Disciplinary Policy & Guidance

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1 Disciplinary Policy & Guidance Adopted from Wokingham Borough Council s Model Policy. The document has been annotated as follows where responsibility is held at both levels: Wokingham Borough Council (Winnersh Primary School) Council (School) Policy Last Reviewed: November 15 Approval Minuted: Resources Minutes 12/11/15 Date of Next Review: November 16 Reviewing Governor Committee: Resources HISTORY OF AMENDMENTS FROM NOVEMBER 2015 WBC POLICY - ADOPTED Disciplinary Policy Adopted November Page 1 of 14

2 DISCIPLINARY POLICY & GUIDANCE List of Contents Page No Disciplinary Flowchart 3 1. Policy Statement 4 2. Purpose 4 3. Scope 4 4. Equal Opportunities 4 5. The Disciplinary Procedure 5 - When to Use a disciplinary procedure 5 - Sanctions and factors that need to be considered 5 - The right to be accompanied at a Formal Disciplinary - Hearing 5 - The right to appeal 5 - Keeping Written Records 6 - Examples of misconduct 6 6. Informal Stage 7 - Informal Warning 7 - Period of Review 7 7. Disciplinary Investigation 7 - Investigation 7 - General Managers preliminary investigation 8 - Suspension 8 - Disciplinary Proceedings/Criminal Prosecutions 9 9. Formal Stage Disciplinary Procedure 10 - Formal Written Warning (1 st stage) 10 - Final Written Warning (2 nd Stage) 10 - Dismissal (3 rd Stage) 11 - Some Other Substantial Reason 11 - Other Penalties 12 - The Appeal 12 Appendix 1 Dismissal for Some other substantial Warning 13 Disciplinary Policy Adopted November Page 2 of 14

3 Disciplinary Process Flow Chart 1 st Formal Disciplinary Hearing Outcome may be Formal Written Warning Informal Stage - meeting with employee Dismissal for misconduct will normally be with pay in lieu of notice. Summary dismissal for gross misconduct will normally effected immediately and without pay in lieu of notice. Yes There is an allegation to answer Formal Stage - Investigati on Very serious breach of conduct or failure to change behaviour 2 nd or (1 st ) disciplinary hearing. Employees have the right to be accompanied Allegation of gross misconduct or if conduct remains unsatisfactory employee required to attend 3rd disciplinary hearing. Employees have the right to be accompanied See also Appendix 1. No No allegation to answer the matter is dropped Outcome may be Final Written Warning Is there a risk of: Interference from the employee? A continued risk to customers? All employees have the right to appeal at every stage of the disciplinary process against the reasonableness of the decision taken at a formal hearing Yes Suspend from Suspend duties with from pay or duties/tempor temporary redeployment re- - ary deployment inform employee. Where conduct does not warrant dismissal other sanctions should be considered. Disciplinary Policy Adopted November Page 3 of 14

4 1. Policy Statement 1.1. The aim of this Disciplinary Policy is to ensure that there is a fair and consistent approach to the enforcement of standards of conduct affecting employees of Wokingham Borough Council. The Policy should not be viewed primarily as a means of imposing sanctions but of encouraging improvement in individual behaviour. 2. Purpose 2.1. The purpose of this policy is to ensure that employees observe all of the Council s policies and expected practice. These include the Policy for Conduct and Personal Behaviour; those concerning Health and Safety at Work, Financial Regulations and any that are required in a professional capacity A distinction has been drawn between conduct meaning breaking disciplinary rules and capability meaning ability to perform to the required standards. Where it has been identified that an employee is experiencing difficulties in performing their duties adequately then the guidelines within the Capability Policy should be used. 3. Scope 3.1. This policy applies to all employees of Wokingham Borough Council other than the Chief Executive and those in their probationary period to whom separate arrangements apply (see the Probation Policy and Guidance) and schools Community, voluntary controlled, community special and maintained nursery schools are strongly recommended to adopt this model policy. Foundation and voluntary aided schools may also wish to adopt it. Collaborating governing bodies working together under the Collaboration Regulations 2003 may apply this policy where appropriate Certain additional and/or amended procedures under the Local Authorities (Standing Orders) Regulations 2001 and the Council s Delegated Powers Relating to Staffing Matters apply to the Head of Paid Service, Chief Officers, Deputy Chief Officers and other defined officers. Also included are the Section 151 Officer and Monitoring Officer (all as defined in those Regulations) and, where applicable, these additional and/or amended procedures should apply to any disciplinary action in respect of those officers. 4. Equal opportunities 4.1. The Disciplinary Policy will be applied fairly and consistently to all staff employed by Wokingham Borough Council regardless of gender, race, colour, marital status, national or ethnic origin, nationality, disability, sexual orientation, age, religion, status or number of hours worked or on any other grounds. For example, it is not unlawful to take disciplinary action against any employee including those from an ethnic background or a pregnant employee as long as it is unconnected with race or the pregnancy. It would be unlawful to dismiss someone because of race or for some reason related to an employee s pregnancy. In addition, if an employee is dismissed during pregnancy or maternity leave she has an automatic right to a written statement giving reasons for the dismissal. 5. The Disciplinary Procedure Disciplinary Policy Adopted November Page 4 of 14

