Shropshire Council

Employee disciplinary policy

Contents

1.  Introduction

1.1.  Shropshire Council expects lawful, appropriate and acceptable standards of work and behaviour whilst on Shropshire Council business (either on or off Council premises) which support the efficient operation of the Council's business and the safety and security of its staff, property and its service users.

1.2.  This Policy and Procedure applies equally to all employees of Shropshire Council with the exception of posts that form part of a school establishment, and is designed to assist and encourage all employees  to achieve and maintain acceptable standards of conduct and behaviour.

1.3.  Shropshire Council reserves the right to discharge without exhausting the full procedure for employees with less than twelve months service if their level of conduct within Shropshire Council is not satisfactory.

1.4.  The Capability Procedure should be followed in situations where the work performance is not meeting the required standard due to the employee’s lack of skills and/or aptitude to do the job or because their general work performance has deteriorated. Where, however, an employee’s performance is believed to be unsatisfactory because of a deliberate failure or refusal on their part to perform at the required standard then this will be treated as a disciplinary offence to be dealt with under this policy.

1.5.  The aims of this procedure are as follows:

  • To maintain a professional approach to investigating and resolving unacceptable conduct or behaviour issues through an agreed process.
  • Ensure that all disciplinary matters are dealt with in accordance with the procedure as set out in this policy, as well as those set out in employment law.
  • Deal with all disciplinary matters promptly.
  • Ensure all the facts are gathered during the investigation phase.
  • Be firm and fair, ensuring that action taken is reasonable in the circumstances.
  • Be consistent - apply the same rules and considerations to each case.
  • Consider each case on its merit.
  • Ensure that, where the facts are in dispute, no disciplinary penalty is imposed until the case has been carefully investigated.
  • Review the policy on an regular basis.

2.  Behaviour outside of work

2.1.  The Council does not seek to dictate how employees conduct themselves in their personal lives outside of work.  However, unlawful, anti-social or other conduct by employees which may jeopardise the Council’s reputation or position will be dealt with through the disciplinary procedure.  When an employee makes comments public on any social media site (including Facebook, Twitter, Bebo etc), or emails they abandon any rights to have their comments treated as private and therefore can abandon any right to freedom of expression and to have their comments treated as private under the European Convention on Human Rights.  The Council’s interference with the right to respect for private and family life, and the right to freedom of expression can in some circumstances be justified (for example in protecting reputation or confidential information).

2.2.  The Council will treat ‘electronic behaviour’ in the same way they would treat ‘non-electronic behaviour’ and any found breaches of the council’s policies and procedures will be dealt with under the Council’s Disciplinary Policy.

  • Defamation – employees posting or sending damaging or libellous comments about an organisation or their products/services or publishing sensitive commercial data
  • Employees divulging protected personal data – for example giving away details of salary, political or religious beliefs or disciplinary records.
  • Cyber-Bullying, bullying, harassment and victimisation conducted via social networking channels – often using blogs, social networking sites or e-mails to post photographs or offensive or threatening comments about colleagues or other work contacts.

3.  Responsibilities

Line managers / Supervisors

3.1  Ensuring that employees are aware of the expected standards of conduct, the Shropshire Council code of conduct for employees, the Disciplinary Policy and of local rules or regulations specific to the job or service area.  An example of this is Health Care and Professions Council standards with respect to registration and fitness to practice of Social Workers and Occupational Therapists.

3.1.2  It is a question of Management judgment as to whether an employee’s conduct requires the use of the formal disciplinary procedure.

3.1.3  It is a Managers responsibility to discuss any minor matters of concern with their employees on a day to day basis outside of the disciplinary procedure. The manager should offer positive advice, assistance and guidance to encourage employees to achieve and maintain proper standards of conduct and behaviour. Managers will be required to make notes of the date, circumstances and advice given, a give a copy of the notes to the employee. The employee will be informed that there is a risk of formal disciplinary proceedings should the employee fail to meet any requirements for future behaviour. This does not however constitute part of the formal disciplinary process and is not recorded on the employee’s personal file.

