Disciplinary Policy and Procedure
Version: V9
Ratified by:
People & Culture Steering Group
Date ratified: 17/10/2023
Job Title of author:
Director, People Partnering
Reviewed by Committee or Expert Group Staff Partnership Forum
Equality Impact Assessed by:
Related procedural documents
Director, People Partnering
Managing Attendance Policy (HRPOL31)
Capability Policy (HRPOL29)
Dignity at Work Code of Practice (HRPOL30)
Recruitment of Ex-Offenders and DBS Policy (HRPOL7)
Recruitment and Selection Policy (HRPOL11)
Incident Reporting and Management Policy (IGPOL19)
Probationary Policy (HRPOL34)
Review date: 17 October 2026
It is the responsibility of users to ensure that you are using the most up to date document template – i.e. obtained via the intranet
In developing/reviewing this policy Provide Community has had regard to the principles of the NHS Constitution.
Version Control Sheet
V2 May 2011 HR Manager Approved Reviewed
V3 November 2011 HR Manager Approved Reviewed
V4 November 2013 HR Business Partner Approved Reviewed
V5 August 2016 HR Business Partner Ratified Reviewed
V6 August 2017 Head of Human Resources Ratified Reviewed
V7 January 2019 Head of Human Resources Ratified Reviewed
V8 May 2022 Head of HR Ratified Reviewed
V9 October 2023 Director, People Partnering Ratified
POLICY STATEMENT
Provide aims to deliver high quality and safe services and it recognises that this commitment to quality and safety must be reflected in the work and conduct of all its employees.
This will be achieved by:
• promoting and valuing excellent standards of conduct and integrity among employees;
• managing disciplinary matters promptly, effectively, fairly and lawfully, in accordance with the ACAS Code of Practice.
The disciplinary procedure should be used as a management tool to improve standards of conduct in the workplace, to identify issues of poor or unacceptable conduct and lead/direct the employee towards better standards of conduct.
PURPOSE AND RATIONALE
Purpose
This document sets out the organisations policy and procedure in relation to a colleague’s conduct. The Provide Group expects all colleagues to meet high standards of behaviour. It is important that colleagues understand their obligations and rights regarding this aspect of employment.
Rationale
The aim of this disciplinary procedure is to provide a framework within which managers can work with colleagues to maintain satisfactory standards of conduct. Provide wishes to ensure that when something happens that was not as expected, that a process is followed to decide next steps. We want to encourage improvement, where necessary, and ensure the practice of lessons learnt is embedded across the organisation.
It is the organisation’s policy to ensure that any disciplinary matter is dealt with fairly and that steps are taken to establish the facts using the Just & Learning Culture principles and to give colleagues the opportunity to respond before taking formal action.
1. Scope
1.1 This procedure applies to all employees of the Provide Group and workers engaged through Workforce Solutions to work on the Bank.
1.2 It does not apply to employees who are within their probationary period of service (refer to the Probationary Procedure) or Medical and Dental staff, who are subject to the provision of circular HSC2003/012 entitled “Maintaining High Professional Standards in the Modern NHS”, (or any guidance that supersedes it).
1.3 This procedure does not form part of any colleague’s contract of employment and it may be amended at anytime. We may also vary this procedure, including any time limits, as appropriate.
2. Key Principles
2.1 All matters relating to disciplinary issues or outcomes must be kept strictly confidential by managers and employees. Where possible, the implementation of management recommendations should avoid reference to the name of the employee or the disciplinary proceedings from which they arose. Breaches of confidentiality relating to disciplinary issues may be treated as disciplinary allegations in their own right.
2.2 In applying this procedure managers are expected to:
• ensure that all employees are aware of the standard of behaviour that is expected of them and the action they face if they fail to meet these standards of conduct as outlined in Appendix 1;
• ensure, as far as is reasonably practicable, that employees are aware of any specific rules or standards of behaviour within their particular area of work which, if breached, could constitute misconduct or gross misconduct as outlined in Appendix 1.
• deal with matters confidentially, consistently, promptly, in line with natural justice principles and in a non-discriminatory way;
• ensure that in the event of a secondary incident arising during the course of an investigation this may either be investigated separately or as part of an holistic investigation
• seek advice from the HR Business Partner Team at all stages of the procedure in advance of any steps being taken; make ‘reasonable adjustments’ to ensure equality of access is guaranteed for all;
• where allegations are against a trade union official, the manager must inform an appropriate official of the union and the Group Chief People Officer (or their nominee) prior to formal procedures taking place, other than for an informal warning. Managers should seek advice from the HR Business Partner Team if they are unsure if an employee is a trade union official;
• ensure that any employee subject to proceedings has a current copy of this policy and procedure;
• keep adequate and accurate records of all disciplinary investigations and hearings.
