PRIVATE AND CONFIDENTIALRepresentation - [2b] Hearing checklist and notes

MEETING CHECKLIST AND NOTES

Name:

Meeting/Hearing:

Day, date, time:

Location/venue:

Before – Prepare

Get it in writing RE:

  • Representation/accompaniment
  • Meeting details – reason, purpose, policy being used, persons to be present/role
  • Allegations/issues

Review the skills required

  • People, social and interpersonal skills
  • Communication skills
  • Advocacy/representation skills
  • Presentation skills

Gather the facts and information

  • Review case – obtain copies of statements, responses and evidence
  • Review, know and print off (for reference/quoting):

> Benchmarks

> Acas, DTI/Business Link, TUC, Union

> Legal, professional and organisational systems, guidelines and guides

> Rights, responsibilities and obligations

- Legal, professional, organisational

- Employment law/requirements

- Fair trial, appeal, adjourn, fair and equal treatment, dignity and respect

- Whistleblowing, not to suffer harm/detriment, human rights

> Pre-agreed discipline, authority, regulations, penalties/sanctions and limitations

  • Review previous/similar circumstances, cases and outcomes:

> Decisions, rulings, sanctions, resolution, action plans, management, follow-up

Decide who needs to be present

Make practical arrangements/secure provision

Strategy and N/ECG

Formulate case presentation and Qs

Trial run – rehearse, rehearse, rehearse!!

Mindset

Relax – time out

During – On the day/s

Keep own notes

Do not: Be distracted/derailed

Allow to change the focus onto you

Allow to introduce new information/people [unless significant/will impact]

Allow to raise matters previous/should’ve been dealt with at the time [unless significant/will impact]

Scrutinize ALL evidence and information

Reasons for Hearing/Meeting:

Private preparatory time before meeting

  • Confer
  • Clarify roles and strategy/(N)ECG
  • Last minute checks
  • Mindset
  • Attitude/behaviour check
  • Lookwho is floating around/nearby

Miscellaneous pre-meeting notes/observations:

Enter approximate timings

 : Did/volunteeredP : Had to be prompted/requestedR : RefusedA : AgreedD : Disagreed

Location:PlannedActual

START time: PlannedActual

TIME / Take seats
  • Seating plan
  • Note exists/windows
  • Note selections/choices made

Notes:
TIME / HR/Panel – Introductions: people present, in attendance, apologies, absent and role
  • Lead person/chair and panel – Who, authority, powers, training, experience
  • Notes/minutes – Who, impartiality/independence, do nothing else (concentrate)
Training, skills, experience, style/method, TEST
  • Others – Who, position, location, role and why
  • Encourage representation/accompaniment – insist if case is (potentially) serious
  • Confirm role of accompanying person
  • Thank you for:
  • Does anyone have any conflict of interest(s) or vested interest(s) in any outcomes, or any hidden agenda(s) they wish to declare?
  • Ensure all persons required are present that could/will affect outcomes
  • Ensure fit for interview – postpone if not/under influence
  • Witnesses outside (NO collusion), call in as required

Notes:

Persons present:

[Inits] / Name / Post/Location / Role
Employee
Union/Accompaniment
Panel (Chair)
Panel (HR)
Panel (Manager)
Panel
Minutes/admin
Management side
Management side
In attendance (observer)
TIME / HR – Housekeeping
  • Type of meeting and policy meeting being held/conducted under
  • Purpose
  • Whether disciplinary action/dismissal could follow
  • Currently active/in place/initiated/invoked: Systems, sanctions, arrangements
Reasons
Ensure have copies
  • Organisational philosophies, values, principles:
> Safety culture, Governance, IWL/W-LB
> Raising concerns/whistle-blowing
> Zero tolerance – V, B/H, intimidation, reprisals
  • Rights
  • Welfare and wellbeing – stress, support
  • Process (how meeting will be ordered)
  • Minutes: Copy at end
Time limit for typed version
Process for reviewing/amending/agreeing
  • Facilities/resources – private room, refreshments, toilets, smoking
  • Phones, pagers/bleeps, interruptions
  • Ground rules and meeting principles
(attitude, behaviour, how meeting will be conducted):
> Confidentiality
> Look at positives, “can do”, compromise, negotiate
> Dialogue: Contribution, expression, questions, interruptions
> Emotions: Acknowledge highly emotive and stressful situation
Let off steam
Time out (breather, regain composure)
Adjourn if necessary and reconvene (but do not avoid issues)
Acceptable/ok, unacceptable/not ok
Zero tolerance – abuse, threats, unacceptable conduct/interactions
Notes:
TIME / YOU – Witnesses: no collusion/contamination/contact outside meeting
Notes:
YOU – Investigation AND Investigating team:
TIME /
  • Who is in the investigating team (name; role; location) and Support team (Eg admin)