Employees

3.2.1    Employees are responsible for adering to the Shropshire Council Code of Conduct, the Disciplinary policy and any local rules and regulations including any reasonable management instructions.

3.2.2    Social workers and Occupational Therapists are also responsible for adhering to Health Care and Professions Councils standards with respect to registration and fitness to practice.

3.3.3  Employees are responsible for cooperating with disciplinary investigations, as deemed appropriate to the circumstances.

Trade Union Representatives

3.4.  This disciplinary procedure has been agreed by Shropshire Council, Policy Forum, EJCC and the following trade unions:- UNISON, GMB and UNITE.

3.5.  Trade Union Representatives are responsible for advising and supporting their members during disciplinary processes.

4.  Principles

4.1.  No disciplinary action will be taken against an employee unless and until the case has been fully investigated.

4.2.  At each and every stage of the process employees will be encouraged, as is their right, to be accompanied by a representative of a recognised Trade Union or work colleague. However, prior to the formal hearing, this will just be as support, not as representation. HR are able to advise further.

4.3.  During the investigation it may be appropriate to suspend an employee from work.  If this is necessary, the suspension will be with full contractual pay and approved by the Group Manager/Director/Corporate Head.

4.4.  Dismissal for a first breach of discipline will only occur in the case of gross misconduct.  The sanction will be dismissal without notice or payment in lieu of notice, and this sanction may also arise in any breach of conduct that is classed as gross misconduct.

4.5.  Employees have the right to appeal against any disciplinary sanction imposed.

4.6.  The procedure may be commenced at any stage appropriate to the employee’s alleged misconduct / behaviour.

5.  The procedure

5.1.  Except where indicated, this Policy and Procedure is not contractual and does not confer any legal rights on employees. The following procedure outlines the process which will be followed in most instances.  However Shropshire Council reserves the right to adapt and amend the process according to the circumstances of the disciplinary issue.

5.2.  If the Council decides that disciplinary action is required then the following sanctions may apply:

  • Stage 1 - First Written Warning
  • Stage 2 - Final Written Warning
  • Stage 3 - Dismissal

5.3.  In deciding what action to impose, the Council will consider the nature of the offence, the extent to which its concerns may already have been brought to the employee's attention outside the formal disciplinary process, the employee’s disciplinary record, any mitigating circumstances, the seriousness of the impact of the offence to the Council, the seriousness of any impact of the offence on service users, the likelihood of effective corrective action by the employee and any other factors that the Council considers appropriate.

Stage 1 - First Written Warning

5.4.  For more serious offences the employee will be given a first written warning, which will set out the duration of the warning, nature of the offence and the likely consequences of any further offences.

Stage 2 - Final Written Warning

5.5.  For very serious offences falling short of gross misconduct or if the employee has committed a further offence of a similar nature during the period covered by a previous first written warning, the employee will be given a final written warning, which will set out the duration of the warning, nature of the offence and the likely consequences of any further offences.

Stage 3 - Dismissal

5.6.  For offences of gross misconduct or gross negligence or if the employee has committed a further offence of the same nature during the period covered by a final written warning then the employee may be dismissed.  In the case of gross misconduct or gross negligence, dismissal will generally be without notice and notice pay at the discretion of the Group Manager, Corporate Head or Area Director.

Warnings

5.7.  A first written warning will remain in force for a period of 6 months from the date on which it was given and a final warning will remain in force for a period of 12 months unless stated otherwise.

5.8.  If, for any reason, an employee is absence from work for a period of one month or more, then the duration of any warning will be automatically extended by the amount of time that they are absent.

5.9.  In determining whether an employee has breached a warning, the determining date is when the further disciplinary offence was committed - not when it was discovered or when any subsequent disciplinary hearing took place.

Misconduct

5.10.  The following list provides examples of conduct and behaviour which are regarded as misconduct include (but are not limited to):

  • first breach of Council rules, code of conduct, policies or procedures, e.g. flexible working, caring about sickness, smoking at work
  • failure or refusal to obey a reasonable instruction without good reason
  • maliciously raising a grievance or making an allegation against another employee
  • breach of health & safety rules

 

HCPC – Fitness to Practise

 

5.11     Where an employee’s roles is identified as a protected title and subject to HCPC registration and regulation of their fitness to practice to work, for example Social Worker & Occupational Therapist’s.