5 5.1. When to use the disciplinary procedure The Disciplinary Policy and Guidance deals with breaches of conduct and unsatisfactory behaviour. The Capability Policy deals with issues of capability, relating to ill health and unsatisfactory work performance. It is important to ensure that issues of capability are not dealt with under this policy. The following examples are capability issues, and therefore should be dealt with under the provisions of the Policy and Guidance for Capability Ill Health & Unsatisfactory Work Performance. Short term, irregular or persistent periods of absence relating to ill health Long term absence relating to ill health where there may be little or no chance of an early return to work Poor work performance due to ill health Failure to achieve the standard of work performance notwithstanding advice, training, guidance and supervisory meetings Sanctions and Factors that need to be considered When deciding whether a disciplinary penalty is appropriate and what form it should take, line managers must bear in mind the need to act reasonably and consistently at all times. Factors that should be considered are: The extent to which standards have been breached Precedent i.e. has this particular breach happened before and what was the penalty; will any precedent be set for the future? The employee s employment record within the Council The employee s job role and training The employee s length of service Special circumstances that may impact on the severity of the sanction For allegations involving Chief Officers see paragraph For allegations involving the Chief Executive see the Chief Executives Conditions of Service Handbook No action may be taken against an appointed or elected trade union representative or officer without prior consultation with the relevant union s Regional Office 5.3. The right to be accompanied at a Formal Disciplinary Hearing Employees have a statutory right to be accompanied at a formal disciplinary hearing by a work colleague, staff representative or trade union representative but not at the informal stage So far as is reasonably possible within the needs of the service, Union/staff representatives or colleagues should be released to attend such hearings (in line with the Consultation and Negotiation Policy and Guidance The right of appeal An employee can appeal against a disciplinary decision made following a formal hearing; (this does not include an informal warning which is not part of the formal disciplinary procedure). An employee must also be informed of his or her right of appeal, how to make an appeal and to whom. Disciplinary Policy Adopted November Page 5 of 14

6 Where an employee raises a grievance during the disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. For example: bias is alleged in the conduct of the disciplinary meeting there is possible discrimination. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently Keeping written records Managers are advised to keep a written record of each stage of the disciplinary process including informal discussions. Records should include: local and corporate induction supervisory meetings the complaint against the employee the employee s response decision to suspend outcome of investigation actions taken and the reason for those actions details of appeals details of any grievances raised during the disciplinary procedure notes of any formal hearings Examples of misconduct The following are examples of misconduct and gross misconduct. The list is not intended to be exhaustive not all examples of misconduct can be included in this policy: Misconduct: Unauthorised absence Negligence Inadequate standards of work caused by carelessness Careless damage to or wastage of Council property and/or equipment Failure to carry out reasonable instructions Insubordination Improper behaviour or conduct towards a member of the public Disregard of safety instructions Aggressive behaviour towards colleagues/members of the public/clients or user Harm to client/user/employee or member of the public Timekeeping offences Breach of the Code of Conduct for Employees Improper disclosure of confidential information Knowingly aiding an offence against discipline Smoking in prohibited areas Harassment and/or bullying Breach of the Council s guidelines for the /internet Breach of the Council s approach to equality Gross Misconduct Theft of Council, staff or public property Fraud and deliberate falsification of records Deliberate damage to or neglect of Council property and/or equipment Disciplinary Policy Adopted November Page 6 of 14

