Section D.2 (Page 1)

DISCIPLINARY PROCEDURE

Introduction

It is recognised by the City Council that discipline is necessary for the efficient provision of its services and for the health and safety at work of all its employees. In order to provide a fair and effective method for dealing with unsatisfactory conduct and performance the following procedure will be applied in all instances where management regard it to be warranted. This procedure applies only in cases of unsatisfactory conduct or performance. Separate arrangements exist to deal with cases of sickness absence.

For ease of reference the procedure is set out in seven sections:

Pg
Section 1 - Application: sets out the underlying principles governing the use of the procedure. / 2
Section 2 - Disciplinary Investigation: details the action that must be taken where there is a suspicion of misconduct or poor performance before proceeding with a disciplinary hearing. / 3
Section 3 - FormalDisciplinary Hearing: details the procedure to be followed when following a disciplinary investigation it is considered that there is a case for the employee to answer. / 5
Sections 4 -Disciplinary Action: sets out the disciplinary actions that may be taken following a disciplinary hearing under the Formal Disciplinary Procedure. / 7
Section 5 – Recording of Warnings: sets out the length of time that warnings remain ‘live’ / 8
Section 6 - Appeals: sets out the procedure for appeals. / 9
Section7 - Disciplinary Rules: sets out definitions of gross misconduct and misconduct and gives examples of each. / 11
  1. Application

1.1The procedure applies to employees of the City Council on permanent or temporary contracts other than casual staff and school-employed staff.

1.2The procedure also applies to an employee undergoing probationary service who is alleged to have committed an offence of misconduct or gross misconduct (but not where performance or capability are the issue).

1.3This procedure is to be operated in conjunction with the `Management Guide to the Disciplinary Procedure' which is issued to all Chief Officers, Assistant Directors and Service Managers. Copies of the guide have also been provided to principal trade union representatives. Any employee is entitled to view the guide on request to their Service Manager.

1.4At every stage in the procedure the employee will be advised of the nature of the complaint against them in writing and will be given the opportunity to state their case before any decision is made.

1.5The employee has a right to be accompanied by a trade union representative, a representative of the REC, or work colleague at every stage of the procedure. These will be the only categories of representatives allowed. There is no right to be represented by a solicitor except where the City council uses a solicitor to present a case or assist in the presentation of a case. The employee should be advised of this right as soon as a disciplinary investigation is established.

1.6No employee can be dismissed for a first breach of discipline except in the case of gross misconduct.

1.7No disciplinary action will be taken against an accredited union steward until the case has been discussed with the appropriate full-time official. The union steward will also be given the opportunity to be represented by a full-time official, of the appropriate union, at any subsequent investigatory interviews and the disciplinary hearing if one is convened. Where a union steward is suspended, his/her full-time official will be informed as soon as possible by the Disciplining Officer. The suspension of a union representative is a serious step and should normally only be undertaken after consulting Corporate HR.

1.8Where gross misconduct is alleged or suspected an employee may be suspended (on full pay) pending further investigations and, where necessary, the disciplinary hearing. Suspension is not a form of disciplinary action. In the event of an employee not being suspended when suspected of gross misconduct, the City Council shall retain the right to dismiss that employee if gross misconduct is found to have occurred.

  1. Disciplinary Investigation

2.1Where a matter arises which is suspected or believed to constitute misconduct which may warrant disciplinary action in accordance with this procedure, it must be investigated promptly and adequately before proceeding with disciplinary action.

2.2Dependant upon the particular circumstances of each case, the Senior Manager (third tier and above) shall appoint a senior officer, the `Investigating Officer', to conduct the investigation. Only in exceptional circumstances should Departmental HR Officers be used as Investigating Officers.

2.3The employee suspected of the alleged misconduct must be interviewed as part of the investigation (unless they are prevented from doing so by good reason) and be given the opportunity to respond to the allegation. The employee must be advised that it is an investigatory interview and not a disciplinary interview. The employee has the right to be accompanied by a trade union representative or work colleague. The employee will be given a minimum of two working days notice in writing of the investigatory interview and be advised of his or her right of representation. The written notification will indicate the matters to be investigated.

