INVESTIGATING COMPLAINTS AND ALLEGATIONS AGAINST EMPLOYEES POLICY AND PROCEDURE

Transcription

1 INVESTIGATING COMPLAINTS AND ALLEGATIONS AGAINST EMPLOYEES POLICY AND PROCEDURE APPROVED BY: South Gloucestershire Clinical Commissioning Group Quality and Governance Committee DATE Date of Issue: Version No: 1 Date of Review: Author: NBT HR and Joanne Rowse, Head of Governance and Risk 1

2 Document status: Current Version Date Comments Version

3 CONTENTS Section Summary of Section Page Cont Contents 3 1 Introduction 4 2 Key Steps to consider when an incident or allegation occurs 4 3 Suspension 5 4 Investigation 7 5 Notifying witnesses 8 6 Special Circumstances 10 7 Other Relevant Information to Consider 10 8 Report and Recommendations 10 9 What happens after the investigation? Panel Hearings Equal Opportunities/Equality Impact Assessment Review Date 11 Appendix Appendix 1 Form for Structured Decision Making Relating to Suspension 12 Appendix 2 Letter to Employee Advising of Suspension 14 Appendix 3 Inviting to Interview 15 Appendix 4 Information on right to be accompanied 16 Appendix 5 Flowchart showing what happens at Disciplinary Hearing 17 3

4 1. INTRODUCTION 1.1. This procedure aims to assist the investigation of incidents or allegations in both circumstances where it is clear or unclear, at the outset, which Human Resources policy or procedure should apply. 2. KEY STEPS TO CONSIDER WHEN AN INCIDENT OR ALLEGATION OCCURS 2.1 The manager must in all cases discuss the receipt of an allegation or complaint with their Human Resources Department). This helps to put the complaint/allegation in context and helps in the planning of an appropriate investigation. 2.2 Managers must be careful not to pre judge an outcome. An investigation does not always lead to a formal outcome and can result in no action, informal counselling, or an appropriate action plan. 2.3 Prompt action to ensure that allegations are thoroughly investigated is essential in order to capture any evidence before memories fade and to minimise any operational difficulties following suspension and any stress which may be caused to the individual being investigated. 2.4 We recognise that individuals may have different norms, values and expectations. Those involved in using this policy must therefore recognise this and take account of any such issues that may present themselves during the process When should the matter be referred to the Counter Fraud Service? If you suspect that an allegation or complaint is fraud the Counter Fraud Service will need to be informed for advice. You should always liaise with Human Resources who will notify the local counter fraud specialist. No further action should be taken until advice has been received. A copy of Countering Fraud in the NHS Applying appropriate sanctions consistently is available from Human Resources or can be found on the Department of Health website. 2.6 When should the matter be referred to the Police? Issues which at first appear, following discussion with Human Resources and Counter Fraud, to be criminal should be referred to the police. At this point advice would be taken from the Police as to whether it is appropriate to continue the internal investigation There may also be occasions where the was CCG informed of an incident/criminal activity by the Police, which could lead to an internal investigation by the CCG and possible subsequent formal action If the issue is referred to the Police the Director on-call or Director of service should be informed. 2.7 When should the matter be referred to the Professional Registration 4

5 Body? If professional misconduct is suspected, the CCG will decide whether or not to refer the matter to the relevant Professional Body either prior to or following an investigation. The professional lead should notify the registration body following discussion with Human Resources Or, where an individual resigns and leaves the CCG before a formal hearing has been convened but an investigation has concluded that there are significant concerns regarding professional practice, the CCG may also decide to refer the matter to the relevant professional body. In some cases where the individual has resigned to take up a role elsewhere the new employer may be notified of the referral Where an employee leaves the employment of the CCG prior to the conclusion of the investigation the CCG may still continue with the investigation in the individual s absence and as a result may decide to refer the matter to the relevant professional body In all cases where a referral to the Professional Body is made the individual will be notified of this. 2.8 What if the allegation involves a child? If the allegation is relating to an incident involving a child, the manager will need to consider the Safeguarding Policy and advice should be sought as a priority. In addition the Nurse Director, Head of Quality and Safeguarding or the Designated Nurse Safeguarding Children should be informed. 3 SUSPENSION 3.1 When should a member of staff be suspended of duty? On occasions it may be necessary to consider suspending a member of staff from duty. This is a neutral act which does not constitute disciplinary action and which does not imply guilt. However, it can fundamentally affect the relationship between employee and employer and it is not a decision which should be taken lightly. Therefore, the manager must always seek advice from the Human Resources department prior to suspending a member of staff If a member of staff is suspended they will be suspended on normal pay. This should be recorded as authorised absence Suspension will be appropriate if, following a discussion with Human Resources, any of the following apply: It is inappropriate or impossible to temporarily move the member of staff to another location. To remove the member of staff from a potentially sensitive situation. The presence of this individual may obstruct a full investigation. 5