 

It should be noted that fitness to practise is not just about professional performance it also includes acts by a registrant which may affect public protection, or confidence in the profession or the regulatory process. This may include matters not directly related to professional practice. 

 

We will consider every case individually however further to HCPC guidance in respect of fitness to practice and examples of conduct and behavior which might impact a registrant’s fitness to practice and/or may also be considered  under the disciplinary process include (but are not limited to):-

 

  • dishonesty, fraud, or abuse of trust;
  • Exploitation of a vulnerable person;
  • Failure to respect service user’s rights to make choices about their own care;
  • Failure to deal with health problems which may affect the safety of service users;
  • Hiding of mistakes or attempts to block an investigation
  • Improper relationship with a service user;
  • Reckless or deliberate harmful acts;
  • Serious or persistent failure to meet professional standards including HCPC standards
  • Involvement in sexual misconduct or indecency (including any involvement in child pornography);
  • Substance abuse or misuse problem;
  • Violent or displayed threatening behavior; or
  • Other, equally serious, activities which affect public confidence in their profession.

 

Additional information and guidance is available at www.hcpc-uk.org , and Appendix 4 – Flow charts, Identifying concerns of fitness to practice to what happens next.

 

Gross-Misconduct

5.12  The following list provides examples of conduct and behaviour which are regarded as gross misconduct include (but are not limited to):

  • words or acts that breach the Councils Code of Conduct, equal opportunities including any form of unlawful discrimination or victimisation
  • theft, fraud, deliberate falsification of records or documents, abuse of the hours of work policy, for the purpose of personal gain.
  • fighting, physical violence, assault on nother person.
  • unauthorised absence
  • abandoning duty without notification
  • willful, malicious or deliberate damage to Council premises or property.
  • incapability through alcohol and/or illicit drugs or being found in possession of the same.
  • serious negligence or breach of health and safety rules which may cause unacceptable loss, damage or injury.
  • unauthorised access to computer records and/or misuse of the computer, email or internet facilities
  • malicious transmitting of confidential information pertaining to the organisation
  • deliberate negligence which causes or may cause unacceptable loss, damage or injury.
  • racial and sexual abuse or bullying and harassment.
  • failure to disclose a pecuniary interest which prejudices a decision or action taken by or on behalf of the Council or other bodies
  • Conviction of a criminal offence which adversely affects the reputation of the Council and its interests.(Subject to the nature of the offence)

5.13  Individuals who are accused of gross misconduct may be suspended from work on full pay, dependent on circumstances and the element of risk. Normally this will be for the shortest period reasonably possible and will be reviewed if the suspension is likely to continue beyond ten working days.

5.14  If Shropshire Council is satisfied that gross misconduct has occurred, the individual may be summarily dismissed without notice or payment in lieu of notice at the discretion of the Group Manager, Corporate Head or Area Director.

Investigation Stage

5.15  The disciplinary investigation will be initiated by a Hearing Officer who will appoint an Investigating Officer, who reports to them. In the majority of cases, it will be the Hearing Officer who will conduct the disciplinary hearing. An employee or representative will be informed of who the Hearing Officer will be and will be able to raise any concerns about this at any point during the process.

5.16  Where a formal hearing relates to a care issue involving an allegation by a service user, then it should be heard by a panel of three managers, the chair of the panel being the Hearing Officer. Further guidance on the format of the Disciplinary Panels is available from the Human Resources Advice and Projects Team.

5.17  Investigations will be thorough in all cases and also timely.

5.18  The Investigating Officer will make a thorough investigation of the areas of concern relating to the employee.  They will collect and collate evidence, including interviewing and taking statements from relevant parties and preparing this evidence for possible presentation at a formal hearing. Whereby the evidence is an inappropriate image(s), then that image should not be included in the investigation, and replaced by a statement confirming that the image(s) had been accessed and are deemed inappropriate, and made available for viewing only by the employee and/or their representative. The Investigating Officer will prepare a written report for the Hearing Officer setting out the facts arising from the investigation, including signed statements from the interviewees.