Answer:
TIME /
  • Who is the investigating team accountable to?

Answer:
TIME /
  • What Training; skills; experience does the investigating team have:
> Investigations; situation-specific; RCA + IDT
> Natural justice + wider issues/hidden agenda patterns
Answer:
TIME / Who selected the investigating team and when?
Answer:
TIME / Who is managing +/- supervising the investigating and supporting team?
Answer:
TIME / What is the remit/term(s) of reference, when were they set and by whom?
Answer:
TIME / Confirm the impartiality and independence of investigation team
Answer:
TIME / Confirm the investigation team will hear all sides and give adequate time
Answer:
TIME / Confirm the investigation process so far – When; Who; What; How
Answer:
TIME / What are the expected timescales for completion of investigation/s and next step?
Answer:
TIME / YOU – External agencies contacted by them
Eg Police, Customs, CSCI/Reg 37 form, POVA]
WHO
WHEN
BY WHOM
WHO AUTHORISED/INSTRUCTED
COPIES OF DOCUMENTATION

If they have contacted external agencies WITHOUT reasonable evidence/primary investigation – breach of Human Rights Act (HRA) + defamation + Data Protection Act (confidentiality)

YOU – Identify any concerns or problems so far:
TIME /
  • Letters sent not replied to – go through content

Answer:
TIME /
  • Letters sent/received/not received – content, timings, authors

Answer:
TIME /
  • Procedural, rights, not being heard

Answer:
TIME /
  • Conflicts of interest, bias, evidence tampering, victimisation, intimidation

Answer:
TIME /
  • Vital people not present

Answer:
TIME /
  • Hostile location or environment

Answer:
TIME /
  • Allegations and decisions

Answer:
TIME /
  • Evidence/statements

Answer:
TIME /
  • Informant – Who; when; how
Personal safety concerns
Stalking/harassment (28.02.2009 letters to HR and Debbie)
Answer:
TIME /
  • Questionable agenda time line:

Answer:
TIME /
  • Employer duty to protect from bullying/harassment under the Protection from Harassment Act 1997:

Answer:
TIME /
  • Event >

Answer:
TIME / HR/Panel – List allegations
1. As per letter:Y / N
Notes:
2. As per letter:Y / N
Notes:
3. As per letter:Y / N
Notes:
TIME / MANAGEMENT – STATEMENT OF CASE (response)
Notes:
See notes taken
YOU – STATEMENT OF CASE (response)
TIME / CURRENT SITUATION:
  • Praise/positives first
  • Employees are only as good as: Informed, equipped, supported, monitored
Invested in
Allowed/permitted
Leader, mentor, coach, role model
  • Why do they think employee is unhappy?
  • Is it acceptable to…(list unacceptable events)
  • Is everyone happy with what has taken place?
  • Is anyone concerned about what has taken place?
  • Have those involved followed a) legislation, b) organisational procedure, c) research/BP?
  • Does anyone consider that ? has not received fair treatment/natural justice?
  • Where at:
As letter of (date) states
Issues unresolved after (time)
This grievance is thus grave – if unreasonably unheard or unresolved, will result in external intervention via either Eg Regulator, Acas or ET
Raising of concerns (whistleblowing) not tolerated, for which ? has suffered detriment contrary to law and NHS policy
?’s human rights have been breached: Article – Reason/s
? has been denied the right to natural justice – Acas p108 (reasons)
Acas’ Core principles of reasonable behaviour breached (reasons)
Confidentiality has been breached on [?] occasions
? has incurred unnecessary, preventable costs and effect as a direct result of his/her employer’s actions
? H&S and common law Duty of Care has been breached (reasons)
Express terms of employment broken (reasons)
Implied terms of employment contract broken (reasons)
Failed to protect [Name] from mistreatment
Failed to ensure a healthy and functional working environment
Failed to undertake risk assessments and proactively intervene where there is significant dysfunction
There are significant issues regarding leadership/management and the working environment which require intervention
  • ?’s exposure by her employer to negative experiences and significant breaches, and his/her employer’s failure to reasonably address issues, is breaching the implied terms of trust and confidence, and thus contract of employment – making employment increasingly untenable, and could be viewed by an ET as ? dismissal [RISK OF SAYING THIS]

Notes:
TIME / OBJECTIVES:
  • Successfully resolve long-standing issues and stop further deterioration/escalation of the current situation
  • Stop this unnecessary suspension and the costs that are being unnecessarily incurred both to ? (financially and detrimentally to health, wellbeing and reputation) and the company/?, which will ultimately benefit ? (company/organisation), patients/residents, colleagues and ?
  • That [organization] will walk the talk regarding legal, regulatory, professional, organisational and team values, obligations and responsibilities
  • That ? will not suffer any detriment (directly or indirectly; by any persons; at any point hereon) for raising the information she will at this meeting

Notes:
TIME / We trust you will:
  • Fully listen to, explore and understand the issues, make impartial decisions, and reasonably address issues satisfactorily
  • Appropriately hold systems and people to account for issues and failures
  • Ensure natural justice and an impartial and independent investigation
  • As per Governance requirements and arrangements:
Clarify organisational changes, learning, dissemination:
- Now
- Ongoing and long-term
- Monitoring
Provide documentary evidence of same: Who, What, Where, When, How, Why
  • Act with integrity by:
Provide a written acknowledgement of the issues raised
Provide a written apology detailing specific failures, errors and mistreatment that has affected Sarah
  • Reimburse unnecessary costs incurred in preparing this case
  • On return to work (RTW):
Consult with ? and provide a written plan (Who will, do what, when, where, how)
Identify what the company’s plans are to:
- Reintegrate; Revalidate
- Update; Re-skill – not as part of PDP
- Monitor, support, review, protect, raise future concerns
Notes:
TIME / GUIDING PRINCIPLES, BENCHMARKS, STANDARDS, MEASURES, CODES
(internal AND external)
Law – H&S; PIDA; B&H; RIDDOR; Case law; employment law; negligence; HRA
Employment law – Acas, DTI, IiP, TUC, Union, express/implied terms; ERA 1996
Regulatory – GSCC; NMC (Codes; A-Z advice); Care Homes – CSCI; NMS; CH Regs
Acas – Core principles of reasonable behaviour; Code of practice
NHS/DoH – Policies/initiatives; Manager’s Code of Practice
Organisational/corporate
Civil – Duty of Care
DEFINITIONS/GLOSSARY of terminology used
Rights
Not to suffer detriment or retaliation from any employee for the information to be provided and discussed, and that the information will be kept confidential within the DPA. Should any of this be breached, I reserve the legal right to seek redress for any consequences, harm or detriment
For an employee’s contract of employment (written and implied) not to be breached by either side?
A fair trial based on ‘natural justice’?
  • Innocent until proven otherwise
  • Informed of allegations and supporting evidence
  • Situation fully and carefully investigated
  • Able to present whole of case and be heard
  • Impartial decisions/actions made
  • Proper, impartial appeal
Receive fair, equal and reasonable treatment in employment matters?
Certain standards of health, safety and employee welfare in the workplace?
Ensure zero tolerance and dignity at work?
Not to be subjected to inhumane or degrading treatment, or torture?
Not to be defamed verbally, in writing, or in any other format?
H&S/Risk
HSE; RCA; IDT
Performance
Previous history
Recruitment, JD, induction, T&D, supervision/appraisals, codes, discipline, capability process
Whistleblowing
Employees speak up when things are not going right, and are able to do so without retaliation or detriment – vital to safety, improvement and excellence?
Suspension/Exclusion
Acas’s Core principles of reasonable behaviour, used by ET’s?
Need to retain a highly skilled workforce?
Properly manage discipline and grievances?
Competently manage suspensions/exclusions?
Implied contract to provide wor
Investigations
Undertake any investigations thoroughly, impartially, effectively and efficiently?
Make informed decisions based on sound and detailed knowledge, according to objective fact and not subjectivity or covert need?
Childcare needs
Improve working lives (IWL) and facilitate a work-life balance (W-LB)?
Avoid and eliminate sex discrimination?
Leadership/management and Workplace
ALL levels of management observe the Code of Conduct for NHS Managers?
Notes:
TIME / SOLUTIONS (how going to get where need to be – route map – and stay there LT):
  • SMILE + SMARTER + SAFE: Suitable, appropriate, feasible, enduring (sustainable)
  • Solution-focused, action-orientated, win-win, dignified (SAWD), sustainable, prevent repeat
  • Empathic, compassionate, not adversarial
  • Mutual interests/benefits  rights/law  power
  • What they are going to do about it (remedy; action plan, learning, changes) (now and sustained)
  • What you need to happen/change
  • What your suggestions for resolution are – practical solutions/alternatives