6 To prevent discussion, harassment or intimidation [manipulation of witnesses] To prevent tampering with evidence. Following an allegation of gross misconduct Appendix 1 may also be used to assist in the decision of whether to suspend an individual. 3.2 Who can suspend a member of staff from duty? The manager who becomes aware of the misconduct should discuss the matter with the relevant Director or equivalent and Human Resources. The Director should consider whether suspension is appropriate, and consider any alternatives to suspension (i.e. moving the staff member, altering their working arrangements etc) Once the decision has been taken to suspend the staff member, he/she may carry out the suspension or delegate authority to another appropriate manager such as a Senior Manager, Head of Department or On Call Manager. This must be a different individual from the Investigating Officer. 3.3 How should a member of staff be suspended from duty? The manager should always discuss the suspension with the Director or equivalent first The Director must inform the member of staff that they need to meet with them about a serious matter. This notification would normally be provided verbally The member of staff should have the opportunity to be accompanied by a fellow worker. The unavailability of a representative must not be allowed to delay the suspension from duty. In such cases the employee will be offered the opportunity to be accompanied by a fellow colleague At the meeting the member of staff must be advised of the complaint or allegation and informed that there is no alternative but suspension from duty pending an investigation into the allegation The member of staff must be advised of the terms of the suspension The member of staff should also be given an indication of how long the investigation might take. If numbers of witnesses are involved it can take several weeks The allegation and terms of the suspension must then be confirmed in writing. A template can be found in Appendix 2. This should be checked by Human Resources and then sent to the member of staff by Recorded Delivery, with the receipt for this being retained on file. Alternatively and where practicable, the letter may be handed to the employee in person at the suspension meeting. A copy of the relevant Policy should also be attached e.g. Disciplinary, Capability, etc. 6

7 4 INVESTIGATION 4.1 Who should carry out the investigation? The allegation/complaint must be investigated by an Investigating Officer who has the appropriate skills, experience and professional credibility to commence and conclude a full and fair investigation in a timely manner. In addition to this the Investigating Officer must have sufficient distance from those to be investigated The Human Resources Department will provide guidance and support and will usually assist the Investigating Officer throughout the investigation, including attendance at meetings/interviews There may be times when it is appropriate for an Investigation Panel to be appointed. This is at the discretion of the relevant Director The Investigating Officer will be appointed by the Director who heads the service in which the investigation is required Where possible, the Investigating Officer will be from the same Organisation. However, in some cases it may be appropriate to bring in an appropriate person from an external Organisation The Investigating Officer may involve an appropriate professional HR or legal advisor. 4.2 What is the role of the Investigating Officer? It is the Investigating Officer s responsibility to make all reasonable efforts to gather relevant evidence relating to the allegation. For example; Details of any equipment involved Advice from an appropriate professional adviser or expert Relevant packaging, labels, notes or other documents Information from key witnesses The duty roster for the time of the alleged incident A plan of the department Local procedures, professional codes or guidelines Relevant health issues Competency The Investigating Officer should obtain each witnesses consent for his or her statement to be used in the report. It must be made clear to the witness that the statement may be seen by the accused member of staff. All statements/notes taken at meetings must be signed and dated by the witness. This would normally be done following the meeting, once the notes have been typed up The Investigating Officer may consult with professional colleagues or experts as applicable. 7

