Professional Documents
Culture Documents
Background
1. This procedure was originally devised by a working party made up of
employees and management and chaired by ACAS. It was revised and
amended in 1998 and 2005, taking account of the Dispute Resolution
Regulations and the ACAS Code of Practice on Disciplinary and Grievance
Procedures.
4. Where ‘The Six Steps’ has been used, and there is still no improvement in
performance, managers should consider taking action under either the
Capability or Disciplinary procedure.
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9. An employee will be given a copy of this procedure before any disciplinary hearing
about her/his conduct takes place.
The Head of the Authority’s Paid Service (Chief Executive), Monitoring Officer
and Section 151 Officer who are subject to separate provisions.
12. The procedure does not apply to casual workers, however, care should be taken to
assess whether a worker can truly be regarded as ‘casual’ depending on their
contractual arrangement and their work history. For workers who are truly ‘casual’,
the normal process would be to deal with disciplinary issues carefully but without the
formal procedure and if this is not successful, to stop asking the casual worker to
work and to make other arrangements to cover the work. If, because of the
individual’s working history, it becomes clear that they are not truly ‘casual’, they
should be given a copy of the disciplinary procedure and the procedure should be
followed in the normal way.
14. Given the seriousness of the impact that the Disciplinary procedure can have on
individuals involved, the wider team and to service delivery, timescales should be
strictly adhered to, as far as this is practicable. It is in no-one’s interests for any part
of the process to be delayed for longer than is absolutely essential. Any delays
should be explained and justified to the parties involved.
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Continued failure to reach performance standards
16. In issues of poor performance, the Disciplinary procedure should not be used unless
there is evidence that some fault lies with the employee or that the employee
repeatedly fails to maintain a satisfactory level of performance. It is not envisaged
that the Disciplinary procedure will be used in cases of temporary or isolated
difficulties except where an act of gross misconduct may have been committed (see
paragraphs 23-26).
17. It is in the interest of all concerned that issues involving poor performance are
addressed as quickly as is reasonably practicable. This will usually be undertaken
and recorded as part of normal performance monitoring sessions and appraisal
meetings.
18. If issues which have been discussed during normal performance monitoring
sessions are not addressed adequately, the manager should then use ‘The Six
Steps to the Management of Poor Performance at Work’ which give a clear
framework for addressing performance issues informally.
Misconduct
20. Misconduct could cover any failure to comply with accepted standards of work or
behaviour, for example:
unauthorised absenteeism
persistently poor timekeeping
refusal or failure to obey lawful and proper instructions
failure to follow financial rules and procedures or other formal management
procedures
breach of health and safety regulations
conduct likely to bring the Council into disrepute
bullying, harassment or victimisation
misuse of council time, property, systems or equipment (including IT equipment)
accessing, disclosing or otherwise using confidential information without authority
being incapable of working through misuse of substances
buying, selling or possessing drugs
misuse of official position to gain personal advantage
making complaints which are frivolous, malicious or for personal gain.
22. Breaches of discipline by an employee which are not of a similar nature may be
added together and result in progression through the disciplinary procedure.
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Gross Misconduct
23. Gross misconduct is misconduct serious enough to destroy the employment contract
between Oxfordshire County Council and the employee and which makes any
further working relationship and trust impossible, for example:
actions, omissions or negligence which endanger others
theft in the course of employment
fraud or deliberate falsification of claims and/or records
assault or threatening behaviour at work, including abuse of service users
24. This list is not exhaustive. Where there is an allegation which involves physical or
sexual abuse of children the Child Protection Procedures will be considered first and
action taken accordingly.
25. While an allegation of gross misconduct is being investigated, the employee will
normally to be suspended from work. Suspension may also be necessary when
investigating other serious misconduct (see also paragraphs below).
Suspension
27. In potentially serious breaches of discipline, an employee may be suspended from
duty for the purposes of investigation or for the protection of individuals (see also
paragraph 25). An employee may be suspended on full pay for a period of not
normally more than ten working days. If the investigation is not completed within
this timeframe, the suspension period may be extended, subject to a review after
each 10 day period, with the aim of keeping the period of suspension as short as is
reasonably practical.
