld and the member of staff already had a current final written warning or if the allegations concerned gross misconduct). 20. The Disciplinary Procedure explains how a disciplinary interview with the Head or a disciplinary hearing of the Disciplinary Committee of the Governing Body should be convened and conducted. It is important in cases where dismissal is a possible outcome that the standard 3 step statutory dismissal and disciplinary procedures is follows. These steps are included in the recommended County Council procedures but are:- Planning for a Disciplinary Interview or Hearing 21. There are several issues which can usefully be considered in preparation for the hearing. Most aspects will be relevant for a Head conducting a disciplinary interview or hearing, while both Head and Chairman will find this useful when the Head is to present a case to a Disciplinary Committee or to the Appeals Committee when an appeal is being heard:- (i) (ii) Review the requirements of the disciplinary procedure. Consider whether there are any aspects of the alleged offence, the evidence or possible disciplinary action about which they are uncertain. This uncertainty may be resolved by further investigation or by asking Children s Services Personnel for advice on such matters including whether particular information is valid, and whether an offence can properly be regarded as gross misconduct. (iii) Consider the possible attitude of the member of staff (or of his/her union representative) to the allegations. Various possibilities are counter-accusations, flat refusal to discuss the matter, attempts to cloud the issue with irrelevancies, admission and pleas of justification or mitigation. From his/her knowledge of the employee and the circumstances, the Head or Chairman can often usefully anticipate and therefore plan for the reactions of the member of staff. (iv) Prepare a plan for the hearing. This is particularly useful when there are a number of separate allegations and/or the issue has a number of dimensions. It is important that all aspects are properly explored at the hearing, and that attention is not unnecessarily concentrated on one incident or aspect. Planning the manner in which these are examined should avoid this problem. (v) Review the information which will be used to explain the allegation to the employee. Any original documents required should be brought together if this has not already been done and any other members of staff who are to be asked to present information should be briefed on the date/time/location and of what is expected of them. (vi) Ensure that adequate time is made available for the hearing. A hearing that is rushed through because the Chairman, other Governors or Head have other commitments is clearly unsatisfactory, and an otherwise sound decision may be at risk as a consequence. (vii) Consider the layout of the office as this can influence the hearing. Obviously, privacy is a prime requisite; no disciplinary hearing should occur where it can be overheard. Seating arrangements are also significant. If a formal disciplinary hearing is being conducted, then the seating arrangements should reflect this, 4/

12 and not the informal type of layout that might be more appropriate for a friendly counselling discussion. (viii) The disciplinary procedure provides for a clerk in respect of hearings conducted by the Disciplinary Committee and the Appeals Committee. For those hearings conducted by the Head it is also worth considering whether or not to have someone present to take detailed notes of the proceedings and, if so, make the necessary arrangements. Alternatively, it is quite acceptable to make brief notes on key points as the hearing progresses. Either way, it is usually advantageous to have a record made at the time of the main points arising. The confidentiality of the proceedings should be borne in mind when inviting a clerk. (ix) It is important to consider the membership of the Disciplinary and Appeals Committees, whether these Governors have already been appointed (say, on an annual basis) or are appointed on an ad-hoc basis. In selecting the Governors to sit as members of these Committees it is important to comply with the rules of natural justice. These require that the Governors hearing the case must be free from bias and therefore should not have been involved in the detail of events leading up to the convening of the hearing. Similarly, a Governor who has been a member of a Disciplinary Committee would not be eligible to attend an appeal hearing by the Appeals Committee other than, if necessary, to report and/or explain the decision of the Disciplinary Committee. Note that regulations require the exclusion of any Governor who may be a candidate for the vacancy created by a dismissal, or whose relative, spouse, partner living with him/her, could be a candidate. (x) It is also necessary to emphasise the importance of maintaining confidentiality of disciplinary hearings. The members of the Disciplinary Committee must be reminded that disciplinary proceedings are confidential and they may not even be discussed with fellow Governors as this may prejudice the possibility of a fair hearing at a subsequent appeal. This does not preclude the Head from briefly informing the Governors, ideally through the Chairman, of progress over a particular disciplinary problem at an earlier stage, but detailed consideration should not take place. In a few cases, the Governing Body may need to be briefed over a serious disciplinary case particularly where the issue has become public (e.g. in the press) or is known to the parent community, but no discussion and consideration should take place. (ix) If a complaint about a member of staff is brought to the initial attention of a member or members of the Governing Body, steps should be taken by the Chairman or Headteacher to ensure that discussion and speculation is kept to a minimum and proper investigation and procedures are implemented without delay. Conducting the Interview or Hearing General Style 22. The style of the hearing should reflect its purpose. The Head or Chairman should make it clear that he/she has no fixed preconceived ideas about the outcome. 23. Where possible, it is helpful to seek agreement on the facts of a situation. Similarly, in circumstances where it is possible to take a constructive approach towards correcting /2005