8 4.2.4 If dismissal occurs the panel must be able to show that a genuine belief of the employees guilt is based on reasonable grounds following a thorough investigation. The Investigating Officer must therefore ensure a full and thorough investigation has been conducted. 4.3 What is the role of the Human Resources in this investigation? A Human Resources representative will be identified to support and advise the investigating officer throughout the investigation The identified Human Resources representative will be able to advise witnesses and the accused member of staff regarding the policy and procedures throughout the investigation. They will be able to put the employee in touch with appropriate support i.e. Trade Union, Occupational Health The Human Resources representative will support the Investigating Officer in producing the report for the nominated Director nominated to hear the case. Support may also be provided at the hearing should it be felt necessary. 5 NOTIFYING WITNESSES 5.1 In most cases, the investigation will begin with the person against whom the allegation has been made, provided there is sufficient information to do this. If this is not the case, statements will be collected from the key witness (es). 5.2 Where the allegation is bullying and harassment, the investigation will begin with the person who is making the allegation. 5.3 A standard letter will be sent to witnesses to confirm the date, time, venue and purpose of the meeting. (see Appendix 3). 5.4 The Investigating Officer will give witnesses the opportunity to be accompanied by a trade union representative or a fellow worker. 5.5 The Investigating Officer will give reasonable notice of the meeting. 5.6 The Investigating Officer will consider the following when interviewing witnesses Witnesses should not be interviewed together Introductions and an explanation of the role of the Investigating Officer. It should be made clear that this is a fact finding interview and it is not a formal disciplinary meeting Ensure that a suitable venue is used (this may be somewhere other than that person s normal place of work to preserve confidentiality for example) Inform line managers of the names of those likely to be interviewed. 8

9 5.6.5 Gather any documents you may need for the interviews Only ask questions relevant to the investigation Witnesses should only be asked to provide information on the facts as they appear and should not be asked to speculate on the reasons behind them At no time should witnesses be placed in an unfair position, asked leading questions or be harassed or intimidated Witnesses must be informed that if the evidence they give is considered to be key to the allegations made against an individual, it may be disclosed as relevant documentary evidence which the individual would be entitled to see Following the interview notes will be sent to the witness as soon as possible to sign and confirm accuracy. If witnesses refuse to sign the notes they should provide details why, and this must be recorded. The notes should be returned as soon as practically possible to avoid delaying the investigation and where appropriate the Investigating Officer should provide a deadline for return. Additionally, the witness may provide a statement which should be as detailed as possible, including dates, times and locations of events The Investigating Officer will consider any comments, change the document if appropriate and send this back to the witness for signature. If the Investigating Officer considers that the changes are not appropriate, the statement will be sent back to the witness with an explanation of why the changes were not made The following are not allowed to accompany the accused at the interview (see also Appendix 4 on who may act as a Companion): Current line managers and others who had line management responsibility for the interviewee during the period to which the allegations relates. Proposed representatives or colleagues who may be interviewed as part of the investigation. 5.7 What if a witness doesn t want to co-operate with the investigation? There is no legal requirement that individuals should co-operate with an investigation. However, all staff have a duty as employees to co-operate with any fair and reasonable request made by the Investigating Officer. In addition, in some circumstances staff may be obliged to cooperate by their professional Code of Conduct. 5.8 What if the subject of the investigation doesn t want to cooperate? If the subject decides not to assist, or attempts to prolong/delay the investigation by not responding promptly to reasonable requests for information, it must be made clear to them that the investigation will still 9

