Disciplinary Policy and Procedure

Introduction
Scope of this Procedure
Delegation
Statutory Officers
Key Principles
Disciplinary procedure
Investigation
The Disciplinary Hearing
Warnings and Penalties
Authority to Dismiss
Appeals
Withdrawal of a Disciplinary Sanction
Criminal Offences
Suspension
Annex A – Misconduct likely to result in disciplinary action

1. Introduction

The aim of the Disciplinary Policy is to help and encourage employees to improve, achieve and maintain standards of conduct. It also enables management to deal effectively with those employees who do not comply with accepted standards of conduct, behaviour and time-keeping in the workplace. The policy and procedure is designed to operate in a manner which is non-discriminatory and which is fair, consistent and effective. It must also be applied in a timely manner and without undue delay.

All managers have a responsibility for ensuring that employees are made aware of the Disciplinary Policy and Procedure. All employees are to be informed of the standards of conduct and time-keeping expected of them and managers should ensure that these standards are fully understood by those who work for them. Action taken must reflect fully the process detailed in this policy.

Matters relating to or arising under the Disciplinary Policy and Procedure must be treated as confidential at all times by all parties.

2. Scope of this Procedure

This procedure applies to all employees except for Statutory Officers (see section 4 below).

3. Delegation

The Corporate Leadership Team (CLT) are responsible for discipline within their respective Directorates. They may delegate authority for imposition of penalties short of dismissal, e.g. written warnings, to an authorised representative and in such circumstances the relevant CLT member, will ensure they are not directly involved in the disciplinary process up to and including the imposition of penalty short of dismissal. The Chief Executive shall have responsibility to act in place of a CLT Member in circumstances where a CLT Member is not able to operate the Policy.

4. Statutory Officers

No disciplinary action in respect of the Council’s Head of Paid Service, Monitoring Officer or Chief Financial Officer, except action described below, may be taken by the Council, or by a Committee or any other person acting on behalf of the Council, other than in accordance with a recommendation in a report made by the Statutory Committee in compliance with the Local Authorities (Standard Orders) (England) (Amendment) Regulations) 2015.

The action mentioned above is suspension of the Officer for the purpose of investigating the alleged misconduct. Suspension must be on full pay and be for no longer than two months.

5. Key Principles

At each stage of the formal Disciplinary Procedure, the employee has a right to be accompanied by a Trade Union representative or work colleague.

The employee will also be informed in writing of:

• The nature of the complaint or allegation against them; and
• The stage at which the matter is being considered.

The employee will also be reminded that they will be given a full opportunity to state their case and if action is taken, what improvement is required. They will also be reminded of their right of appeal.

Managers and employees should make every effort to attend meetings or interviews relating to the application of the Disciplinary Procedure. The employee should make every effort to advise the lead Manager and HR whether they intend to invite a Trade Union Representative to attend with them. Where Management and HR have been informed of this, every effort will be made to liaise with the appropriate representative as to their availability for any meetings. If an individual is unable to attend, they will need to give notice and the reasons why they are unable to attend. The meeting will then be re-scheduled to a mutually convenient time. Unless the reasons are exceptional, the re-arranged meeting must take place within 5 working days. However, where an employee fails to attend such meetings more than once without compelling reasons, then meetings may be held in the employee’s absence. Where this measure is invoked, the employee will be informed of this in writing.

Those responsible for making arrangements under the Disciplinary Policy and Procedure must ensure that any necessary, reasonable adjustments required by the employee or others attending have been addressed. This may relate to disability or to the requirements of religious beliefs.

Should an employee have an objection to the person or persons appointed to investigate or hold meetings in connection with the disciplinary matter they must raise this objection in writing, clearly stating the reasons to Human Resources. Such objection must be made within two working days ^[note1] of the notification about the matter under investigation being brought to their attention.

The nature of the disciplinary action taken will be determined according to the nature and seriousness of the alleged misconduct and a dispassionate assessment of the facts based on the balance of probabilities that the employee committed the misconduct in question, i.e. if it is considered that the occurrence of the event was more likely than not. . Where misconduct is established and the sanction is a warning then subsequent misconduct within the period of the warning may result in further and potentially more serious action which may ultimately result in dismissal. However, no employee will be dismissed for a first instance of misconduct, but summary dismissal may occur where gross misconduct is established. Employees have a right of appeal against any disciplinary warning or sanction.

