Version: 3.0 Document author(s): Stuart Selkirk Approved by: Executive Partnership Forum Date approved: 17 July 2014 Review date: 30 September 2016 Document scope: Trust-wide Version History Log Use this table to record the version history for this document. Detail the key changes made to each version. Version Date Published Details of key changes V2 01 Sept 2014 Removal of Commissioning Manager
Contents 1. Purpose... 3 2. Scope... 3 3. General Principles... 3 4. Exceptions... 4 5. Procedure... 4 6. Formal Investigation... 5 7. The Investigation... 5 8. Final Report... 8 9. Outcomes... 9 10. Implementation, Monitoring and Review... 10 2 of 10
1. Purpose 1.1. This protocol is intended to be used by all managers in the Trust who find themselves faced with an allegation towards or about a member of staff which could potentially lead to a disciplinary hearing. However, it should not be assumed that the outcome of an investigation will necessarily be a disciplinary hearing; the purpose of the investigation is to uncover the facts of the allegation or situation. Once the facts are known, it may appropriate to look at a range of further actions, which may include disciplinary action, but which may include training, performance management or other outcomes. For that reason, the protocol is deliberately not entitled Disciplinary Investigations. 1.2. However, a disciplinary investigation is key to the process that must be followed prior to carrying out a fair dismissal, as an inadequate investigation may render the dismissal unfair. 1.3. It is therefore important that where a serious misconduct issue is suspected, a full and reasonable investigation is carried out, although the investigator should remain impartial and should not presume the outcome of the investigation. 1.4. The protocol also gives guidance on the role of the Investigating Officer (IO). 1.5. The protocol is based on the ACAS (Advisory, Conciliation and Arbitration Service) code of practice on disciplinary and grievance procedures which, although not legally binding, are taken into account by Employment Tribunals when considering cases. 2. Scope 2.1. This policy applies to all Trust employees who are employed under the terms and conditions of Agenda for Change. It does not apply to Medical and Dental staff. 3. General Principles 3.1. The investigating officer should not be connected in any way to the facts giving rise to the investigation in order to avoid any suggestion of bias in the way that the investigation is conducted. The ACAS code states that "where practicable, different people should carry out the investigation and disciplinary hearing". 3.2. The rules of natural justice require that the employee should know the nature of the allegation against him or her and should be given the opportunity to state his or her case. The evidence collected during the investigation will be put to the employee in any subsequent hearing and will enable the employee to state his or her case in response. 3.3. The ACAS code states that it is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In any event, it will be necessary 3 of 10
4. Exceptions for the employer to collect statements from witnesses as soon as practicable before memories fade. 4.1. Where the allegations, if proven, may lead to a criminal conviction, reference should be made to the Local Security Management Specialist (LSMS) Investigation process in the relevant appendix of the Trust s Disciplinary Policy. Examples of this include assault, theft, criminal damage etc. 4.2. Where the allegations, if proven, may constitute fraud, reference should be made to the Trust s Disciplinary Policy and Local Counter Fraud Specialist. 4.3. Where allegations of abuse are made at any point before or during the investigation, reference should be made to the Safeguarding flow chart in the relevant appendix of the Disciplinary Policy. 5. Procedure 5.1. When a matter of concern comes to light, the line manager should refer it in the first instance to a senior manager, who will make the decision as to whether or not an investigation needs to be commissioned. If the facts of the situation are clear cut, or where, for example, it is clear that a grievance or disciplinary panel could ascertain the facts at a hearing, then there will be no need to commission an investigation. The decision to do this must not be taken without prior discussion with HR. Where the facts are less clear, or where there are a number of potential witnesses, then it may be more appropriate to commission an investigation. This can normally be determined by an initial assessment, which should be carried out by the line manager. Initial Assessment 5.2. The line manager or senior manager should carry out a preliminary assessment as soon as is reasonably practicable to establish the nature and seriousness of the concern and whether it is necessary to appoint an Investigating Officer to carry out a full investigation. This initial assessment may include short interviews with the person against whom the allegations have been made, except in cases of potential fraud or where there are safeguarding concerns, key witnesses and review of any relevant notes or records as well as any other documents relevant to the concern raised. The manager should seek guidance from Human Resources. This initial assessment should be informal, with no need for representation or HR support. If the initial assessment suggests that a further, more formal, investigation be carried out, then the manager should contact HR for advice. 4 of 10