10 continue in the absence of their cooperation and a record kept of the reasons for this decision. It should also be made clear to the employee that such actions will not help their case. 5.9 What about cooperation of members of the public? There is no obligation upon the public or staff from other Organisations to cooperate with internal disciplinary matters. They should therefore be approached carefully and their help requested on a voluntary basis. 6 SPECIAL CIRCUMSTANCES 6.1 The Investigating Officer should investigate whether there are any special circumstances to be taken into account i.e. personal or other outside issues affecting performance or conduct, being careful not to judge the case. It may be necessary to seek additional guidance from HR or Occupational Health. 7 OTHER RELEVANT INFORMATION TO CONSIDER 7.1 Personal Information It may be necessary to refer to other records or relevant documentation such as training records, personal file. All information should be treated in confidence. 7.2 Interviewing people with disabilities When conducting interviews, every effort should be made to avoid causing unnecessary stress. There may be occasions when it is necessary to interview staff with particular disabilities, which may present difficulties in understanding and answering questions. This may arise for example when the member of staff is deaf or hard of hearing, suffering anxiety or stress (related either to the work/domestic situation or both) or other illness. These matters should be borne in mind by the Investigating Officer when conducting the interview. 7.3 Is there any occasion when the investigation should be extended? Sometimes, during the course of an investigation, allegations are made or irregularities come to light which require further investigation. It may therefore be necessary to extend the investigation accordingly. For example, during criminal or legal proceedings The Investigating Officer will discuss the circumstances immediately with Human Resources who will decide whether steps should be taken to extend the investigation or exceptionally set up a separate investigation. 8 REPORT AND RECOMMENDATIONS 8.1 Following the investigation, the Investigating Officer will produce a report. The report into the investigation should be clear and concise for the Director to review and action as appropriate. 10

11 8.2 A chronology of events, witness statements and other documents should be attached as appendices. The pages and paragraphs should be numbered and a contents page added. 8.3 The report should comprise of: Introduction Terms of reference Summary of findings - referring to the appendices Recommendations Whilst this may include a recommendation to convene a hearing this will not include a recommendation on the outcome of that hearing 8.4 A copy of the report and accompanying information will only be sent to the accused in the event of formal action being taken. 9 WHAT HAPPENS AFTER THE INVESTIGATION? 9.1 The recommendations of the Investigating Officer will be considered by the Director who may wish to take advice from the appropriate professional lead. They will then decide the appropriate action to take in accordance with the relevant CCG Policy. 10 PANEL HEARINGS 10.1 Any hearing would be held under the relevant policy and more information on this issue can be found within that policy. 11 EQUAL OPPORTUNITIES/EQUALITIES IMPACT ASSESSMENT 11.1 An Equality Impact Assessment has been completed for this policy and procedure and it does not marginalise or discriminate minority groups. 12. REVIEW DATE 12.1 This policy and procedure will be reviewed after 2 years, or earlier at the request of either staff or management side, or in light of any changes to legislation or National Guidance. 11

12 APPENDIX 1 FORM FOR STRUCTURED DECISION MAKING RELATING TO SUSPENSION SECTION 1 PERSONAL DETAILS OF EMPLOYEE BEING CONSIDERED FOR SUSPENSION Name of employee: Place of work: Job Title: Grade: SECTION 2 THE INCIDENT/ISSUES 1 Allegation or incident being considered: 2 What evidence is there to support the allegation? Include information on how and when you were informed of the allegation 3 On the basis of the limited information available to you, how likely do you think it is that the allegation/incident as described actually occurred? Unlikely/ Likely 4 Are there any other related issues of which you are aware and feel need to be taken into consideration? If so please outline these. 5 Does the allegation/incident suggest that any illegal activity or fraud has taken place? If yes please contact the Human Resources Department or on-call manager before discussing this with the individual. 6 What are / were the possible consequences within the totality of the incidents/actions / behaviours which are believed to have occurred? Not serious / Very serious 7 If no action is taken, how likely is it that there could be a repetition of the incident? Unlikely/Likely 8 If there were a repetition of the incident how serious would that be? Not serious/very serious 9 Are there any actions you can take other than suspension which may minimise or prevent the likelihood of a re-occurrence of the incident? 12

13 If so please detail these, including whether you believe they would be acceptable to the employee. 10 If the employee remains at work is there any likelihood that they will be able to alter any information that may be required as part of the investigation? Yes/No 11 If the employee remains at work is there any likelihood that their presence may delay the investigation? Yes/No 13