7 Serious insubordination Serious harassment and/or bullying Deliberate disregard of the Equal Opportunities Policy Deliberate disregard of other Council policies/legislation which may bring the authority into disrepute Physical violence Serious harm to client/user/employee or member of the public Bringing the Council into serious disrepute Serious incapability whilst on duty brought on by alcohol or non-prescribed drugs Serious breach of the Code of Conduct for employees. Serious negligence which causes or might cause unacceptable loss, damage or injury Serious infringement of health and safety rules Serious breach of confidence. Serious breach of the Council s approach to equality. Serious of the Council s guidelines for the /internet The above are only examples and advice should be sought from the Service Human Resources Consultant regarding cases that do not fall directly into a category most cases are different, or will have different circumstances. See also the Policy and Guidance for Conduct and Personal Behaviour on the Grapevine. 6. Informal Stage 6.1. Informal warning In most cases where a minor breach of conduct has occurred, managers should take an informal approach before any formal action is considered e.g. informal advice, coaching, training or counselling (the manager may wish to recommend the Wokingham Borough Counselling Service). School managers may wish to give access to a Counselling service Period of review - the employee should be clearly informed of the standards expected and if necessary over what period it will be reviewed. The period for review can only be decided on a case by case basis but does have to be overly protracted. Where after an informal discussion the individual s conduct continues to fall below the required standards the manager should proceed to the formal stage. The line manager should keep a written note of any discussions/reviews so that if the employee fails to improve or maintain this improvement, he or she can refer to this conversation when beginning any formal procedure The line manager should give a copy of the notes/improvement plan to the employee and ask the employee to sign to show they have received a copy and understand (see the Toolkit for the Disciplinary Procedure) If it becomes clear during the informal/investigative interview that formal disciplinary action needs to be taken then the interview must be terminated and a formal hearing arranged at which the individual would have the right to be accompanied. The line manager must not initiate the formal process during the informal interview. (See the Toolkit for the Disciplinary Procedure) For allegations relating to children and young people please refer to the Children s Services Safeguarding Policy and the Referral and Assessment Team on Where there are concerns about abuse of vulnerable adults please refer to Advice can also be sought from the Adult Safeguarding Service Manager. Disciplinary Policy Adopted November Page 7 of 14

8 7. Disciplinary Investigation 7.1. Investigation It is not always necessary to hold an investigatory hearing however, if a hearing is held, give the employee advance warning and enough time to prepare. The line manager should carry out a preliminary enquiry with discretion and sensitivity to confirm that the allegation is justified. Where the facts of the case appear to call for formal action then a full investigation must take place and the employee must be informed. The manager will nominate a manager who has attended the training on how to conduct an investigation to carry out the investigation. The investigation should normally include: Establishing the facts promptly and carefully making notes of any statements or obtaining statements where appropriate Allowing the employee involved time to give an explanation Deciding whether it is necessary to recommend suspension for a brief period whilst the investigation is carried out the manager must clearly record the decision to suspend. For the suspension checklist see the Disciplinary Toolkit The investigating manager should ensure other people being interviewed are aware of why they are being interviewed and that any information obtained may be used in the course of any succeeding disciplinary hearing. Notes should be taken of any interviews and any witnesses should sign and date witness statements Where there are financial/fraud implications the line manager including Headteachers, must immediately inform his/her Head of Service/General Manager and the S151 Officer of any alleged irregularity. The investigation must be carried out under the guidance of the S151 Officer Where complaints are from members of the public or where they have witnessed incidents, the investigating manager should take all reasonable steps to establish the facts and take statements wherever possible. However, clients/users/members of the public would not normally be expected to attend a formal hearing. Particular care must be taken to maintain confidentiality, see the Policy and Guidance for Conduct and Personal Behaviour on the Grapevine Where the alleged misconduct would, if proved, be a criminal offence, or the Police are already involved advice should be sought from the Head of Human Resources, the Monitoring Officer and if appropriate the S151 Officer before starting an investigation General Managers Preliminary Investigation In cases of alleged misconduct that involve General Managers and other officers on NJC Chief Officers Terms and Conditions of Service the Chief Executive will carry out a preliminary investigation (following the above process) see the Delegated Powers Relating to Staffing Matters. See also the Local Authorities (Standing Orders) (England) Regulations 2001 for Head of Paid Service, Monitoring Officer and S151 Officer Suspension Suspension from work does not imply guilt and is not intended as a sanction but as a precaution. Before suspending an employee approval must be given by the Head of Service/General Manager or Headteacher (see the Toolkit for the Disciplinary Procedure) Employees should normally only be suspended in serious cases where there is: No possibility of temporary redeployment to another area Disciplinary Policy Adopted November Page 8 of 14