13 a problem, then this is most likely to be successful if the member of staff can be helped to recognise the problem and genuinely commits him/herself to improvement. Procedure 24. Introduction - the Head or Chairman conducting the hearing should ensure that each person knows the identity and role of the others present. 25. Outline of the allegations - the Head or Chairman conducting the hearings should remind those present that the meeting constitutes a formal hearing under the relevant procedure, and the alleged offences should be detailed. At this stage, it is not sufficient to state these in general terms as the purpose is to ensure that the member of staff is quite clear about the allegations that he/she is facing. For example, in alleging poor time keeping or unauthorised absence, dates and times should be quoted. The nature of the alleged offence(s) to be considered will have already been communicated to the member of staff in the letter summoning him/her to the hearing. If the possibility of additional and significantly different offences arises, and the member of staff has not been given advance notice of these, then considerable caution should be exercised. It would usually be advisable not to deal with these additional matters at this stage and, indeed, consideration may have to be given as to whether the hearing should be adjourned to another day: if the matter is covered by the statutory dismissal and disciplinary procedure then the hearing must be rearranged to a different date. 26. The management case - the evidence which supports the allegations should be explained. This can be done either by the officer who investigated the matter simply explaining the outcome of the investigation, or having other members of staff attend to give information and explanations. The planning of this stage is vital, particularly if there are several different allegations, and/or the evidence is complicated. Depending on the circumstances, it may be most useful to deal with one offence at a time, or deal with all relevant events in chronological order, or deal with all the evidence from each source in turn. It is important that this is tackled systematically and the basis of each and every allegation is properly explained. The member of staff (or his/her representative) must be given the opportunity to question the information contained in the allegations. Where the facts are relatively simple or straightforward a single opportunity at the end of the explanation of the allegations would be adequate. However, if the presentation is complicated, and especially if it deals with a number of different allegations, it would be more sensible for the Head or Chairman to ask at the end of each stage whether the member of staff or representative have any questions. 27. The employee s case - as well as asking questions the member of staff must be given the opportunity to present his/her version of events. How this is presented is up to the member of staff, within reason. For example, if he/she wishes to bring along other witnesses who may be members of staff, to present alternative views of events then this should normally be allowed. If the Head or Chairman conducting the hearing and the Adviser from Children s Services Personnel should question the case presented. This questioning should be thorough and probing. 28. Consideration of the facts - the hearing should be adjourned for consideration of the evidence, discussion and decision taking. 29. Decision - once the Head or Disciplinary Committee has decided whether the member of staff has committed a disciplinary offence and, if so, what action to take, the member of staff and representative should be informed. The decision should be confirmed in writing in accordance with the procedures. 4/