14 INFORMING EMPLOYEE OF SUSPENSION/INVESTIGATION APPENDIX 2 De ar I am writing to confirm the details of our meeting which took place at [time] on [date] in [venue]. I was accompanied by [who was present: manager/hr representative] and you were accompanied by [name of colleague]. The purpose of the meeting was to advise you of [a specific] serious allegation. [Note: the allegation should be outlined in the letter]. Due to the serious nature of this allegation I advised you that I had no alternative but to suspend you from duty on normal pay pending an investigation. I also advised you that suspension does not constitute a disciplinary action and does not imply guilt. I/the Human Resources Representative informed you of the terms of suspension which are as follows: You must make yourself available to assist with the investigation and you must not take leave unless it is already booked. You must not enter work premises without permission from (a named individual [senior manager]) except to see a trade union representative and you must not discuss the matter with work colleagues. You will be kept informed of the progress and you will be advised of any delays that occur. An Investigating Officer will be appointed to carry out the investigation in to the allegation. I will advise you of their name as soon as possible. To commence the investigation, they will contact you in the first instance I realise that this is a difficult time and would remind you that a confidential counselling service is available to you through the Occupational Health Service. If you need any further clarification of the arrangements, please do not hesitate to contact me. Yours sincerely 14

15 APPENDIX 3 INVITING TO INTERVIEW Dear I am writing to advise you that I have been appointed to investigate an allegation that [outline allegation] and would like to meet with you to obtain further information. I would like to clarify that this allegation is not against you but following initial discussions with relevant parties I felt you may be able to provide additional information which would assist this investigation. The investigation will be conducted under CCG s Investigation Policy and Procedure, a copy of which I have attached. I will be accompanied by (enter name and title), at this interview. I would therefore be grateful if you would be able to attend an interview, to be held: On: [Enter Date] At (Enter Time) Venue:.(Enter Venue) I would be grateful if you could confirm your attendance by contacting [enter relevant contact details] I would like to take this opportunity to advise you that you are welcome to be accompanied at this interview by a friend or colleague if you wish. Should you have any queries with regards to the above please contact me on (enter contact details. Yours sincerely 15

16 THE RIGHT TO BE ACCOMPANIED (TAKEN FROM THE ACAS CODE OF PRACTICE ON DISCIPLINARY AND GRIEVANCE PROCEDURES) APPENDIX 4 1 Employees have a statutory right to be accompanied by a fellow worker or trade union official when they are required or invited by their employer to attend disciplinary interviews/hearings. 2 Informal discussions or counselling sessions do not attract the right to be accompanied unless they could result in formal warnings or other actions. 3 Employees must make a reasonable request to their employer if they want to be accompanied and tell the employer who their companion is. 4 The Companion can be a fellow worker or a trade union representative. Nobody has to accept an invitation to act as a Companion, and should not be pressurised to do so. 5 When choosing a Companion, the employee should be aware that it would not be reasonable to insist on being accompanied by a fellow worker whose presence would prejudice the meeting or who might have a conflict of interest. 6 The Companion can have a say at the interview/hearing but cannot answer questions for the employee. 7 Employees who are acting as Companions can take paid time off to prepare for and attend a meeting/hearing 16

17 APPENDIX 5 SUMMARY OF WHAT HAPPENS AT A FORMAL HEARING UNDER THE DISCIPLINARY PROCEDURE 1. Manager summarises key points of written Statement of Case and calls witnesses in presence of employee &/representative. 2. Disciplinary Panel questions manager and witnesses. 3. Employee or representative asks questions of manager and witnesses. 4. Manager re-examines his or her witnesses on any matter referred to in their examination by members of the Disciplinary Panel, the employee or their representative. 5. Employee or employee s representative puts his or her case in presence of manager. 6. Disciplinary Panel question the employee, their representative or witnesses. 7. Manager has opportunity to ask questions of employee, employee s representative or employee s witnesses 8. Employee or employee s representative re-examines witnesses. 9. Manager sums up & makes closing statement 10. Employee or representative sum up and make closing statement 11. Adjournment while Panel reaches decision. 12. Decisions and reasons 17