Principles of

Managing

Misconduct

Page 1 of 10

Principles of Managing Misconduct

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Contents:

1.Introduction and Application …………………………………………Page 3

2.Responsibilities ……………………………………………………… Page 3/4

3.Principles……………………………………………………………..Pages4/5

4.Informal Action – minor lapses in conduct………………………… Page 5

5.Investigation – more serious misconduct or allegations of misconduct………………………………………………………………. Page 5

6.Suspension from Duty – allegations of gross misconduct …………Page 5

7.Formal Disciplinary Action………………………………………………Page 6

8.Right of Appeal…………………………………………………………..Page 6

9.Special Circumstances………………………………………………….Page 7

Grievances lodged during disciplinary action

Formal action against employee who is a trade union representative

Criminal charges or convictions

Financial irregularities

Safeguarding issues

Flowchart – Overview of Managing Misconduct…………………………….. Page 8

Flowchart – Conduct of Disciplinary Hearing………………………………….Page 9

Flowchart – Appeal Process…………………………………………………….Page 10

PRINCIPLES OF MANAGING MISCONDUCT

1.Introduction and Application:

This document sets out the principles and procedures for managing misconduct in a fair and equitable manner. The purpose is to help employees achieve and maintain acceptable standards of conduct. The Employee Code of Conductsets out examples of what constitutes misconduct and gross misconduct.

These principles apply to all employees with the following exceptions:

  • Staff employed to work in schools where, by law, such matters are under the control of the Governing Body.
  • Agency workers - refer to the Principles of Managing AgencyWorkers.
  • Casual workers – refer to the Principles of Managing Casual Workers

Concerns relating to an employee’s performance should be managed in accordance with the Principles of Managing Capability

2.Responsibilities:

Whom / Responsibilities
Employee / Co-operate fully with the investigation and attendinvestigatory meeting(s) as required
Act reasonably and do not cause unnecessary delay
Comply with all conditions of suspension
Attend hearing and, if applicable, appeal hearing
Manager / Take prompt informal action to address minor misconduct
Conduct a fair and reasonable investigation
Where an investigation has been commissioned, oversee and monitor progress ensuring no unnecessary delay
Seek advice from Human Resources as appropriate
On conclusion of the investigation decide what further action,if any, is justified
Manager and HR to produce project plan outlining the time scales for the investigation to be completed.
Where allegation constitutes gross misconduct refer to a Director orAssistant Director or duly authorisedHead of Service for decision to be taken regarding suspension from duty
Review suspension of employees on a regular basis and maintain regular contact
Check availability of Chair/HR for hearing and book venue
Invite employee to hearing, providing details of allegations, evidence to be presented, witnesses (where appropriate) to be called and right to be accompanied
Arrange for witnesses (where appropriate) to attend hearing
Present evidence at hearing and answer questions from Chair and employee or employee’s companion/representative
Commission Human Resources to attend Hearing, if required, where potential outcome may not be dismissal
Attend appeal hearings where required
Chair of Hearing
(must not have had previous direct involvement in matter being considered) / Conduct a fair hearing, ensuring there has been a thoroughinvestigation, the employee is provided with the opportunity to respond and the outcome is reasonable in view of all the circumstances
Commission Human Resources to attend hearing, if required, where potential outcome may not be dismissal
Arrange for a note taker to be present where required
Inform employee of outcome of hearing in writing and confirm right of appeal and copy HR into decision letter
Human Resources / Advise the Chair/Manager/Investigator on the application of the principles to ensure a fair, reasonable and equitableapproach
Attend hearings where potential outcome may be dismissal
Attend hearings where commissioned by the Chair/Manager where potential outcome will not be dismissal
Attend appeal hearings, where required, to advise on management case
Arrange for decision letter to be placed on personnel file and notify Payroll where outcome is dismissal

3.Principles:

The following principles will apply when managing misconduct:

  • Minor lapses in conduct will be managed informally. Where there is no improvement, formal disciplinary action will be taken.
  • All proceedings, whether informal or formal, will, so far as is practicable, remain confidential.
  • Where allegations constitute gross misconduct employees may be suspended on normal contractual pay. The decision to suspend will be taken by a Director or AssistantDirector, or duly authorised Head of Service.
  • Employees have the right to be accompanied at formal stages by a companion who is ideally his/her trade union representative or work colleague. Where the employee is not a trade union member and a work colleague is not appropriate, an alternative companion may be permitted as agreed. Also, where the potential outcome of a hearing may include the Council’s duty to refer to lists held by the Independent Safeguarding Authorityor referral to a Professional Body,an alternative companion may be permitted. Where the choice of thecompanion presents a conflict of interest tothe Councilthe chair reserves the right to request an alternative companion.
  • Although there is no statutory right for an employee to be accompanied at any investigatory meeting this will be permitted where it does not cause unnecessary delay to the investigation.
  • Reasonable adjustments will be considered for employees with a disability, for example, location of hearing and choice of companion, who may be an advocate.
  • No unnecessary delay should occur during the investigation or formal stages. The Council will attempt to reschedule the meeting/hearing,normally on one occasion,in the event of failure to attend or when the companion is not available. The employee may propose a reasonable alternative datethat is within 7 calendar days of the original date. In the event of a further failure to attend, the Council reserves the right to hold the hearing in the employee’s absence and reach any conclusion it deems appropriate after considering the evidence available. In exceptional circumstances, depending on the nature of the offence, the hearing will proceed on the first arranged date.
  • Reference to Human Resources is recommended where formal action is to be taken. HR will attend any disciplinary hearing where the potential outcome is dismissal. The Chair of a hearing may commission HR to attend any hearing where it is considered that HR support is required for complex issues. The outcome of a disciplinary hearing will be notified to Human Resources for recording and monitoring purposes.
  • Any disciplinary action imposed will be proportionate to the severity of the offence and be applied consistently. There must be a reasonably held belief that the employee committed the act in question.
  • Where the investigation has not been able to clearly establish the facts or issues, a decision may be taken on the ‘balance of probabilities’
  • No employee will be dismissed for a first breach of discipline, expect in cases of gross misconduct.
  • Decisions to dismiss will be taken by senior managers graded at Head of Service grade and above, or a duly authorised middle manager.The Chair of the hearing will be at the same level or more senior to the manager presenting the evidence.

4.Informal Action- minor lapses in conduct

Minor lapses in conduct will be managed informally, normally by discussion between the manager and employee. The employee has no right to be accompanied by a companion at informal discussions. The manager should inform the employee of the improvement in conduct that is required and the consequences of further lapses. Notes of the discussionshould be taken and retained in case of need. There is no requirement to confirm thediscussion in writing to the individual as this may constitute formal action.

If no improvement in conduct occurs, formal disciplinary action should be taken. See Section7.

5.Investigation –more serious misconduct or allegations of misconduct

Where more serious misconduct occurs or allegations of misconduct are made, an investigation must take place to establish the facts. On conclusion of the investigation, consideration should be given as to whether any formal disciplinary action is justified. If it is justified, the formal disciplinary process should be followed. See Section 7. Contact Human Resources for guidance on how to conduct an investigation.

The vast majority of Employment Tribunals that result in a successful challenge is because of the inadequacy of the investigation.

6. Suspension from Duty – allegations of gross misconduct

Where allegations constitute gross misconduct the manager should refer the matter to the Assistant Director or Directoror duly authorisedHead of Service for consideration to be given to suspending the employee from duty. –Model - Suspension Letter

7. Formal Disciplinary Action

Where formal disciplinary action is to be taken there are 3 stages:

1.Letter inviting employee to Disciplinary Hearing – 7 calendar days notice should be given of the hearing –Model- Invitation to Disciplinary Hearing Letter

2.The Disciplinary Hearing – see flowchart on page 9

3.Right of Appeal –Model – Misconduct Decision Letter

Potential outcomes from the disciplinary hearing are:

First written warning - for a first offence, employees may be given a written warning setting out the nature of the misconduct and the change in behaviour required. A record of the warning should be kept in the personnel file, but it should be disregarded for disciplinary purposes after 12months. The warning should also inform the employee that a final written warning may be considered if there is any further misconduct.