14 Problems 30. It is obviously impossible to identify all the problems that may occur, but some of those that do so regularly are outlined here. (i) (ii) (iii) An employee who cannot attend a meeting should inform Governors or Head in advance whenever possible. If the employee fails to attend through circumstances outside their control and unforeseeable at the time the meeting was arranged (e.g. illness) the employer should arrange another meeting. A decision may be taken in the employee s absence if they fail to attend the rearranged meeting without good reason. If an employee s companion cannot attend on a proposed date, the employee can suggest another date so long as it is reasonable and is not more than five working days after the date originally proposed by Governors or Head. This five-day time limit may be extended by mutual agreement. Unforeseen factors - it sometimes happens that members of staff introduce elements to the case that are totally unforeseen and are quite fundamental. These can relate to the facts themselves (e.g. an admission by someone else) or to the procedures being used (e.g. that the person conducting the hearing should not do so). In such circumstances it is quite in order, indeed sensible, to adjourn the hearing briefly to consider whatever has been said and, if necessary, seek advice if no Children s Services Personnel representative is present. Digressions - proper planning should mean that the case against the member of staff contains no irrelevancies or digressions. Equally, if the member of staff or representative starts introducing these in presenting a case, it would be reasonable to point them out, and request that the line of argument be discontinued. Taking Disciplinary Decisions Introduction 31. The decision making process can be divided into three stages:- deciding whether the member of staff has committed a disciplinary offence; deciding what action to take about this; putting that action into effect. The first two stages are discussed in detail in this section. The third stage, putting the disciplinary action into effect, is set out in detail in the Disciplinary Procedure and needs no further explanation /2005

15 Deciding whether the employee has committed a disciplinary offence 32. The earlier section on investigating the facts referred to the need to determine whether whatever had occurred actually constituted a disciplinary offence. Reference must be made to the disciplinary guidelines on conduct shown at Appendix A. There are occasions when further consideration is necessary at this stage, in the light of the points arising in a formal disciplinary hearing. 33. The key point at this stage is that the Head or Chairman must be quite clear that the decision is soundly based on the facts of the case. In other words, it is important to be conscious of the degree to which personal knowledge of the individual may affect the decision. Outline of disciplinary action available 34. Once the Head or Disciplinary Committee is satisfied that a disciplinary offence has been committed by the member of staff, a further and separate decision is required about the action to be taken as a consequence. 35. The earlier section on the purposes of the disciplinary procedure stated that the primary objective is the identification of the problem and getting members of staff to correct their behaviour. It is sound practice to spell out clearly to members of staff the standard of behaviour or conduct expected, perhaps compare it with that which has occurred, and state what will happen if the required standard is not achieved and maintained. It may be appropriate for the Head and member of staff to discuss and agree on a programme of action to help him/her achieve that standard. The action proposed should be acceptable to both the member of staff and the Head; indeed, there would be no point unless that were the case. The disciplinary action available is set out in the Disciplinary Procedure this Section 6, Appendix B paragraph 27 and 32. WARNINGS The use of various warnings Oral Warning 36. An oral warning would normally result from the need to rectify a low level problem. The member of staff would be told that if no improvement occurred or further problems arose it may lead to further action under the formal disciplinary procedures. First Written Warning 37. While being a low level action, a first written warning is nevertheless a firm indication to the member of staff that his/her behaviour has been regarded as unsatisfactory and that further more serious action will be taken if it continues or is repeated. Further Written Warning 38. A further written warning would be relevant where an earlier formal warning has already been issued for a disciplinary offence and since then either insufficient improvement has taken place or the offence has occurred again or a subsequent but 4/

16 different offence has occurred and the situation is not sufficiently serious to justify a final warning. Final Written Warning 39. A final warning would be appropriate when at least one previous warning has been given. The issue of a final written warning should include a statement that the commission of further misconduct is likely to result in dismissal. However, when issuing final written warnings, it is important to avoid stating or implying that further misconduct will automatically result in dismissal because the action required at that later stage must be judged on the situation then applying. 40. It may sometimes be appropriate to issue what is, in effect, a further final written warning. This would occur when a member of staff, already subject to a final warning, is found to have committed a further disciplinary offence, but it is decided not to dismiss. For instance, there might be a strong plea of mitigation which, if accepted, would make it appropriate to issue a further final warning as an alternative to dismissal. First and Final Written Warning 41. This is, in effect, a move straight to a final written warning where there are no previous written warnings. It is most often used in situations when the seriousness of the offence is such that it requires more than a first written warning. It is intended to give an unequivocal signal to the member of staff that the offence committed is regarded very seriously and a further disciplinary offence will probably lead to dismissal. The Relevance and Disregarding of Previous Warnings 42. When considering disciplinary action it is necessary to decide what account, if any, to take of the member of staff s previous disciplinary record. Various factors must be weighed: the nature of previous disciplinary offences, the nature of the action taken and the timing involved, particularly the period that has elapsed since the last warning. 43. If an individual s disciplinary record has a pattern of a mixture of different disciplinary offences, it is in order to take account of warnings for different previous offences if taken as a whole they reflect a level of behaviour or conduct that is unacceptable. 44. The Head or Chairman will have to decide whether a previous warning is still relevant to current disciplinary action. While no firm rules are appropriate, clearly a warning of only a few months standing would normally be taken into account, while one that occurred say several years previously should be regarded with considerable caution. 45. Thus a member of staff given a first written warning for bad time keeping who committed a further similar offence four months later might then properly be given a final warning, whereas if that first written warning had been given eighteen months previously then perhaps only another first warning (or a further warning) might be justified. 46. The recommended Disciplinary Procedure includes provision for members of staff to apply to have warnings disregarded after a specified period. Clearly a disregarded warning cannot be taken into account in considering future disciplinary action. In order to ask for a warning to be disregarded, the employee must apply to the Headteacher first for consideration of disregarding which is not automatic. The Head /2005