2.4If the matter to be investigated is considered to involve gross misconduct the employee may be immediately suspended from work on full pay while the investigation proceeds. Similarly, if during the course of an investigation the Investigating Officer is of the view that gross misconduct may have occurred the employee may be suspended. Any decision to suspend an employee will normally be taken by a first or second tier officer but must be taken by an officer no lower than third tier level (or equivalent) provided that such an officer is available or on call. Any decision to suspend will be confirmed in writing (including the reason for the suspension) by the Chief Officer or Assistant Director within two working days of the suspension taking effect. A decision to suspend is a precautionary action and not a disciplinary action. The employee should be asked whether they wish a copy of the letter of suspension to be sent to their union steward. A copy will also be sent to Chair of the Personnel and Customer Care Committee.

2.5On completion of the investigation, the Investigating Officer will prepare a report for the `Disciplining Officer', who will be responsible for determining whether or not to proceed with the formal disciplinary procedure. The Disciplining Officer shall be a senior manager. (In cases which may result in dismissal, the Disciplining Officer shall be a first or second tier officer.) The report should not contain any recommendation and will form the basis of fact at any subsequent disciplinary hearing.

2.6On receipt of the investigating officer's report if the Disciplining Officer considers that, on the balance of probabilities, there is a case for the employee to answer, the formal disciplinary procedure will be instigated.

2.7If the Disciplining Officer considers that there is no case for the employee to answer, then s/he will write to the employee and advise them that no formal disciplinary action will be taken.

  1. Formal Disciplinary Hearing

3.1Where the Disciplining Officer considers that there is a case for the employee to answer a disciplinary hearing will be arranged.

3.2The employee will be given a minimum of three working days' advance notice in writing of the hearing; told the purpose of it, with the nature of the alleged misconduct being outlined; and invited to attend together with their trade union representative or fellow employee of their choice.

If during the course of the investigation statements have been obtained from witnesses (including any who will not be attending the hearing), copies will be given to the employee or their representative not less than three working days in advance of the hearing. (See Management Guide regarding disclosure of documentary evidence). The Disciplining Officer will determine whether witnesses should be called in person to the hearing.

Any deletions from witnesses’ statements which are necessary to preserve reasonable anonymity will be kept to a minimum (see Management Guide).

Postponements of hearings for up to 14 days from the date of the original hearing may be requested by the union representative and will not unreasonably be refused.

3.3The hearing will be conducted by the Disciplining Officer. The Disciplining Officer will be advised and guided by a HR Officer who will also be in attendance. Where the Disciplining Officer considers the circumstances of the case warrant it, a Training and Equality Officer will also be present to give advice and guidance to the Disciplining Officer.

3.4The Investigating Officer will not be party to the decision making process but will be asked to present the supporting facts and material. The employee, their representative, the Disciplining Officer and the HR Officer (and Training and Equality Officer if present) will be entitled to question the Investigating Officer and any witnesses who may attend the hearing to give their account of the matter. The employee, and/or his or her representative, will be entitled to give any explanation they wish, and may call any witnesses where there is a discrepancy over the evidence, and may be questioned by the Disciplining Officer and the HR Officer (and Training and Equality Officer if present).

3.5The Disciplining Officer may adjourn the hearing at any stage where necessary and if requested by the employee or their representative. The reason for and duration of the adjournment must be clearly stated. An adjournment must always take place before the Disciplining Officer announces his/her decision. The Disciplining Officer with the HR Officer will deliberate in private, only recalling the employee and/or witnesses to clear points of uncertainty on evidence already given. If recall is necessary, the employee and his/her representative must return even if the Disciplining Officer wishes to clarify the evidence of a witness.

Where the Disciplining Officer has decided to dismiss, the Corporate Head of Human Resources must be consulted before the decision is communicated to the employee (if the Head of Human Resources is not available within a reasonable period of time, a nominated officer from Corporate HR should be consulted).

3.6Following an adjournment the Disciplining Officer will reconvene the hearing as soon as possible (or at any rate within three working days) and announce the decision and the disciplinary action, if any, to be taken. The Disciplining Officer will also give the employee an explanation for that action and explain the employee's right of appeal. All these details will then be confirmed in writing to the employee within three working days of the hearing.

  1. Disciplinary Action

4.1The Disciplining Officer may decide that no disciplinary action is necessary.

4.2Alternatively, the Disciplining Officer may take any of the following disciplinary actions after having regard to all the prevailing circumstances of each particular case, subject to the principle that an employee may not be dismissed for a first breach of discipline except in the case of gross misconduct.

4.3Written Warning - for cases where an employee's work, conduct or omission is such as to warrant disciplinary action a formal written warning should be issued. A written warning may be used for an offence after a first written warning has been given and is still extant (see also 4.4 below).