Final written warning - if the employee has a current warning for misconduct further misconduct may warrant a final written warning. This may also be the case where first offence misconduct is sufficiently serious, but would not justify a dismissal. A record of the warning should be kept in the personnel file, but it should be disregarded for disciplinary purposes after 24 months. The warning should also inform the employee that further misconduct may lead to dismissal.

Dismissal with contractual notice - if the employee has received a final written warning further misconduct may warrant dismissal. The last day of service should be specified.

Dismissal without notice – where the offence constitutes gross misconduct, the employee may be dismissed without notice. This includes first offences that constitute gross misconduct.The last day of service,which will be the date of notification of the decision to dismiss,should be specified.

8.Right of Appeal

Employees have the right to appeal against the decision taken following a disciplinary hearing. If an employee appeals s/he should have valid reasons for doing so and be able to provide evidence that substantiates the grounds for the appeal, which may include:

  • the principles were not followed
  • new evidence directly relating to the disciplinary hearing has come to light
  • the investigation was not conducted fairly – the employee must be able to demonstrate this and provide evidence

The appeal letter stating the grounds of appeal should be submitted to the Assistant Director of Human Resources within 7 calendar days of receiving the written decision.

A panel comprising of a Director or Assistant Director and a Senior Human Resources representative will hear the appeal. The Chair of the appeals panel will confirm the decision in writing,ideally within 7 calendar days of the conclusion of the appeal hearing and the decision is final.

9.Special Circumstances

Grievances lodged during disciplinary action

If a formal grievance is received during disciplinary action an assessment should be made as to whether the complaint will impact on the action being taken. Where it is considered the grievance will not have an impact or change the outcome, the disciplinary action should continue and the grievance managed concurrently in accordance with the Principles of Managing Grievances.

If the grievance has highlighted valid points which need to be considered before further disciplinary action is taken the grievance should be managed in accordance with thePrinciples of Managing Grievances before taking any further disciplinary action.

The decision regarding whether the grievance does or does not impact on the action being taken rests solely with the manager, unless the grievance is against him / her. If the grievance relates to the manager, the next level of management will decide whether the grievance does or does not have an impact on the course of action being taken.

Formal action against employee who is a trade union representative

The branch secretary of the relevant trade union should be informed if formal action is being taken against an employee who is also a trade union representative.

Criminal charges or convictions

Where an employee has been charged with or convicted of a criminal offence an investigation into the facts, as far as is possible, should be carried out and a view taken as to whether the employee’s conduct damages public confidence in the Council or makes the employee unsuitable to carry out their role.

If the conduct warrants disciplinary action it is not necessary to await the outcome of any prosecution before taking fair and reasonable action. However, liaison with the police is necessary in order to ensure that use of evidence in the internal disciplinary hearing does not impact adversely on the police investigation. The police should not be present at any internal investigatory meeting or disciplinary hearing.

Where the nature of the offence may not justify disciplinary action but the employee is not available for work and unable to co-operate with the investigation due to being in custody or on remand, themanager must consider the impact on the service and may take formal disciplinary action on the basis the employee is not available for work. The disciplinary decision will be taken on the information that is available.

Financial irregularities

Where the alleged misconduct relates to financial irregularities the matter must be referred to Internal Audit.

Safeguarding issues

Where the alleged misconduct relates to safeguarding issues the manager must ensure they also comply with the Council’s Multi-agency Safeguarding Policies.

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Principles of Managing Misconduct

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Principles of Managing Misconduct

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Disciplinary Hearing - Flowchart

Appeal Process Flow Chart

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Principles of Managing Misconduct

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