9 WINNERSH PRIMARY SCHOOL A risk of the presence of the individual may hinder or influence the investigation A danger the alleged misconduct might happen again. Continued risk to customers or clients In cases of alleged gross misconduct or an issue relating to some other substantial reason an employee will normally be suspended with full pay pending the outcome of the investigation and where appropriate, the disciplinary hearing. The period of suspension should be as brief as possible Where an employee is to be suspended if possible he or she should be invited to a meeting and informed: The reason for the suspension and given an opportunity to respond That he or she must not attend work or communicate with colleagues on work related matters except Trade Union or other appointed staff representatives That he or she may be interviewed as part of the investigation which may result in disciplinary action being taken Reminded of their right to representation during the investigation The length of the initial period of suspension. This must be confirmed in writing -the letter of suspension (see the Toolkit for the Disciplinary Procedure) must be signed by the Head of Service/General Manager or his or her representative and sent to the employee by hand or recorded delivery If suspension lasts longer than 4 weeks it should be reviewed thereafter at regular intervals. The employee should be informed of the decision to continue suspension in writing after each review. The employee should be offered the name of a nominated manager with no involvement in the case that they may contact if they require further information The employee must make him or herself available for interviews during the procedure and must not take alternative employment while the contract of employment still applies. Where secondary employment has already been approved by the Head of Service, this may continue, except where potential conflict of interest is the cause of the suspension The line manager will need to manage the individual s place of work carefully and sensitively when a member of the team is suspended Where the manager finds after a full investigation that there is no case to answer the matter should be dropped or dealt with informally. The suspension must be lifted and the employee must return to work as soon as possible. Line managers should arrange the employee s return to ensure there is minimum disruption to the team and the individual. (For further guidance see the Toolkit for the Disciplinary Procedure) If an employee starts a period of sick leave after disciplinary allegations, during a disciplinary investigation or a period of suspension this will not prevent the operation of the disciplinary procedure. It is in the interests of the Council and the employee that any disciplinary allegations are resolved within a reasonable timescale. At least two attempts will be made to convene a hearing that the employee can attend. If the employee is still unable to attend, the hearing can proceed with a representative of his/her choice in attendance. If the employee does not wish any other person to attend as his/her representative the hearing can proceed without the presence of the employee or representative. Employees must provide evidence of the reason for absence Disciplinary Proceedings/Criminal Prosecutions Disciplinary Policy Adopted November Page 9 of 14