28. The authority to suspend employees rests with the Director or his/her named delegate.
29. Suspension is not a disciplinary sanction and the fact that an employee has been
suspended should not be regarded as prejudicial to the case. A manager should
seek advice from HR before suspending an employee if there is any doubt.
Suspension should only be used where there is a real requirement for the employee
to be prevented from attending work. The reason for this is because it is expensive
and makes it very hard for the employee to return to work even when innocent.
Alternatives such as working in another section or taking annual leave should be
considered.
30. An employee should normally be told of their suspension in person by their line
manager, accompanied by their directorate HR Officer. They should also be given a
letter which explains the reason for the suspension, that they are suspended for a
fixed period of time and that the suspension will be kept under review. The letter
should also state that the employee should not return to the workplace until they
have received formal notification.
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31. An appropriate person, normally the line manager (or the line manager’s manager),
should review the suspension in line with the procedure and make regular contact
with an employee who is suspended to avoid feelings of isolation and reduce the
likelihood that the return to work is difficult. This support should continue where
necessary if the employee returns to work, whether or not they have been
exonerated.
* The duration of the disciplinary penalties may vary from these guidelines depending on
the circumstances.
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34. When investigating, factors to be taken into account will be:
What is the alleged breach of discipline?
What are the surrounding circumstances?
What are the consequences of the breach?
The employee’s job and role
The employee’s experience and length of service
The employee’s history and disciplinary record
The evidence of witnesses
Any other evidence that can shed light on the situation, including any records of
how the situation has already been dealt with
Have there been any recent changes to the job or working environment?
Have there been any previous incidents which relate to this one?
Has the employee received appropriate induction, counselling or training
Are there any mitigating circumstances, eg health/disability, domestic problems,
or provocation?
35. The investigating manager should write a report which sets out the alleged breach of
discipline and outlines the evidence gathered during the investigation. This will form
the basis of the management case at the hearing.
37. Once the investigation has been concluded, the evidence should be reviewed to
determine whether:
there is a case to answer
action under the Capability Procedure is more appropriate
there is an alternative to disciplinary action, e.g. more frequent supervision,
additional training
the complaint is serious enough to require a disciplinary hearing.
Handling evidence
38. Hearsay evidence (i.e. evidence which relies on quotation from a third party who
cannot give evidence in person or by a written statement) can be relied on but
should be dealt with very cautiously and, in certain circumstances, little weight
should be given to it.
39. Anonymous evidence should not normally be used. Exceptions to this would be:
where the allegations are serious and can be verified through independent
investigation or
if a potential witness had a real fear, reasonably held, that they would suffer
substantial detriment if they were to sign their statement.
If this situation arose, the County HR Manager should be consulted.
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40. Statements can only be obtained from children under 16 with the agreement of the
parent or guardian, who should be given the opportunity to be present when the
evidence is being collected. There could be an exception here if children are
witnesses to an incident and their version of events needs to be obtained as quickly
as possible before memory fades and before they have discussed it with others. In
this case, if parents cannot be informed immediately, it may be advisable to ask the
children to make their statements in the presence of a second adult whose express
responsibility is to look after their best interests. Their parents will be advised as
soon as possible afterwards. Children should be treated sensitively at all times and
will not be called to give evidence to a hearing in person.
44. Before any decision is made, or any penalty is imposed, the employee will be called
upon to attend a hearing under this procedure. Although it is important that such
hearings take place as quickly as possible, reasonable time should be given for the
employee to prepare his/her case and arrange representation. This will be at least
five working days unless agreed otherwise by mutual consent.
45. The responsibility for the disciplinary decision rests with the Chairman of the panel.
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The disciplinary hearing
46. The employee will be given at least five clear working days’ notice of the hearing,
the intention being to agree a mutually convenient date. Where appropriate and
practical, the relevant trade union will be informed of the date of the hearing. In any
event, it is important to hold the hearing as soon as reasonably possible.