5.19  The Hearing Officer will receive the report from the Investigating Officer and decide whether a formal hearing is necessary.  The Hearing Officer will be responsible for managing the disciplinary procedure and, if deemed necessary, conducting the formal hearing and will have delegated authority to deal with any outcome of the procedure, outside of dismissal which is limited to those officers who have authority to dismiss (Appendix 2).

5.20  The employee will be notified in writing by the Hearing Officer that their conduct or performance is being investigated, along with the reasons why. They will also be told the name of the appointed Investigating Officer. There will be occasions however when such an approach would not be appropriate e.g. when the confidentiality of the investigation is a relevant factor. Further guidance in such cases is available from the Human Resources Advice and Projects Team.

5.21  Whereby an individual has requested anonymity during an investigation the Council will endeavor to protect their identity. It must, however, be appreciated that the investigation process may reveal the source of the information and a statement by the employee may be required as part of the evidence.

5.22  The Council may suspend the employee on full pay, or look to redeploy on a temporary basis while the matter is being investigated. Suspension during an investigation is not disciplinary action or pre-judgment of the issue.  The period of the suspension shall be for the duration of the investigation or such other period as the Council may reasonably decide. The Council will seek to ensure that suspension with pay is for the shortest period reasonably possible and consistent with completion of the investigation and any disciplinary action. The suspension position will be reviewed by the Investigating Officer after a period of 10 working days, and subsequently reviewed on a monthly basis and the employee on suspension informed in writing of the progress of the case.

5.23  If the Council decides that suspension is not required in any case, this has no bearing upon the view which the Council may ultimately take of the seriousness of the offence or the sanction which it decides to impose.

5.24  A suspended employee will be assigned a Support Officer.

Disciplinary Hearing

5.25  Upon completion of the Investigation, where the Hearing Officer has reason to believe that an employee has committed a disciplinary offence, he/she will be informed in writing of the allegations against him/her and will be invited to attend a disciplinary hearing as follows:

  • The employee will be informed that they are required to attend a disciplinary meeting. This will be normally be confirmed in writing with a minimum of five working days to arrange for representation.
  • The nature of the alleged disciplinary issue should be communicated and the employee advised of their right of representation.  If the employee does not wish to be represented then the appropriate Trade Union Representative should be informed of their decision by the employee.
  • Notes and papers regarding the investigation should be made available to the employee and their representative at least two working days prior to the disciplinary hearing. Please note that if during the Investigation process a witness requested anonymity the Council will endeavour to protect the individual’s identity, however, this cannot be guaranteed.
  • A record of the Hearing will be taken by a note-taker at the meeting.
  • The Hearing Officer will outline the purpose of the disciplinary meeting and invite the Investigating Officer to present their report. The employee will be given the opportunity to respond, as will the Union representative present. The employee may be asked to reply to related questions and confirm final responses.
  •  The Hearing Officer should then adjourn the hearing to consider the details and the individual’s responses. The Human Resources representative will remain with the Hearing Officer
  • Wherever possible following the adjournment the Hearing Officer will inform the employee of his/her decision, which may result in a disciplinary sanction. However, should the Hearing Officer require more time to consider a sanction, then the employee will receive a response in writing within two working days from the date of the hearing.
  • The Human Resources representative should be responsible for writing the notes of the meeting and for distributing them as soon as practicable.
  • The Hearing Officer should then issue a formal letter to the individual detailing the decision made and any relevant actions.
  • The employee and the Union Representative will then have five working days to consider the decision, and make an appeal in writing to the Appeal Hearing Officer.

Attendance at Disciplinary Hearings

5.26  The employee must make all reasonable efforts to attend any disciplinary hearing.  If the employee fails to attend without proper excuse, and is unable to substitute a proposed alternative date, within 5 working days, then the Council may proceed with the hearing in the employees absence and draw such inferences as are appropriate from the material in its possession and from his/her absence.