• raise any concerns about potential fraud immediately with the Local Counter Fraud specialist at the earliest opportunity (see section 12.5 for more details)
2.3 In order to comply with legislative requirements, best practice and the ACAS Code of Practice, employees’ have the right:
• to be accompanied/represented by a trade union representative or work colleague at any formal meeting concerned with this procedure. This does not include relatives or any person acting in a legal capacity. A formal meeting is defined as a disciplinary meeting, including meetings related to the investigation, which could result in: a formal warning being issued, or
some other disciplinary action is being taken, or the confirmation of a warning or some other disciplinary action (Appeal Hearing) but does not include fact-finding or preliminary meetings or informal and ad-hoc discussions;
• to a maximum of 14 calendar days (excluding bank holidays) written notice of any hearing;
• to be informed of the allegations during an investigation;
• to be informed of the possible consequences if the allegations are substantiated;
• to request a reasonable postponement of a meeting if the employee or their representative is unavailable to attend for a good reason; if a postponement is necessary this will only be rearranged once within 7 Calendar days (excluding bank holidays) subject to management availability;
• to state their case and have this considered at a disciplinary hearing before any disciplinary action is considered;
• not to be dismissed for a first offence, except in cases of gross misconduct;
• to have any recorded formal warnings given under the procedure disregarded for future action after the stated time.
2.4 If an employee resigns and formal proceedings are being considered or have started, the investigation may continue to an appropriate conclusion at management’s discretion. HR advice should be taken on this and any subsequent reference requests relating to the employee should include that the employee left the organization whilst an investigation was ongoing.
Just & Learning Culture
The Provide Group believes that a Just and Learning Culture can be seen as an environment where we put equal emphasis on accountability and learning. It is where the organisation asks colleagues to give an account of how the event happened and what it meant to them and what support is needed by those affected by the event (both directly and indirectly).
A Just Culture Guide has been published by NHS Improvement to support the conversations and decision making by managers within Provide when, on the rare occasion, it may be appropriate to consider individual actions involved in a patient safety matter.
The Just Culture guide should be used in the investigation of incidents to help all stakeholders, including the employee, understand how the appropriate response to the person involved in an incident, differs according to the circumstances where an error was made.
https://www.england.nhs.uk/wpcontent/uploads/2021/02/NHS_0932_JC_Poster_A3.pdf
The Just Culture Guide is clear that the actions of colleauges involved in an incident should not automatically be examined using this just culture guide, but it can be useful if the investigation of an incident begins to suggest a concern about an individual’s action. The guide highlights important principles that need to be considered before formal management action is directed at an individual employee.
An important part of a just culture within Provide is being able to explain the approach
that will be taken if an incident occurs.
The just culture guide can be used by all parties:
• to explain how they will respond to incidents,
• as a reference point for organisation HR and incident reporting policies, and
• as a communication tool to help staff, patients and families understand how the appropriate response to a colleague involved in an incident can and should differ according to the circumstances in which an error was made.
As well as protecting colleagues from unfair targeting, using the guide helps protect patients by removing the tendency to treat wider patient safety issues as individual issues.
3. Preliminary Investigation (Fact Finding)
3.1 When an alleged misconduct emerges, in line with the Just & Learning Culture a preliminary investigation needs to be undertaken and completed as soon as possible by the line manager of the employee (or another nominated manager) and reviewed with the HR Business Partner Team, and the Senior Manager (Assistant Director, Deputy Director, Head of Service or equivalent). The Senior Manager must then act as Commissioning Manager.
The purpose of the preliminary investigation is to gather sufficient evidence to determine if a serious issue exists and if so, if a formal investigation is required. If it is found that such an issue exists and a formal investigation is required, then consideration needs to be given to the seriousness of this and whether suspension needs to take place (see Section 5).
The preliminary investigation may recommend an alternative resolution to a formal investigation, such as an informal warning, or action under more appropriate policies i.e. Capability Policy and Procedure (HRPOL29).
3.2 Consideration must be given to whether the incident/event in question is a reportable incident as defined in the Incident Reporting and Management Policy (IGPOL2). A decision as to whether the incident/event requires investigation in line with this policy or formal review in line with the Incident Reporting and Management policy should be made as soon as possible to determine which process to follow. This decision can be aided by using the National Patient Safety Incident Decision Tree.