6. Formal Investigation 6.1. When considering a formal investigation, the Investigating Officer should discuss with the HR support some or all of the following points: 7. The Investigation What to investigate the story which is the basis for the investigation, and how it came to light The extent of the investigation parameters/boundaries, which may change as the investigation progresses Identity & status of the parties names, addresses, complainant, witnesses, manager, relationships, etc Timescales ordinarily, report to be completed a maximum of 6 weeks from commissioning. Should there be any variations or unexpected delays during the progress of the investigation, this should be escalated to the HR Site Lead and the IO s line manager. 7.1. Conducting the Interviews 7.1.1. The Investigating Officer should carry out semi-structured interviews i.e. some questions should be planned beforehand, whilst others should follow on from the responses given. 7.1.2. The preferred method is to take notes of the pertinent points raised during the interview, and then to take a statement from the interviewee. The statement can be handwritten by either the interviewee or anyone else present, or typed if equipment is available. The statement should be signed and dated by the interviewee. 7.1.3. However, recognising that this method is not always possible or practicable, agreement can be made at the interview that a statement will be provided within 5 working days of the interview. This can either be typed and sent to the interviewee for signature, or the interviewee can produce their own statement. In the event that the statement contradicts the notes made during the interview, the IO should make reference to that in the final report. 7.1.4. Statements made by witnesses will be made available to the employee facing allegations if the outcome is to proceed to a disciplinary hearing, and therefore witnesses need to be advised that this to occur. 7.2. Investigatory Meeting with Employee 7.2.1. Depending on the circumstances, as part of the investigation, it may be necessary for the Investigating Officer (IO) to interview and take a statement from the employee at the centre of the allegation, so as to obtain his or her account of events. This is 5 of 10
likely to be appropriate where the case against the employee depends to a large extent on witness evidence given by third parties such as fellow employees. 7.2.2. The Investigating Officer should give the employee advance warning of the meeting and time to prepare for it. 7.2.3. At the start of the meeting, the IO should remind the employee and any witnesses of the confidentiality of the process. 7.2.4. It would also be advisable for the IO to ask the employee if he or she is aware of any other witnesses to the incident or any other documents or issues that may be relevant, so that these can be followed up. 7.2.5. If the employee fails to attend an investigatory meeting, the IO should contact him or her and find out the reason for the nonattendance. There is no legal obligation on the Trust to rearrange the meeting, but the Trust should be mindful of the need to carry out a reasonable investigation as part of a fair process. It would therefore be good practice to rearrange the meeting, unless it is clear that the employee does not intend to cooperate with the investigation. The IO should consult the employee to ensure that the rearranged time is suitable for him or her. If the employee again fails to attend, without good reason, the IO should consult with Human Resources to decide whether or not to proceed with disciplinary action on the information it has available. 7.2.6. The ACAS code points out that, where the employer holds an investigatory meeting with the employee, this should not, of itself, result in any disciplinary action. The purpose of the investigatory meeting is to establish facts, not to judge the employee's conduct or to make any decision on a disciplinary sanction. Where the Trust decides that there is a disciplinary case to answer, this should be dealt with at a formal disciplinary hearing. 7.3. Right of accompaniment 7.3.1. Although there is no statutory right to be accompanied at an investigatory meeting, the Trust is willing to allow staff to be accompanied at formal investigative meetings, as long as this does not create a delay in the investigatory process. This does not apply to preliminary investigations. If a member of staff does wish to be accompanied, that companion can only be either a trade union representative or a work colleague not involved in the incident being investigated. Where possible, it would be courteous to try to arrange dates by taking into account the availability of those representatives 6 of 10
7.4. Sickness 7.4.1. If an employee is unable to attend an investigative interview due to sickness, a number of options should be detailed to them in writing in order to proceed: 7.5. Witnesses The arrangement of one alternative date or venue. Advising the employee that if they are unfit to attend they may utilise one of the following options: o The opportunity to put their statement of case in writing o The opportunity to have a representative state their case on their behalf 7.5.1. The IO should arrange to meet individually with any witnesses to the incident or events giving rise to the investigation. He or she should ask the witnesses to give an account in their own words of what took place. This should be in terms of what they personally witnessed or had involvement with. 7.5.2. There may be occasions when the witnesses are not the employer's employees, for example patients, relatives or contractors. If this is the case they should be asked to assist in the disciplinary investigation, for example by providing a written statement. This will help to show that reasonable steps have been taken. 7.5.3. In some cases it may be necessary for CCTV evidence to be checked. 7.6. Police investigations 7.6.1. If the police are carrying out a criminal investigation into a matter that is also the subject of an internal disciplinary investigation, the Trust should be careful that its own investigation does not prejudice or disrupt the police proceedings. It should be aware that the employee concerned may be less likely to cooperate with an internal investigation if he or she believes that this could prejudice his or her defence with regards to the police. 7.6.2. The Trust must carry out its own reasonable investigation, as far as the circumstances allow. It should not rely on the outcome of the police investigation. If the police investigation does not result in prosecution, the Trust could still conclude that disciplinary action is justified, on the basis of its own investigation. This is because criminal proceedings require allegations to be proved beyond all reasonable doubt, whereas an employer has to show only that it had reasonable grounds for believing that the employee committed the alleged conduct, on the balance of probabilities. 7 of 10