Notes:
YOUR RESPONSE/S TO ALLEGATIONS

NB: Unfavourable/detrimental/incriminating – “Avoid” (unless asked) or cushion

TIME /
  • Procedural failures/omissions/issues – Deviate/non-compliance
Conflict/s of interest; bias; collusion; tampering
Answer:
TIME /
  • Informant:1) Who 2) When informed + how 3) When were they first aware
IDENTIFY: Credibility, bias, motive, personal/hidden agenda
Answer:
TIME /
  • Their allegation/s: ? at suspension became ? in letter
Any changes/new to the ? in letter?[Yes = formally object +/- time out]
When did they first become aware and how
Why didn’t they approach informally
> Bolam Test (reasonable manager)
> Personal agenda
Answer:
TIME /
  • Establish burden of proof (who) + standard of proof (level)

Answer:
Burden –
Standard –
TIME /
  • What will be their action in dealing with malicious, false/misleading, discriminatory, personal/hidden agendas?

Answer:
TIME /
  • Background: ?’s history
a) As a person – personality, character, reputation, reliability
b) As an employee – discipline, contributions, performance
Situational context
Events preceding/leading to situation
> Questionable time line (see ?) – B&H, victimisation, intimidation
People; Systems; Resources/Equipment; Practices; Paradigms
Working environment/conditions: Physical
Wider issues/agenda
Scape-goating
Seagull management
B&H, victimisation, intimidation
Silence/eliminate
?’s efforts to manage, address, rectify, resolve, remedy
Answer:
TIME /
  • Investigation best practice – going to use the Incident Decision Tree (IDT) and Root Cause Analysis (RCA)

Answer:
TIME /
  • Define complicit: “Participating in a wrongful act”

Answer:
Allegation 1: >
TIME / 1.Please provide your documentary evidence/physical proof of:
  • WHEN you 1stbecame aware of this allegation?
  • WHAT Sarah has allegedly done – specifically?
  • WHEN Sarah has allegedly done this?
  • WHERE Sarah has allegedly done this?
  • WHO Sarah has allegedly done it with or for, or who has been a witness?
  • HOW Sarah has allegedly done it?
NB Scrutinize ALL evidence – Accuracy; Motive; Agenda
Answer:
  • WHEN:
  • WHAT:
  • WHEN:
  • WHERE:
  • WHO:
  • HOW:

Answer:
TIME / 2.Definition of complicit:
  • “Participating in a wrongful act”
  • INCLUDES knowing and not acting

Answer:
TIME / 3.Please define >
Answer:
TIME / 4.Given the definitions of >
Answer:
TIME / 5.Identify what should have been:
  • Definition
  • Principles, benchmarks, standards, measures, codes (internal AND external)
EMPLOYMENT:Recruitment – interview, JD, person specs, offer letter
Employee Handbook
Induction
Mandatory training – Fire; H&S; Abuse; CPR; M&H (etc)
Training & development
Supervision/appraisal
Performance management
Discipline
CORPORATE/SERVICE and TEAM
CLINICAL
  • Systems
  • EmployER responsibilities and EmployEE responsibilities

Answer:
TIME / 6.What was (reality) – SoC, account, version of events, chain of events, ABC
  • RCA stages (1) – (5): WHAT happened (classify/scope; gather; map)
HOW it happened (ID problems)
WHY it happened (analysis)
  • Context: Situational, team, organisational, personal (facts, actions, inactions, evidence)
Site – environment, equipment, resources
Physical evidence
  • Your evidence and call/cross-examine witnesses and evidence
  • Your culpability, defence + mitigation:
- Efforts to manage, address, rectify, resolve, remedy
- Explanations/reasons
- Antecedents/ABC
- Provocation
- Mal)treatment, actions, abuse, victimisation
- Contributory/inhibiting/barrier factors
- Personal issues (work, home, health, disability, substances)
- Systemic/underlying/real factors (see above)
Answer:
TIME / 7.IDT & RCA:
  • Tests:
1) Deliberate –
2) Physical/Mental Health –
3) Foresight –
4) Substitution (Bolam) –
  • Insight, reflection and experiential learning:
  • Systemic/underlying issues and breaches:

Answer:
TIME / 8.Summary of ALLEGATION 1:
  • Their allegation
  • Their evidence/proof
  • Procedural failures/omissions/issues
  • Background
  • Defined: >
  • Shown that >
  • Proven that in law >
  • Using IDT and RCA:

Answer:
TIME / 9.Identify what you:
  • Agree with/accept as fact
  • Refute/dispute
a)
b)
c) There is an extensive spider’s web of complicity and equal/worse transgressions, and the RGN’s explicitly knowing and not taking action is a possible NMC referral issue
Answer:
FINAL SUMMARY
TIME /
  • Is everyone happy with how ? has been treated prior to and since suspension?

Answer:
TIME /
  • Is anyone concerned about what has taken place?

Answer:
TIME /
  • Have those colleagues and managers involved followed the identified principles, benchmarks, obligations and systems (polices/procedures) relating to the allegations in question?