47. When given notice of the hearing, the employee should be informed in writing:
that s/he is required to attend a disciplinary hearing under the procedure
the reason for the hearing, including the specific issues to be addressed
the time and place of the hearing
the right to be represented or accompanied by a trade union representative or
fellow worker
that reasonable adjustments will be made to the arrangements for the hearing on
request for employees with a disability or who require an interpreter. Similarly,
the needs of the employee’s representative or any witnesses should be
accommodated
that the employee will have the right of appeal.
48. If either party intends to present written evidence at the hearing, this needs to be
received in time for management to circulate a copy to all interested parties so that
they can consider it before the hearing. The employee can request the hearing be
delayed if additional time is needed to consider documentation. Where witnesses
are to be called, by either side, these should be named to both sides before the day
of the hearing. If any new evidence comes to light in the hearing (e.g. during
questioning), an adjournment must be offered. All relevant papers must be given to
all parties present.
49. At the hearing, the employee must be reminded that it is part of the Council’s
Disciplinary Procedure. In addition, the employee must be reminded of his/her rights
under the procedure and the details of the reason for the hearing.
50. The hearing will normally proceed in the following order. The Chairman will:
i. introduce those present at the meeting
ii. invite the officer presenting the complaint to state the complaint against the
employee (including hearing any witness statements)
iii. invite the employee to question the presenting officer on the statement of
complaint
iv. invite the employee or his/her representative to state his/her case (including
hearing any witness statements)
v. invite the officer presenting the complaint to question the employee on
his/her statement
vi. invite other members of the Panel to put questions to either party and then
ask his/her own questions
vii. invite the officer presenting the complaint to summarise (no new evidence
should be presented at this stage)
viii. invite the employee or his/her representative to summarise his/her statement
(no new evidence should be presented at this stage)
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ix. ask both parties to withdraw
x. ask the Panel to consider the case and then the Chairman will come to a
decision
xi. call back both parties to announce the decision or to advise that a decision
will be communicated in writing at a later date
xii. advise of the right of appeal.
51. At the conclusion of the hearing, the employee will be informed of the outcome and
of any action to be taken. The outcome should be given as soon as possible and in
any case within no more than three working days. It should be confirmed in writing.
The employee will be reminded of the right of appeal and of the procedure and time
limit for doing so. The management notes taken at the hearing will be given to the
employee as a record of the hearing. Normally this will be done within 10 working
days of the hearing. Any disagreement by the employee or their representative as to
the accuracy of the record should be noted.
52. In concluding the disciplinary hearing, the Chairman will consider carefully whether
any further action is necessary apart from any relating to the individual, such as
whether there is a need to review or change any working practices as a result of
what has been presented.
54. However, there could be occasions when this progression will not be followed. For
example, a final written warning may be appropriate without having been through the
first written warning stage or dismissal may be necessary for a first but very serious
breach of discipline. Breaches of conduct which have resulted in disciplinary action
and which are not yet ‘spent’ may lead to progression through the penalties, even if
they are not of a similar nature.
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the arrangements for a review
the implications of a failure to improve or of any further shortcomings
details of the appeal process, including the timescales and details of the person
to whom the appeal should be sent.
Dismissal
57. In cases of gross misconduct or if conduct or performance is still unsatisfactory
following warnings and any other actions under the procedure and the employee still
fails to reach the required standards, dismissal will normally result. No decision to
dismiss can be taken without the agreement of the County HR Manager. The
employee will be provided as soon as reasonably practicable with written reasons for
dismissal, the date on which employment will terminate and the right of appeal.
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Employees in multiple jobs
61. It may be that an employee subject to disciplinary action works in more than one job
for the County Council. In this case the relevant directorate HR managers should
meet with the line manager of the post for which the employee is facing disciplinary
action to determine if the action will impact on their other role(s).
Appeals
62. An employee has the right of appeal against disciplinarily decisions. For first written
warning, this appeal will be heard by the Head of Service, or his/her delegate,
unless that person has previously been involved in the original disciplinary decision.
63. In the case of a final written warning the appeal will be heard by the relevant
Director unless s/he has been involved in the case previously. In cases where the
outcome was dismissal or demotion, the appeal will be heard by the Tribunal Panel
from the Democracy and Organisation Committee.