This Disciplinary Policy and Procedure will not apply to any employee who is in their period of probation. Also, any proposed application of this policy to a Trade Union representatives must be the subject of prior consultation with Human Resources / senior management who will notify a senior full-time official of the Trade Union concerned.

Should an employee raise a complaint under the WFDC’s Grievance Policy, or any other related policy, whilst the subject of action under the Disciplinary Policy and Procedure and the complaint relates directly or indirectly to the matter under investigation, then action under the Disciplinary Policy may be adjourned whilst an enquiry into the complaint is carried out. If the grievance or complaint is rejected or found to have no bearing on the matter being investigated under the Disciplinary Policy, then the disciplinary proceedings will continue from the point at which they were adjourned.

Data relating to the application of this Policy and Procedure will be held and destroyed in accordance with the provisions of the Data Protection Act 1998 and any WFDC policy which derives from that Act.

This procedure will not discriminate, either directly or indirectly, on the grounds of any of the protected characteristics as outlined in the Equality Act 2010.

This policy and procedure conforms to or exceeds the minimum requirements of relevant legislation and the ACAS Code of Practice. The Code of Practice can be accessed through the following link: http://www.acas.org.uk/media/pdf/f/m/Acas-Code-of-Practice-1-on-disciplinary-and-grievance-procedures.pdf

Whilst the code does not amount to legislation it is essentially statutory guidance which is enforceable to the extent that failure to comply, by either party, may lead to an automatic increase or decrease in the amount of any compensation awarded.

This policy and procedure will be reviewed periodically giving due consideration to any legislative changes.

6. DISCIPLINARY PROCEDURE

The purpose of the Disciplinary Procedure is the achievement of positive improvements by employees where shortcomings or failures are identified. Any failure to attain required standards will be brought to the attention of the employee concerned at the earliest opportunity wherever possible via day to day management interventions as detailed below. The attention of managers is, however, drawn to the Key Principles where the employee whose performance or conduct has given rise to concern is a Trade Union representative or is a new employee still within their probationary period.

1. Informal - Day to Day Management Interventions

The formal procedure should not be used where the lapse in conduct can reasonably be said to be minor and an isolated instance. Such matters should be addressed promptly by managers by way of an informal advisory discussion. The objective will be to ensure the employee recognises and accepts their shortcomings, offer encouragement and help to improve and secure a commitment to do so. A note of the discussion should be made and kept confidential by the manager for reference purposes and may be used if failings continue. Notes of discussion will be signed by the employee and a copy sent to HR.

Examples where the above may be appropriate include (but are not limited to): infrequent lateness, carelessness (unless instances put people or property at risk), minor insensitive behaviour toward colleagues. The manager should explain clearly what actions or behaviour is unacceptable and make it clear that if the required improvement does not take place, consideration will necessarily be given to the use of the Formal Procedure.

Depending on the misconduct a management instruction may be issued. This instruction will clearly outline the required standard expected of conduct/behaviour. The management instruction should also advise that it will be retained on the individual’s personal file for a period of six months and may be taken into consideration in any formal process.

2. Formal Procedure

The Formal Procedure will be applied where an employee does not respond appropriately or adequately to informal action or the manager considers that the breach of conduct that is believed to have occurred is too serious to be dealt with through normal day to day management. Examples of behaviour that may constitute misconduct resulting in disciplinary action are set out at Annex A, as are examples of behaviour which may constitute gross misconduct. In using the Formal Procedure and determining whether the employee has committed ‘misconduct’ or ‘gross misconduct’, no disciplinary penalty will be imposed until the case has been carefully investigated and it is concluded on the balance of probability that the employee committed the misconduct in question, i.e. if it is considered that the occurrence of the event was more likely than not

In any formal meeting held under this procedure, including appeals, the employee has the right to be accompanied by a fellow worker or trade union representative of their choice. The employee should let the person organising the meeting know who will be accompanying them, if anyone, in advance of the meeting. If the companion is unavailable a request for an alternative date can be made provided it is within 5 working days.

The employee’s companion will be allowed to make representations and ask questions, but will not be allowed to answer questions on their behalf.