The warning must set out the nature of the offence and inform the employee that further misconduct is liable to result in further disciplinary action of a more serious nature. The employee must be advised of their right of appeal and that the appeal must be registered with the appropriate Chief Officer within ten working days of receipt of the written decision.

4.4Final Written Warning - for serious offences which might justify summary dismissal for gross misconduct, but where management decides that a lesser penalty is appropriate in the circumstances, or for an offence after a first written warning has been given and is extant, or where an employee's work, conduct or omission is such as to warrant a final written warning. The final warning must set out the nature of the offence and inform the employee that further misconduct could render them liable to dismissal. The employee must be advised of their right of appeal and that the appeal must be registered with the appropriate Chief Officer within ten working days of receipt of the written decision.

4.5Other Disciplinary Action - other reasonable and appropriate action (e.g. temporary or permanent transfer to a more junior post or another site, etc.) may be imposed in conjunction with a final written warning subject to the circumstances of each particular case. The employee must be advised of their right of appeal and that the appeal must be registered with the appropriate Chief Officer within ten working days of receipt of the written decision.

4.6Dismissal With Notice - for cases where a final written warning is still extant and conduct or performance does not improve. The employee must be advised of their right of appeal in writing and that the appeal must be registered with the Director of Corporate Services within ten working days of receipt of the written notice of dismissal.

4.7Dismissal Without Notice - for cases where gross misconduct has been established on the balance of probabilities. The employee must be advised of their right of appeal and that the appeal must be registered with the Director of Corporate Services within ten working days of receipt of the written notice of dismissal.

Note: The Assistant Chief Executive (Personnel, Training and Equality) must be consulted before any dismissal takes place.

5.Recording of Warnings

5.1All formal warnings will be recorded on the employee's personal file. The duration of the warnings, subject to satisfactory conduct and/or performance during that period are as follows:

(a)Written warning - six months

(b) Final warning - one year

5.2Warnings should cease to be `live' following the specified period, subject to satisfactory conduct and/or performance and should be disregarded for future disciplinary purposes (conduct or performance will be regarded as satisfactory where no new disciplinary offence has been committed or where there are no continuing concerns about performance within the specific period of the warning. Further disciplinary action in respect of such offences or concerns will require a further hearing). They should be removed from an employee's personal file on the date they become spent. [There may, however, be occasions where an employee's conduct is satisfactory throughout the period the warning is in force but lapses soon after. Where a pattern emerges and there is reasonable evidence of abuse, the employee's disciplinary record can then be borne in mind and the duration of any further warning or final warning may be given for a longer period than indicated at (a) and (b) above].

6.Appeals

6.1Employees have the right of appeal against disciplinary action for conduct or performance.

6.2Any appeal against disciplinary action must be registered within ten working days of receipt of the written decision.

6.3Appeals against disciplinary action other than dismissal should be made to the appropriate Chief Officer, who will hear the appeal. (In cases where the initial decision has been taken by the Chief Officer, the appeal should be lodged with the Corporate Head of HR who will arrange for another Chief Officer to hear the appeal.)

6.4Appeals against dismissal for conduct or performance should be made to the Director of Corporate Services who will convene an appeals panel to hear the case. (The panel will be serviced by the Corporate Services Department. See Section D.3 for the procedure for hearing appeals against dismissal).

Procedure for Appeals against Disciplinary Action Short of Dismissal

6.5This procedure applies where a final written warning or other disciplinary action short of dismissal or a written warning has been taken.

(a)The employee may appeal against the disciplinary action within ten working days of receipt of the written decision by notifying their Chief Officer in writing of the grounds for their appeal.

(b)The appeal will be arranged as soon as possible after receipt of the employee's written notice of appeal. The appellant will be given notice in writing at least five working days in advance of the time and place of the hearing. At the appeal hearing the disciplining officer will attend in order to answer any questions which may arise. The employee, or their representative, will be entitled to ask any questions and be given full opportunity to further state their case.

(c)An appeal will not take the form of a re-hearing. It will take the form of a review of the Disciplining Officer's decision. The review will consider:

1)Any procedural errors - but only any that were so substantial as to undermine the fairness of the decision;

2)Any errors of fact which were fundamental to the decision;

3)Whether the decision was unreasonable and should not be allowed to stand.

(d)At the completion of the hearing, the Chief Officer will adjourn to consider his/her decision. The Chief Officer and the HR Officer will deliberate in private only recalling the employee and/or witnesses to clear points of uncertainty on evidence already given.

If recall is necessary, the employee and his/her representative must return even if the Chief Officer wishes to clarify the evidence of a witness.