Answer:
TIME /
  • Mini-summary – we have:
> Identified our objectives
> Established the guiding principles, benchmarks, standards, measures, codes
> Established the burden of proof (who) + standard of proof (level)
> Given a background to ?
> Given a situational context with wider issues and agenda
> Confirmed the allegations made against ?
> Established the employers’ evidence/proof for those allegations
> Clarified definitions of terminology used
> Given a response to the allegations
> Used evidence-based investigatory best practice (the IDT + RCA) to:
a) objectively test 4 areas of ?’s actions
b) identify ?’s insight reflection and experiential learning
c) identify systemic/underlying issues and failures
THUS SHOWING:
Allegation 1: a)
b)
Allegation 2: a)
b)
Allegation 3: a)
b)
All allegations: There is an extensive spider’s web of complicity and equal/worse transgressions, and the RGN’s explicitly knowing and not taking action is a possible NMC referral issue
PLEASE NOTE: The allegations against > have been very serious, and constitute both libellous and slanderous defamation of character, especially as no other staff/employees have been accused of the same
TIME /
  • In considering what decisions/action to take, we ask the investigator/s to take into account (as per Acas and law):
> What you decide to do to ?, the law requires you to do equally to others for their culpability and/or equal conduct
> (internal AND external) Principles, benchmarks, standards, measures, codes
> ?’s history:
a)As a person (personality; character; reputation; reliability
b)Performance/disciplinary record + current warning
c)Service/employment record (contributions; length of service)
> ? is more than willing to:
a)be supported to improve using any systems introduced or upgraded, and
b)attend further training BY A TRAINER TRAINED IN THE SPECIFIC AREA USING TRAINING THAT IS SUITABLE, SUFFICIENT AND EFFECTIVE AND WHICH HAS A PRACTICAL ASSESSMENT PART AS REQUIRED BY LAW AND BEST PRACTICE
> ?’s insight, reflection and experiential learning
> The situational context
a)Situational chronology + time lines
b)Systemic/wider issues, factors, failures, RCA, IDT
c)Working environment/conditions
> ?’s efforts to resolve issues with her manager
> The real gravity of the situation and allegations
> Risk – actual/potential; of repetition
> Organisational and legal rules/guidance + Case law
> Consistency and fairness (similar cases) + non-discriminatory
> Appropriateness and reasonability of decisions and sanctions
> Acas’ Code of Practice + natural justice
  • Ask:F2C - Charter of accountability; empathy/empathise
Would you like/expect > to act/do as you have?
Would you like to be treated as > has/is?
Notes:
TIME / ALL – Questioning/Cross-examination – explore, assess, clarify
  • 1) You (see Witness Questions)2) Opposite side3) Panel
  • Reciprocal, 2-way, open, fair
  • Open discussion
  • NB: Silence (draw out)
  • Ask if there are any health problems/issues – do not mention substance misuse at first
  • “Judgement” criteria
  • Cross examine (question, challenge):
> Informants, witnesses
> Information (facts, evidence)
> Measurement/success criteria
  • Questionable doubt, discredit:
> Spurious, malicious, unfair, bias, conflict of interest
> Irrelevant, unreliable, ambiguous/unclear
> Conjecture: 3rd party, opinion, subjective, unsubstantiated
> Contrary argument, weaknesses, alternatives
> Discrepancies, inconsistencies, inaccuracies – Time, place, people, events, evidence, reasons:
~ Internally – within statement/account
~ Externally – contrary, other people/evidence
> Dishonest, falsification, perjury, body of lies
> Deception, concealment, exaggeration, manipulation
> Confused, suffering from amnesia, charge with imagery
(given to imagination)
  • Extract and stop/refute/claim: Office politics, games, tactics, hidden agendas
Failings, omissions, incompetence, breaches
Negligence (duty, breached, harm/detriment)
Vote of “no confidence”
  • Discuss and explore:
> Reasons; Real/underlying issues (RCA, IDT)
> Mitigation: Antecedents, provocation
Contributory/inhibiting/barrier factors; situational context
> Identify problems and analyse root causes
> Systemic/organisational/team issues
> Personal issues: Work, home, health, disability, substance misuse
> Own conduct/behaviour, contribution, wrongdoing
  • Scrutiny checklist (statements, evidence, witnesses)

Notes:
See notes taken
TIME / HR/Panel or YOU – Brief adjournment at end
  • Evaluate outcomes and situation
  • Review notes/minutes

Notes:
TIME / ALL – Agree; amend; add
Notes:
TIME / ALL – Any further questions/questioning
Notes:
TIME / MANAGEMENT and EMPLOYEE SUMMATIONS
Notes:
  • Employee summation – see earlier/summation checklist/notes
  • Management summation:

TIME / HR/Panel – Sum up so far
  • Facts of case
  • Separate genuine and unacceptable issues – what, why, evidence
  • Identify and praise good, excellent, positive
  • Identify (+/- reprimand) not so good, poor, unacceptable
  • Ask if anything has been missed/not been covered
  • Ask if there is anything further defence wants to add (no clutching at straws)

Notes:

** AFTER THIS, NO NEW INFORMATION CAN BE SUBMITTED **