A disciplinary procedure and a formal incident review may take place in tandem and may be investigated by the same investigating officer.
3.3 Consideration should be given as to whether the incident/event is related to a complaint or insurance claim (e.g. personal injury) may give rise to litigation, or may be linked to an issue involving a contractor or sub-contractor. If there is any indication of such links the Commissioning Manager must liaise with the relevant department at the outset to agree the best way to proceed.
3.3 Should an allegation require reporting to the police, the line manager and/or Commissioning Manager should seek immediate advice from a member of the HR Business Partner Team.
4. Informal Conversation
4.1 Most concerns can often be addressed effectively and swiftly by the immediate line manager having a structured discussion with their employee regarding the standards of conduct required and areas of improvement that are needed. If an improvement is not seen, then formal action may be taken, in accordance with this policy/procedure.
During this private meeting the manager should:
• state the conduct that is not satisfactory;
• ask the employee for an explanation;
• state clearly the conduct expected, including any timescales to improve, where appropriate
• advise that if the conduct does not improve to the standard required, then the manager may initiate formal disciplinary proceedings
• seek an understanding from the employee, if they require any support to reach the level of improvement that is necessary.
This meeting will be documented and a copy will be shared with the employee.
5. Suspension
5.1 Suspension, or temporary removal of the employee from the workplace, may be necessary in serious cases where it would be detrimental to allow the employee to remain at work pending completion of an investigation and any disciplinary hearing, as there may be a potential risk to the employee, colleagues, or other individuals, or risk to the investigation itself. Provide considers that suspension is not a sanction in itself and does not imply guilt.
5.2 Consideration should be given to whether there is a viable alternative to the suspension, e.g. a temporary transfer to another location or post and these should be explained to the employee providing reasons for why they are not viable. Employees will normally be suspended only in cases of potential gross misconduct but depending on the nature of the allegations it may be possible to find alternative work as suspension should be avoided if at all possible. The employee will retain the pay they would have received if at work during the period of suspension unless they have refused suitable alternative employment within Provide.
5.3 Authority to authorise suspension lies with the Chief Officer for the directorate following consultation with the Group Chief People Officer and Director, People Partnering. Where appropriate, authority to confirm suspension to an employee may be delegated to another appropriate manager (e.g. line manager).
5.4 Where possible, the employee should be suspended in a face to face meeting and the reasons for the suspension, including the initial allegation, fully confirmed to the employee. It must also be confirmed that Provide does not consider suspension a sanction. The suspending manager should be accompanied by another manager or member of the HR Business Partner Team and notes should be taken of the meeting. While the employee does not
have an automatic right to be accompanied to a meeting to confirm a suspension, should they wish to be accompanied by a work colleague, and it is appropriate (i.e. the work colleague is not a potential witness and it will not unduly delay the meeting taking place when necessary) then Provide management should allow it.
5.5 The suspension must be confirmed in writing within 7 calendar days (excluding bank holidays) of the suspension. As far as possible it should be agreed with the employee what will be communicated to the employee’s colleagues regarding the reason for the absence from the workplace.
5.6 In cases that result in a suspension, a Contact Officer may be nominated by the Commissioning Manager following discussion with the employee. The Contact Officer will be an employee with no involvement in the case, who will provide the employee with a communication link with Provide should the suspended employee need to contact members of staff during the suspension.
This is a neutral role and the Contact Officer may be asked to pass on information regarding the progress of the investigation, as well as any update on team or organisation changes but is not obliged to attend any meetings as part of the process, or act as the employee’s representative.
5.7 The suspended employee will be required to co-operate fully with the investigation, to attend any investigatory interviews and to remain contactable during what would be their normal working hours as far as practicable, however they may be required to attend meetings under this process outside of their patterns so as not to unduly delay matters.
5.8 Suspension must be subject to regular review on a weekly basis and may need to continue beyond the period of the investigation. This must be confirmed in writing to the employee.
5.9 The Investigating Officer should update the employee regularly on progress towards completion of the investigation, and ensure the Contact Officer is updated similarly. This is with regards to timescales, but not the content of the investigation.
Working whilst suspended
5.10 A employee who is suspended from duty must remember that all aspects of their employment contract remain effective and therefore should ensure they remain available to attend any required meetings with managers within the organisation.
5.11 An employee who is suspended must also discuss with their Contact Officer if they hold a second job and wish to continue with this work during their period of suspension. This discussion needs to include:
• the type of work,
• what the role is and
• whether the reason for suspension would impact on this other workplace.