7. Investigation

Before disciplinary proceedings can take place, an impartial investigation must be undertaken to collect information relating to the allegations and to determine whether the case should proceed to a disciplinary hearing. In some cases this will require the holding of an investigatory meeting with the employee and their representative (if desired) before proceeding to any disciplinary hearing. In other cases, the investigatory stage will be the collation of evidence by the employer for the use at any disciplinary hearing. An Investigating Officer will be appointed by the relevant line manager. The Investigating Officer must meet the following criteria:

• Be independent and have no connection to the matter under investigation;
• Have experience in conducting investigations or have received training in conducting investigations and is provided with any necessary support from Human Resources;
• Be able to undertake the investigation and provide a report, drawing reasonable conclusions but should not speculate or make recommendations as to appropriate disciplinary penalties, to be considered as soon as possible. In situations where there is particular complexity or non-availability of key interviewees, up to 10 working days will be granted. The report should be submitted to the relevant line manager within 15 working days of the original letter notifying of investigation. If the timescales cannot be met the Investigating Officer should notify the Line Manager of reason for delay.

In exceptional circumstances where unreasonable time delays occur and/or unjustifiable processes arise during the investigation, HR will notify appropriate CLT member who may reallocate the case to a different investigating officer.

At the point at which any decision is taken to launch a formal investigation the relevant line manager will appoint an Investigating Officer, notify HR and outline the terms of reference for the investigation. Notification to the employee(s) concerned should be within 5 working days of the Investigating Officer being assigned. The employee should be notified in writing, outlining details of the investigation meeting, the alleged misconduct providing 3 clear working days notice and advising of the right to representation.

Upon receipt of the Investigating Officer’s report, the relevant line manager must decide what action, if any, should be taken. Three courses of action are available:

• There is no case to answer. In such circumstances, the employee concerned must be told immediately should that be the case;
• That the matter can be resolved through guidance, counselling or further training;
• That there is a case to answer and that a disciplinary hearing requires to be convened.

It is important to note that any managers/ officers involved with disciplinary procedures should allocate the time to the process, ensuring the procedure is completed in a timely manner within the timescales outlined.

8. The Disciplinary Hearing

Before the disciplinary hearing, the employee will be advised in writing of the purpose of the meeting and details of the complaint or allegation being considered, covering all issues to be discussed. The individual will be given a minimum of 3 working days notice of the disciplinary meeting. If the individual’s representative or work colleague is not available to attend on the date proposed, an alternative date within 5 working days will be offered. Where the employee wishes to be represented they should advise HR to facilitate release of a representative. Note: This meeting will normally only be re-arranged once, except in exceptional circumstances. The hearing should normally be held within 10 working days of receipt of the Investigating Officer’s report.

Should either party wish to call any witnesses to the disciplinary meeting, they must give at least one working days’ notice to the Disciplinary Panel and have full responsibility for arranging the attendance of these witnesses.

Either party may present evidence including details of previous relevant warnings, witness statements, call witnesses and have the opportunity to ask questions. An adjournment must be held during which the Disciplinary Panel will review the evidence presented and consider what action, if any, is to be taken. Where possible, parties involved will be verbally informed of the outcome immediately after the adjournment.

The employee will be advised in writing of the outcome of the disciplinary hearing within 3 working days unless a longer period is specified at the conclusion of the disciplinary hearing and the manager will have to provide justification of this. If disciplinary action is taken, the employee will be informed of the required improvements which are necessary and if applicable, details of timescales for achievement, the duration of the warning and the consequence of a failure to achieve the required improvement. The letter must include the date of the disciplinary hearing, the reason for issuing the warning as well as details of any sanctions which may be imposed. It should also include the names of all those present. The right of appeal will also be included.

9. Warnings and Penalties

The outcome of the disciplinary meeting will fall into one of the following categories:

• No case to answer
• The employee is required to attend counselling or retraining
• Written Warning
• Final Written Warning
• Dismissal

The sanctions below may be applied as follows:

• Written Warning: If the issue is serious a written warning will be issued. This will be live for 12 months from the date of the disciplinary hearing.

• Final Written Warning: If the issue is even more serious or if there is a still an active written warning in place and insufficient improvement has been made or further misconduct occurs, a final written warning will normally be issued. A final written warning will normally be live for 18 months from the date of the disciplinary hearing.