5.27  If an employee has a disability or their fluency in English is restricted and in either case their ability to represent themselves during the disciplinary process may be affected, the employee should notify HR immediately.  The Council will then consider what if any steps it can take to ensure that the employee is not unreasonably disadvantaged during the disciplinary process.

Representation

5.28  If the employee is asked to attend a disciplinary hearing (or any meeting at which the possible termination of your employment is to be discussed), the employee has a right to be accompanied by a fellow work colleague or trade union representative of their choice.

5.29  The Council will arrange a date for the meeting to take place.   If the employee's chosen representative cannot attend on the date proposed, the employee can offer an alternative time and date so long as it is reasonable and falls within 5 working days after the date proposed by the Council.

5.30  The employee's chosen representative will be able to address the hearing, put forward the employee's case, sum it up, respond to any views expressed at the hearing and confer with the employee.

5.31  The Council does not regard it as a reasonable request for an employee to be accompanied by another worker against whom the same disciplinary allegations have been raised or who is otherwise involved in the subject matter of the allegations.

Record Keeping & Confidentiality

5.32  Records will be kept of alleged breaches of disciplinary rules and of all subsequent developments. In addition, written notes will be kept of all formal interviews under each stage of the disciplinary action and, where applicable, appeals procedures.

5.33  The employee's refusal to sign interview notes will be recorded but will not interfere with the progress of the disciplinary / appeals procedure.

5.34  If the employee proposes amendments to disciplinary/appeals notes then the Council may incorporate those amendments if it considers that they are accurate and reflect what took place in the hearing. The Council is under no obligation to incorporate amendments nor is it required to agree minutes with the employee or their representative.

5.35  The records and contents of investigations /meetings should remain strictly private and confidential and be kept in accordance with the Data Protection Act 1988.  All records will be removed from personal files and destroyed once the 6/12 month period has elapsed.

Sickness During Disciplinary Proceedings

5.36  If an employee goes off sick at any time between the Council discovering that they may have committed a disciplinary offence and the conclusion of any disciplinary process (including any appeal), and that based on the balance of probability that the employee used sickness absence as a method to delay the process, then the Council reserve the right to withhold sick pay in its absolute discretion until the disciplinary process is completed.

Application of Policy to Trade Union Representatives

5.37  This procedure applies in full to trade union representatives. However, no formal action should be taken until the circumstances of the case have been notified to the full-time official of the union concerned after discussion with his/her Branch Secretary of the union concerned.  No notification will be made, however, unless the employee has first been asked if they agree to this and their consent has been given.

6.  Notifying the Health Care Professions Council (HCPC)

Where a Social Worker or Occupational Therapist is suspended or dismissed on grounds of misconduct or professional capability, his/her Head of Service must ensure that the Health Care Professions Council (HCPC) is notified.

7.  Appeals

7.1.  An employee shall have a right of appeal against any disciplinary action taken and should be notified of this right in the written confirmation of the action taken.

7.2.  In all cases, an intention to appeal should be notified in writing to the Appeal Hearing Officer concerned within ten working days (Monday - Friday excluding bank holidays) of receipt of the letter from the Hearing Officer confirming the disciplinary action that has been taken. The intention to appeal should include the reason for the appeal and the points in dispute.

7.3.  Appeals against written warning/final written warnings should be heard by an Appeal Hearing Officer (who was not involved in the original decision) or their deputy Appeals against dismissal will usually be heard by an Appeal Committee comprising three members.

7.4.  For appeals against dismissal, HR will have responsibility for convening the Committee and appointing a HR Adviser to the Appeal.  The Appeal Hearing will be arranged where possible during the employees notice period and within a maximum period of 12 weeks from the date of appeal. For appeals against a written warning/final written warning the Appeal Hearing Officer will be responsible for appointing a HR Adviser.  Any officer who previously addressed the hearing prior to the appeal will not be appointed as Adviser at the appeal stage.

7.5.  Appeals will be by way of a re-hearing the entire case.  Wherever possible, evidence which has been cited at the earlier hearings, and which is not disputed, should be agreed and circulated in advance of the appeal.