10 The issues involved in a criminal prosecution and internal disciplinary proceedings in respect of an employee s criminal behaviour, will not necessarily be the same. A criminal conviction normally means the employee s guilt is proven, which may then be sufficient grounds for dismissal, depending on the nature of the crime. Alternatively an acquittal in court does not necessarily mean that a decision to dismiss the employee will be unfair. Disciplinary proceedings and decisions do not have to be delayed pending the court s decision, although there may be exceptional cases where the result of the court (as long as it is imminent) may be helpful to the Council in making a decision Because of possible Police detainment or other restrictions on the employee, it may be necessary for disciplinary hearings to take place and decisions to be made without his/her presence. Where this is the case, the employee has the right to have a trade union/staff representative or work colleague, attend to represent them In deciding whether to invoke the disciplinary procedure against an employee for suspected or known criminal conduct outside the scope of their employment the following questions should be considered: Does the alleged offence indicate a risk to security, customers, clients, or other employees or those in the employee s care? Could the employee be reasonably redeployed to a position where his or her particular offence will not affect the service e.g. an employee whose driving licence has been withdrawn to a job that requires no driving? Is the offence incompatible with the employee s job role? Does the length of any custodial sentence prevent the employment contract from continuing? Does the crime damage the relationship of trust that is fundamental to the employment contract? Does the crime damage the Council s image or reputation? 8. Formal Stage Disciplinary Procedure 8.1. If, after the informal stage or outcome of an investigation, the employee s conduct does not meet acceptable standards, the employee should be notified in writing that he/she will be required to attend a disciplinary hearing. The notification should contain enough information about the alleged breach of conduct and possible consequences to enable the employee to prepare for the hearing (see the Toolkit for the Disciplinary Procedure). They should be given a reasonable opportunity to collect and present their evidence. All stages of the formal disciplinary hearings will be held by the line manager or a more senior manager with a representative from Human Resources in attendance in an advisory role. A note relating to the all formal warnings will be retained on the individual s personal file. Warnings will normally be disregarded for disciplinary purposes after a period of 12 months (this may be extended to 2 years in exceptional circumstances) Adjournment before decision You should adjourn the hearing to allow time for proper consideration before a decision is taken about whether a disciplinary penalty is appropriate. It also allows for any further checking of any issues raised, particularly if there is any dispute over facts Formal Written Warning (Stage 1) If at the end of the hearing there is a belief that disciplinary action is appropriate, the manager will issue a formal written warning giving details of the complaint, the improvement or change in the behaviour required and the period allowed for this. The manager should also inform the employee that a final written warning may be considered if there is no satisfactory improvement or change. Disciplinary Policy Adopted November Page 10 of 14

11 The employee must also be told: That the formal written warning is the first stage of the disciplinary procedure That a note of the formal written warning will be kept on the individual s personal file and taken account of for further disciplinary action If he/she fails to improve or there is a recurrence of misconduct irrespective of type of offence further disciplinary action may be taken. That the employee has the right of appeal As with all stages of this procedure the warning must always follow an investigation and an interview with the individual concerned Final Written Warning (Stage 2) Where there is still a failure to improve or change behaviour or the breach of conduct is very serious the employee will be required to attend a second (or first at this stage) disciplinary hearing. If at the end of the hearing there is a belief that disciplinary action is appropriate the manager will issue a final (or first and final) written warning to the employee. The letter will give details of the complaint; the manager should also inform the employee that if there is no improvement or change this could result in dismissal or advised of some other action short of dismissal. The employee should also be referred to his or her right of appeal Dismissal (Stage 3) If conduct remains unsatisfactory and the employee still fails to reach the required standards or there is an allegation of gross misconduct the employee will be required to attend a stage 3 disciplinary hearing and must be informed that the outcome may be dismissal. If at the end of the hearing there is a belief that disciplinary action is appropriate the employee may be dismissed (with or without notice). The employee may be dismissed summarily i.e. without a period of notice if the circumstances justify this course of action i.e. gross misconduct For dismissal to be fair the reason must be allowed by law as follows: Capability or qualifications of the employee (see the Policy and Guidance for Capability Conduct of the employee (s the Policy and Guidance to Conduct and Personal Behaviour) Redundancy (see the Policy and Guidance for Redundancy) Contravention of a duty or restriction - an employee cannot continue to work in their current position without contravening a legal duty or restriction (statutory ban) e.g. where he or she has been banned from driving and a valid driving licence is an essential qualification. However employers are still expected to try to find alternative employment within the organisation. Some other substantial reason - e.g. dismissal where a partner/relative is working in a line management position (managers must first seek alternative employment - discuss with HRC) or for a potential breach of trust and/or where there is a danger of a breach of confidentiality. These are examples and there may be other substantial reasons for dismissal Some Other Substantial Reason - In exceptional circumstances the manager may believe that there has been such a serious breakdown of trust and confidence or another extremely serious issue which does not fall within any one of the following three categories, namely conduct, capability or redundancy but is for some other substantial reason. Disciplinary Policy Adopted November Page 11 of 14