7.6.3. If a police investigation results in prosecution, it will generally not be necessary for the Trust to await the outcome of a criminal trial before deciding whether or not to take disciplinary action, based on its own investigation. If the employee is suspended in these circumstances, suspension should be on full pay. 7.7. Documents 8. Final Report 7.7.1. The IO should also collect any documents that are relevant to the matter at hand. For example, if the charge concerns an allegation of fraudulent expense claims, the claim forms should be collected so that they can be put to the employee for his or her explanation. There can be no exhaustive list of the type of documents that may be required, but they might include rota sheets or absence records if it is necessary to establish who was on duty on a particular day, plus any letters, memos or emails relevant to a disciplinary incident or chain of events. If patient notes are required, then these should be anonymised in order to preserve confidentiality, and there should be no direct reference to a patient or relative by name in the final report. 8.1. The IO should compile the information gathered during the investigation so that this can be submitted, with the IO s recommendations, where appropriate, to a senior manager. This submission should be made within 10 working days of the conclusion of the investigation. 8.2. That Manager, in consultation with HR, will decide whether or not disciplinary or any other proceedings should be instigated. The evidence gathered will usually amount to a set of statements, interview notes if appropriate and the documents that will be relied on. If the investigation results in a disciplinary hearing, the employee should have the opportunity to see these papers in advance of the hearing, in accordance with the Trust Disciplinary Policy. 8.3. If, following the investigation, it is decided that disciplinary action is not appropriate, the manager should inform the employee of this in writing. If the employee has been suspended during the investigation, the suspension should be lifted immediately and appropriate measures should be put in place to facilitate a return to work. 8.4. The format of the report should be as follows: Section 1 - Introduction 1.1 Executive Summary if the report is lengthy or complex 1.2 Background Who is involved, their name, post title, etc. 1.3 The Allegations and Sequence of Events The story that led to the investigation 8 of 10
9. Outcomes Date, time, place of alleged incidents List each allegation separately 1.4 Policy References Any Policies, Protocols, procedures, legislation etc pertaining Identify the part of the policy etc. that has been breached. Section 2 The Investigation 2.1 The Conduct of the Investigation Inv. officer, support, timescales, etc. 2.3 Details of the Investigation including quotes from interviews, etc. 2.4 The Outcome of the Investigation were the allegations found? 2.5 General Comments Section 3 - Conclusions 3.1 What did the investigation reveal? Was there a breach of policy/procedure? What evidence supports the allegations and why? What evidence disputes the allegations and why? Are there any inconsistencies? Are there any mitigating circumstances? Section 4 Recommendations Take each allegation in turn, give a recommendation for each. This may include recommendations about reviews of working practices, policies etc. State the reasons you believe the allegations are proven or not Does a Disciplinary Hearing need to take place? It should not include recommendations as to the possible outcome of any potential hearings Investigating Officer Signature 9.1. On receipt of the final report, and if satisfied that a thorough investigation has been carried out, HR must decide what, if any, action they wish to take. 9.2. Options include, but are not limited to: 9 of 10
A decision that there is sufficient evidence to warrant a disciplinary hearing. A decision that there is sufficient evidence to warrant a grievance hearing A decision that although neither of the above is warranted, they would like to meet with the parties concerned to discuss the contents of the investigation. Referral to the Capability, Dignity at Work or Managing Attendance Policies Consideration of identifying training requirements Consideration of reflective or lessons learned action. A decision that no action is to be taken. 9.3. If the decision is taken that there should be a disciplinary hearing, a panel will be convened in accordance with the Disciplinary Policy 9.4. If it is decided that a thorough process has been followed, but that no action is to be taken, all evidence collated during the investigation process will be destroyed. This will be communicated to the employee and, if applicable, their representative. 10. Implementation, Monitoring and Review 10.1. Review 10.1.1. The policy will be reviewed every two years or sooner if appropriate in response to exceptional circumstances or relevant changes in legislation or guidance. However, any legislative changes that are enacted and not immediately reflected in amended policy will be deemed to have been automatically incorporated into policy from the date of their enactment. 10.2. Training and Awareness 10.2.1. Various strategies will be used to raise awareness of this policy and staffs and managers responsibilities under the policy. Manager briefings Information on Newslinc. HR news for managers HR Polices intranet page 10.3. Monitoring and Compliance 10.3.1. This Policy is owned by the Director of HR, who will ensure a review of this policy is undertaken every two years. 10 of 10