17 needs to consider the matter in the light of the employee s record since the warning was given. Consistency 47. Another issue which employers are expected to take into account is the need to be consistent in disciplinary decisions. This does not necessarily mean that the same disciplinary action should be given to various members of staff who have committed similar offences, whether together or separately over a period of time. Each case must be judged on its own merits, and if there are sound reasons (perhaps because of a particularly bad previous record) for applying different action, then this is acceptable practice. However, it is essential to be explicit about the reasons for the difference in decisions. Sequence of Warnings 48. It is sometimes believed that employers have to go through a first/further/final sequence of warnings in respect of a member of staff who fails to respond. This is not so. It should be clear from the above that the further warning has a particular use, but need not be used on every occasion when continuing disciplinary action is necessary. 49. Other than for gross misconduct, no member of staff should be dismissed for a reason related to conduct unless they have a valid final written warning on their disciplinary record. 50. The commission of an act of gross misconduct renders the member of staff liable to summary dismissal irrespective of the type of warning previously issued (if any). The word summary means that after hearing all the evidence the Governing Body Committee have decided that dismissal without notice is an appropriate sanction and where there is an appeal the, Appeals Committee has upheld this decision. Dismissal Generally 51. The dismissal of a member of staff for a reason relating to conduct may occur for two reasons:- when there has been a pattern of misconduct during which the member of staff has had the situation explained, and the opportunity to meet the standard required. He/she may have had more than one formal warning, and will have had a valid final warning; when a member of staff has committed an act of gross misconduct. Dismissal is a last resort when all else has failed, or when it is the only appropriate response to an act of gross misconduct. 52. Current employment legislation provides that employees have a right not to be unfairly dismissed. The Employment Rights Act 1996 identifies the various reasons for which a dismissal may be fair and one of those is a reason which is related to the conduct of the employee. Generally, employees who have been dismissed have the right to complain to an employment tribunal that this was an unfair dismissal. It is for the 4/