12 Dismissal for some other substantial reason may only be justified in exceptional circumstances. (It must not be used as a substitute or to fast track matters that should appropriately be addressed under other procedures e.g. disciplinary or capability. In these circumstances the procedure will begin at this third and final stage. The facts of the case must be established and the action must be fair in the circumstances. The employee must be given a chance to present their case at the hearing see Appendix 1 for timings and the process. This is based on the ACAS Code of Practice The manager must show that he or she has tried to resolve the problem through other Wokingham Borough Council procedures e.g. supervisory hearings, appraisals, counselling, training etc. Any action should not be a surprise to the employee. Where an employee believes that there has been a breach of trust and confidence by the employer the Grievance Procedure should be used Some other substantial reason as a reason for dismissal may only be used when approved by the Head of Human Resources Dismissal for misconduct (not regarded as gross misconduct) will normally be with pay in lieu of notice. Summary dismissal for gross misconduct will normally be effected immediately (after a thorough investigation and disciplinary hearing) and without pay in lieu of notice Other penalties Where the severity of the employee s misconduct does not warrant dismissal consideration should be given to the following sanctions: Where appropriate, transfer the employee to another area of work Suspension without pay the length of suspension is dependent on the seriousness of the offence up to a maximum of 5 working days without pay Loss of increment Where appropriate impose a financial penalty e.g. repaying a financial loss borne by the Council demotion The decision to dismiss should be confirmed in writing. Under the Employment Rights Act 1996 an employee with one year s continuous service or more has a right on request to a written statement of particulars of reasons for dismissal The Appeal An employee can appeal at any level of the formal stage of disciplinary process i.e. Formal Written Warning and Final Written Warning against the reasonableness of the decision taken at the hearing; (this does not include the informal stage). The specific grounds for appeal must be made by the employee in writing to manager 2 levels above within five working days of receipt of the letter confirming the outcome of the disciplinary hearing and the action to be taken Appeals against dismissal must be made to the General Manager or Chief Executive as appropriate within 5 working days of the outcome of receiving notification of the outcome of the hearing. (See the Toolkit for the Disciplinary Procedure). Disciplinary Policy Adopted November Page 12 of 14

13 Appendix 1 Dismissal for Some Other Substantial Reason Based on ACAS Code of Practice 1. Some Other Substantial Reason (SOSR) as a reason for dismissal provides employers with a way of fairly dismissing an employee for reasons that do not fall into other categories (i.e. conduct, capability, redundancy and legal restriction). There is no official list of reasons, as it would be impossible to list all the circumstances in which an employer could be justified in dismissing an employee For a dismissal under SOSR to be fair, the reason put forward must be substantial and not trivial, and must therefore be capable of amounting to a reason which could justify dismissal The grounds must be substantial, such that dismissal is a reasonable response in the circumstances There must be evidence that the employer has investigated thoroughly and where appropriate, made every effort to solve the problem in another way There must be evidence that the impact on or risk to the employer s business is or could be substantial. Step 1 Statement of grounds for action and invitation to hearing: Step 2 The hearing: The manager must set out in writing the employee s alleged conduct or characteristics, or other circumstances, which lead them to contemplate dismissing or taking disciplinary action against the employee and also inform the employee that a possible outcome of the hearing could be dismissal. The manager must send the statement or a copy of it to the employee and invite the employee to attend a hearing to discuss the matter. The hearing must take place before action is taken, except in the case where the disciplinary action consists of suspension Step 3 The hearing must not take place unless: I. The manager has informed the employee what the basis was for including in the statement under Step 1 the ground or grounds given in it, and II. The employee has had a reasonable opportunity to consider their response to that information. The employee must take all reasonable steps to attend the hearing After the hearing, the manager must inform the employee of their decision and notify them of their right to appeal against the decision if they are not satisfied with it. The Appeal - see The Toolkit for the Disciplinary Procedure: Disciplinary Policy Adopted November Page 13 of 14

14 Dismissals defended under the heading of SOSR are required to satisfy the test of reasonableness in the same manner as dismissals for other reasons i.e. was dismissal a reasonable response in the circumstances? Disciplinary Policy Adopted November Page 14 of 14

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