• Dismissal with Notice: If within 18 months of the issue of a Final Written Warning, further misconduct occurs or insufficient improvement has been made, the employee will normally be dismissed with notice. The employee will be provided with written reasons for dismissal, the date on which the employment will terminate, their entitlement to pay, and the right of appeal. WFDC reserves the right to make a payment in lieu of notice.

• Summary Dismissal: Where behaviour or misconduct is sufficiently serious and constitutes gross misconduct, the employee will normally be summarily dismissed i.e. without notice. In exceptional cases, an alternative sanction will be applied. The employee will be provided with written reasons for dismissal, the date on which the employment will terminate and the right of appeal.

Expiry of Warnings

A record of any disciplinary sanction will be placed on the employee’s personal file. A sanction will be considered to be spent at the end of the 12 or 18 month period. Managers should take HR advice about whether the spent sanction can be used in any future disciplinary preceedings.

10. Authority to Dismiss

No dismissal may take place without the involvement of a member of the Corporate Leadership Team.

In cases where the system of written warnings has been followed and exhausted, but it is alleged that the employee’s conduct has failed to improve, a further disciplinary meeting must be convened if it is the intention to consider dismissal.

The appointment and dismissal of Head of Paid Service and Chief Officers will only be dealt with in accordance with Council’s employment procedural rules as set out in its constitution.

11. Appeals

Any employee who receives a disciplinary warning, other sanction or notice of dismissal has the right of appeal. Appeals must be lodged in writing with Human Resources (contact point will be specified in the letter of notification) within 5 working days of the date of the written notice of the sanction. This period may be extended only in exceptional circumstances. The notice of appeal must state the grounds of the appeal.

Appeals will be heard within reasonable time of the receipt of the notice of appeal by a more senior manager than the manager taking the action in the first instance. All appeal panels will include a Senior Manager / representative of Human Resources.

Appeals against dismissal (other than for employees under probation) will be heard by the Appointment and Appeals Panel. The employee or his/her representative must appeal, in writing, setting out the reason for the appeal to their CLT member, within 10 working days of first receiving the dismissal decision (verbal or written).

The decision of the Appeal Hearing is final.

12. Withdrawal of a Disciplinary Sanction

Where a disciplinary sanction is withdrawn the employee will receive any pay or other benefits they would have received had the action not been taken. If he/she is reinstated after dismissal, continuity of employment will not be broken and all other employment rights accrued will remain unaffected. Where a disciplinary sanction is withdrawn any written references to the original outcome, including written warnings, are to be removed from the personal file and must not be referred to or taken into account in any subsequent proceedings.

13. Criminal Offences

Disciplinary action should not be taken automatically against an employee because he / she has been arrested, charged or convicted of a criminal offence, as the matters may not be work-related and may have no relevance or impact within the workplace. Each case must be carefully considered by managers according to the particular circumstances, including the Council’s code of conduct.

Disciplinary action may be considered in circumstances where, for example, the employee has been convicted and the nature of the conviction or sentence or both:

• Detrimental impact to WFDC or it’s reputation and/or;

• Makes the individual unsuitable for continued employment given the nature of what WFDC do or due to the nature of the employee’s role;

Should disciplinary action be progressed, the normal investigative policy and procedure of investigation is to be followed to address the issue, as described in the Policy and Procedure.

Where an employee is unable to attend work because they are under arrest or remanded in custody, disciplinary action should not be commenced as the employee may ultimately be found to be innocent. The position should be addressed by consideration of special or unpaid leave until the position is clarified. This won’t apply in all cases and advice from HR should be sought.

14. Suspension

Suspension is not in itself regarded as a disciplinary action and does not involve any prejudgement, or imply that any misconduct has taken place. It is a neutral act to enable an investigation of the allegations made. A short period of suspension with full pay may be helpful or necessary, although it should only be imposed after careful consideration. It should also be kept under review and brought to an end as quickly as possible.

In cases of alleged gross misconduct or when other circumstances dictate that it is inappropriate for the employee to remain at the normal place of work, the relevant manager will consider whether suspension is appropriate in the circumstances. Where it is found there is a case to answer, a formal disciplinary meeting will be convened. Examples of circumstances that may warrant suspension include: fighting or violence between colleagues, alleged criminal offences or sensitive situations e.g. alleged sexual assault.