Procedure to be followed prior to Appeal

7.6.  Upon receiving notification of the intention to appeal, the HR Adviser will write to the employee giving them at least ten days notice of the time and date of the hearing.  A copy of this procedure will be attached to the letter.  The employee should be informed of the right to be accompanied by a trade union representative or work colleague.

7.7.  The employee will be asked to acknowledge receipt of the letter notifying them of the appeal date.  The employee should inform the Adviser in writing whether it is their intention to be represented and if so, the name and position of the person who will represent them. The employee or their representative should also notify the Adviser, at least five working days in advance of the hearing, of the names of any witnesses it is their intention to call.  At least five working days before the appeal, it is the responsibility of the employee or the representative to copy to the Adviser any new documentation which they wish to introduce into the proceedings.   The Adviser will copy this information to the Appeal Committee / Appeal Hearing Officer and to the Council's Presenting Officer.

7.8.  The Council's Presenting Officer will notify the Adviser, at least five working days in advance of the hearing, of the names of any witnesses they intend to call.  At least five working days before the appeal, the Presenting Officer will copy any new documentation to the Adviser which they wish to introduce into the proceedings.  The Adviser will copy this information to the Appeal Committee / Appeal Hearing Officer and to the employee or their representative.

Procedure to be followed at Appeal Hearings

7.9.  The Chair of the Appeal Committee (Appeal Hearing Officer for appeals against warnings) will introduce those present, and confirm the status and purpose of the hearing, and the procedure to be followed.

7.10.  The Chair will inform all parties that the hearing may be adjourned at any stage at the request of either side, depending on the nature of the request.

7.11.  The Presenting Officer will present a report setting out the evidence leading to the decision taken.  Previous evidence agreed between the parties prior to the Appeal hearing and given in advance to the Appeal Committee will not be represented.

7.12.  The Presenting Officer for both sides will call such witnesses as may be necessary. However, any witnesses whose evidence is not challenged will not be called.

7.13.  The employee and the representative may ask questions of any witnesses called.

7.14.  The Presenting Officer or their adviser may re-examine the witnesses.

7.15.  The employee or the representative will make a submission as to why the decision taken should not be upheld.

7.16.  The Presenting Officer or their adviser may ask questions of the witnesses and of the employee.

7.17.  The employee or representative may re-examine the witnesses.

7.18.  Members of the Appeals Committee / Appeal Hearing Officer and their adviser may ask questions of the parties or witnesses at any stage but will seek to confine questioning until after questioning of the witnesses by the parties is completed. The witnesses will leave once all questioning is completed.

7.19.  The Presenting Officer will be invited to make a closing statement.

7.20.  The employee or the representative will be invited to make a closing statement.

7.21.  The Appeal Hearing Officer / Chair will ask all parties (with the exception of the adviser) to leave the room whilst they / the Appeals Committee deliberates.  At this point the Chair / Appeal Hearing Officer will inform both parties when a decision will be reached and how this will be communicated to them.

7.22.  The decision may be communicated to the parties orally on the day of the hearing. Alternatively, it may be necessary to notify the parties in writing at a later stage.

7.23.  The Appeal Committee / Appeal Hearing Officer may recall witnesses or call for further evidence on specific points.  If this occurs after the hearing has taken place, both parties should be recalled and advised.

7.24.  Witnesses will leave the hearing after giving their evidence and answering any questions put to them.  The Presenting Officer will however be entitled to be accompanied throughout the hearing by a senior officer from the appellant’s employing department, after they have given any evidence to the hearing.

Procedure to be followed After an Appeal

7.25.  Following the re-hearing, the Adviser to the Appeal Committee / Appeal Hearing Officer will write to the employee, notifying them of appeal decision (even if they were orally told of the decision on the day itself), and the reasons for it.  A second copy should be sent to the employee who should be asked to sign and return this copy as an acknowledgement. A third copy of the letter will also be sent to the employee for their use.

7.26.  The letter should also make it clear that the decision is the final stage of the appeals procedure.