65. The outcome of the appeal will be notified either immediately after the hearing and
confirmed in writing, or in any event by written notification within five working days of
the appeal hearing.
Disciplinary Records
66. Employees subject to disciplinary action will have access to all associated records
and correspondence on file. After satisfactory completion of the specified period, all
records will be removed from the employee’s directorate personal file and retained
on a separate file by the directorate HR Manager. The specified period will not
normally be less than one month or longer than twelve months, other than in
exceptional circumstances.
67. Should any disciplinary action be later found to be unwarranted it will be withdrawn
and expunged from the employee’s records. The employee will be notified
accordingly.
References
68. Care should be taken when preparing employment references requested on
employees who are, or who have been the subject of disciplinary action. References
must be accurate and factual. While disciplinary action might be ‘spent’, it may still be
appropriate to mention in a reference that such action has been taken in the past as a
reference must give an honest and true reflection of the subject’s employment history.
Directorate HR teams can assist in drafting appropriate wording.
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Criminal Prosecutions and Police Involvement
69. When an employee is the subject of a criminal prosecution for an offence which it is
considered makes him/her unsuitable for his/her type of work, then any decision to
suspend or dismiss will be subject to the agreement of the County HR Manager.
This might relate to events that are not directly connected with the employee’s job.
The normal hearing and appeal procedure will be followed if it is practically possible
for the employee to attend. A court verdict of guilty cannot be taken as justification
for dismissal in itself. Neither does a court verdict of not-guilty mean that the
behaviour involved is automatically acceptable to the employer.
70. Managers will need to undertake an investigation, regardless of the outcome of any
criminal proceedings, and they must assess the evidence available to them on the
balance of probability (i.e. that it is more likely than not that the employee is
responsible for the conduct that has justified disciplinary action). The criminal
burden of proof is a higher standard (beyond reasonable doubt, i.e. virtual certainty)
but just because an employee has been found guilty does not excuse the employer
from undertaking an investigation.
71. When the police are called in to investigate an incident, they may be unwilling for
managerial investigation to take place until their preliminary investigations are
completed. In all cases, a managerial investigation should take place as soon as
possible without it causing serious disruption to police investigations. It could be
regarded as unfair if solely police investigations are relied upon in holding a
disciplinary hearing or if the hearing is delayed too long because of waiting for police
investigations.
Surveillance
72. Whenever covert surveillance or the obtaining of information by the use of
informants or undercover officers is being considered the agreement of the Head of
Service, Solicitor to the Council and the directorate HR Manager is required. It is
necessary to ensure that the reasons why surveillance is needed are recorded, the
proportionality of the surveillance is determined and recorded and the surveillance
must be time-limited and reviewed.
Financial Irregularities
73. Any investigation into financial irregularities must comply with the Protocols for the
Commissioning and Investigation of Financial Irregularities (available from the
directorate HR Team) and Internal Audit must be informed.
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Probationary Period
75. There are separate procedures covering how disciplinary matters should be dealt
with for employees who are in their probationary period. The work and conduct of
such employees should be properly monitored and if necessary counselling, advice
and help to achieve the required standards of performance should be provided.
76. A decision to dismiss a probationer should only be made after a disciplinary hearing
conducted in accordance with this procedure. The employee has a right of appeal to
the Director or his/her delegate.
Monitoring
78. In introducing this policy an impact assessment has been undertaken to take
account of the Race Relations (Amendment) Act 2000 and discrimination legislation
more generally. Confidential monitoring is undertaken of the disciplinary process in
order to gather data to help establish whether the policy is operated in a fair and
consistent manner. In undertaking monitoring the Council will not identify
individuals.
Head of HR
October 2005
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Related policies/procedures
Aids and Employment
Capability Procedure
Dignity at Work
Domestic violence
Drugs and Alcohol
Employing Disabled People
Health and Safety
Managing Sickness Absence
Management of Long Term Health Issues
Officers Code of Conduct
Raising Concerns at Work, Grievances and Whistle-blowing
Six steps to managing poor performance
Stress
Violence to Employees at Work
Working Time Regulations