An employee suspended from duty will be given written confirmation of the suspension and the reason for this action. Whilst on suspension, an employee must remain contactable and must be available to attend any investigation / disciplinary meeting during normal working hours, unless mutually agreed otherwise. An employee who is suspended from duty shall, throughout the period of suspension, continue to receive full pay.

If suspended an employee will be given a named contact to provide any support and advice during the suspension period. Whilst an employee is on suspension, they should refrain where possible from communicating with colleagues on work related matters and not attempt to contact colleagues connected to the case except for Trade Union representative, work colleague who is to accompany them at any subsequent meeting, (if proven that there is a case to answer) or their line manager.

15. Annex A – Misconduct likely to result in disciplinary action

When conduct is unsatisfactory, this is usually referred to as ‘misconduct’ and can vary in its degree of seriousness. Where an incident is very serious it is known as ‘gross misconduct’ and one incident can be sufficient to warrant dismissal. The following list illustrates behaviour likely to constitute misconduct and gross misconduct, but it is neither exclusive nor exhaustive and there may be other matters, which are sufficiently serious to warrant inclusion.

Misconduct

Misconduct is defined as behaviour which, in the view of WFDC, would not normally destroy the relationship of trust between employer and employee; however, the behaviour is serious enough to warrant action short of dismissal. The following list illustrates conduct likely to amount to misconduct, but again this list is neither exclusive nor exhaustive:

• absenteeism and lateness e.g. frequent late arrival at work; failure to comply with requirements to notify sickness absence; unauthorised absence from the workplace;
• dishonesty e.g. making unauthorised private phone calls, sending personal mail at WFDC's expense;
• failure to carry out the normal duties of the post;
• unauthorised copying of copyright or licensed material e.g. software;
• unreasonable or unacceptable conduct e.g. abusive language or behaviour;
• misuse of facilities, loss, damage or misuse of WFDC property or equipment through willfulness, negligence or carelessness;
• accepting significant gifts (eg. a series of presents) or hospitality from contractors, service users, service providers or members of the public without authorisation;
• breaches of health and safety;
• private activities during working hours;
• inappropriate use of social media
• incurring any motoring offences whilst on WFDC business; and
• abuse of the e-mail and / or Internet systems.

The distinction between misconduct and gross misconduct is often a matter of degree and some of the examples under misconduct may be of such an extreme nature that they amount to gross misconduct. Alternatively, there may be instances when examples demonstrated under Gross Misconduct, depending upon all of the circumstances, may amount to misconduct.

Gross Misconduct

Gross misconduct is defined as behaviour, which in the view of WFDC fundamentally destroys the trust between employer and employee and thereby warrants immediate dismissal. The following list illustrates conduct likely to amount to gross misconduct, but this list is neither exclusive nor exhaustive:

• theft or misappropriation or malicious damage to property of WFDC, fellow employees, service users or providers;
• falsifying records or expenses claims which result in gain to the individual e.g. registers, committee reports, documents, time sheets, car expenses, overtime, flexitime, sickness claims;
• the threat of or actual physical violence towards colleagues, service users, service providers or other members of the public;
• refusal to obey a lawful and reasonable instruction of a manager or supervisor;
• discriminatory behaviour relating to sexual orientation, race, gender, age disability, religion or belief against other employees, service users and providers or members of the public. WFDC operates a zero tolerance approach;
• fraudulent or false claims of harassment or victimisation;
• bribing or attempting to bribe another individual, or personally taking or knowingly allowing another person to take a bribe;
• serious negligence which causes substantial loss, damage or injury;
• unauthorised use of WFDC vehicles, materials, equipment, facilities or labour for private purposes and / or personal gain;
• driving whilst using a mobile phone;
• bringing the Council into disrepute;
• incapability as a result of being under the influence of alcohol or illegal drugs at work;
• breach of WFDC regulations e.g. financial regulations, data protection, confidentiality of personal records;
• breach of health and safety regulations that pose a risk to employees, members of the public or property;
• unauthorised deliberate access to information held by WFDC whether held on electronic or manual systems;
• unauthorised disclosure of information classified as confidential by WFDC;
• downloading inappropriate information from the internet e.g. pornography; and
• improper use of position as a WFDC employee for personal gain

[Note1] Definition of working days = Monday to Friday, excluding Bank Holidays