18 Governing Body to show the reason for dismissal and that it was one of the reasons specified in the Act. Summary Dismissal for Gross Misconduct 53. Gross misconduct is conduct by an employee that can be regarded as fundamentally repudiating his/her contract of employment. 54. The employer has to decide whether to regard the misconduct as breaching an important term of employment and thus justifying summary dismissal. The decision has to be taken quickly; if an employee is allowed to remain at work for some time after the gross misconduct occurred (or became apparent) then the view would be taken by an employment tribunal that the employer had allowed the contract to continue, and therefore that the action could not have been gross misconduct. It is for this reason that it is so important that a member of staff suspected of conduct amounting to gross misconduct should normally be consulted and then if appropriate suspended from duty while the matter is investigated, and a formal disciplinary hearing convened. 55. The decision whether a member of staff s behaviour represents gross misconduct or ordinary misconduct is often difficult and the distinction is not always clear cut. It is helpful to consider whether:- it would be appropriate to deal with the matter by issuing any type of warning; or it is apparent, after investigation, that the conduct has been such that the Governing Body can no longer tolerate the presence of the member of staff at the workplace. 56. Summary dismissal is almost invariably the appropriate response to gross misconduct. Even in such a situation, Governing Bodies should take account of any exceptional mitigating circumstances, in which case the option of a final warning should be considered. 57. Note that the term summary dismissal has been used throughout rather than the term instant dismissal. Summary dismissal, like instant dismissal, means that the employment comes to an end immediately the member of staff is formally told of this (or at least at some time on the same day). However, the term instant dismissal can imply precipitate action to dismiss on the spot, immediately the gross misconduct has occurred. Such action should not normally take place and where contemplated, urgent advice from Children s Services Personnel should be sought; there must be a pause while investigations take place and a disciplinary hearing held by the Disciplinary Committee of the Governing Body. In all situations of alleged gross misconduct, suspension should be immediate albeit the employee should, normally be consulted before the suspension takes place. Dismissal for other misconduct 58. If a member of staff has a background of disciplinary offences, and disciplinary action, then there may come a point at which continued misconduct can no longer be tolerated. It is expected that the standard required by the Governors and the degree to which he/she has fallen short of that will have been explained, and the individual given the opportunity to improve /2005

19 59. When considering whether dismissal is the appropriate form of disciplinary action in a particular case, the Governors will need to have regard to any previous disciplinary record. The earlier comments about the relevance of previous warnings also apply here. General obligations on employers in dismissing employees 60. The basic guidelines by which employment tribunals test the reasonableness of an employer s approach to suspected misconduct by an employee are that:- the employer must have a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time; the employer must have reasonable grounds for that belief; the employer, when forming that belief, must have carried out as much investigation as would be considered reasonable in all the circumstances; the employer must follow a fair procedure - this must comply at the least with the minimum requirements of the ACAS Code of Practice for the dismissal to be fair; the decision made is based on the balance of probabilities that the misconduct took place as alleged. Dismissal and Notice 61. If dismissal is to occur, the Disciplinary Committee should consider how to treat the notice period. As explained above, if the member of staff is being summarily dismissed for gross misconduct, neither notice nor pay in lieu of notice applies. 62. It may be appropriate to give notice but tell the member of staff that he/she will not be expected to attend work during that period, i.e. he/she would remain employed during the notice period and receive their normal pay. In some situations the employee may be required to work during the period of notice. 63. A member of staff may be given pay in lieu of notice. In this situation, the employment ends on that same day and notice of dismissal is not given. Instead, the employee is given a payment, which represents compensation for the breach of the contract (the breach being that notice is not being given). Such a payment should not exceed the pay that would have been due to the member of staff had he/she worked the notice period. Appeals 64. Any member of staff having disciplinary action taken against him/her under the terms of the disciplinary procedure has an internal right of appeal. This is outlined in paragraphs of the Disciplinary Procedure at Appendix B to this Section A member of staff who has been dismissed may claim at an Employment Tribunal that he/she was unfairly dismissed. The employment protection legislation and the right to appeal to an Employment Tribunal do not apply to various types of employees including those who:- 4/

20 have not completed a minimum of one year's continuous employment with the employer; have reached the retiring age for their employment (which is normally 65 years). 66. An individual wishing to exercise a right to claim unfair dismissal before an Employment Tribunal must register this in writing within three months of the effective date of termination of employment. Further Action 67. The Education (Teachers) Regulations require the Governing Bodies of devolved schools to make a report to the Department for Education and Skills (DfES) when a member of the teaching or non-teaching staff is dismissed on grounds of misconduct, or resigns when disciplinary procedures are pending which could have resulted in dismissal for misconduct. 68. On receipt of such a report, which should be made promptly (preferably within one month of the dismissal or resignation), the DfES will decide whether or not the offence is such as to bring into question the person s suitability to work in a school. 69. There is not an exhaustive list of the kind of offences which may lead to a person s employment being barred or restricted, but the types of behaviour most likely to lead to this include:- sexual offences and violence involving children or young people; other kinds of violence; drug related offences, particularly drug trafficking; the misappropriation of school monies; false claims of a gravely deceptive nature as to qualifications; repeated misconduct or multiple convictions unless of a minor kind /2005