The Group Chief PeopleOfficer, in conjunction with the directorate Chief Officer will determine whether to allow the employee to continue working in their
6. Investigations
6.1 Before taking any disciplinary action an appropriate investigation must be undertaken.
6.2 Having considered the evidence provided at the fact-finding stage, the Commissioning Manager will discuss with the HR Business Partner Team and make a decision whether to commission an investigation or not, and if so, whether the allegations may constitute gross misconduct (see Appendix 1).
6.3 The Commissioning Manager will confirm the initial allegation(s) and appoint an Investigating Officer. Depending on the circumstances, seriousness or complexity of the case, the line manager, or another manager (who could be from another business unit or directorate) will undertake the investigation, and will be referred to as the Investigating Officer.
Investigating Officers should have received Provide approved training in Handling Disciplinary Matters. The Commissioning Manager should also ensure that there is no conflict of interest that would impede the Investigating Officer from undertaking their investigation.
The Commissioning Manager will ensure that they provide full terms of reference to the Investigating Officer, which will include a timeframe as to when they expect the investigation to be completed and the final report submitted, for consideration.
It is also the Commissioning Managers responsibility to keep the employee informed of the progress of the investigation.
6.4 If there are several incidents of misconduct that occur in the same service area by a number of employees, the Senior Manager may commission an independent holistic service investigation, with set terms of reference, the outcomes of which may lead to disciplinary actions with regards individual employees and/or the line manager, however consideration should be given as to whether the Capability Policy is more appropriate. The same may apply to serious misconduct or complaints against one employee, where an independent Investigating Officer may be required.
6.5 The HR Business Partner Team will support the Investigating Officer as appropriate, and does not need to attend Investigation meetings. However, it is recommended that for complex investigations that may constitute gross misconduct, a HR representative is part of the Investigating team, who will support the Investigating Officer and attend all interviews in order to give a fuller and thorough consideration of any evidence and issues arising from the investigation.
6.6 The Investigating Officer will:
• establish the facts of the case and gather evidence;
• interview the employee and any appropriate witnesses. The employee concerned should be given 7 calendar days (excluding bank holidays)
notice of any investigation meeting;
• ensure individuals being interviewed are aware of the purpose of the investigation and/or meeting and that any information obtained may be used in the course of any subsequent disciplinary hearing;
• ensure the employee under investigation is:
– notified as quickly as possible in writing electronically;
– given sufficient detail so that the allegation(s) being investigated can be fully explored;
– provided with a copy of the Disciplinary Policy and Procedure (HRPOL14)
– given an opportunity to offer an explanation and state their case
• conclude the investigation, taking HR advice at this stage.
• review the initial allegations in light of evidence that emerges from the investigation and amend these as appropriate, taking guidance from HR.
• any amendment to the allegations should be notified in writing to the employee.
6.7 At the end of the investigation stage, the Investigating Officer should complete their written report, using the Provide Template for Investigations. Before submitting the report, the Investigating Officer should:
• review the allegations, satisfy themselves that they remain appropriate in light of the evidence from the investigation and decide if the allegation(s) constitute misconduct or gross misconduct, and if the allegation(s) to be considered at hearing are different to those initially considered, or if additional allegations have come to light during the course of the investigation.
• Any changes to allegation(s), and confirmation whether they are considered gross misconduct or not, needs to be communicated to the employee in the letter inviting them to hearing. Examples of actions, which may constitute misconduct and gross misconduct, are given in Appendix 1. This is not an exhaustive list and is dependent upon the circumstances of the case.
• prepare a written report on the outcome of the investigation and present the case, at the formal hearing, as appropriate
• make any additional management recommendations if appropriate to be considered separate to the disciplinary hearing, confirming details of who and how the recommendations will be reviewed.
6.8 The report should detail their conclusions, which are directly related to the allegation(s) and the disciplinary process, and should be (this list is not exhaustive):
• No case to answer (there is insufficient evidence to progress matters further, or it is clear the allegation(s) do not constitute misconduct or gross misconduct
• Other resolution (there is sufficient evidence, but the severity of the matter, or the mitigating circumstances mean the case does not warrant formal hearing, or a different policy, such as Capability Policy (HRPOL29), may be more appropriate)
• A case to answer (there is sufficient evidence that the allegation(s) should be progressed to formal hearing for a panel to consider the outcome)
These conclusions should refer to the relevant pieces of evidence (e.g. appendices in the report).
If there are management recommendations, or recommendations for the employee outside of those that would be decided in a formal hearing, these should be detailed (with reference to appropriate appendices and evidence) in the Recommendations section of the report.
6.9 Submit their report to the Commissioning Manager for review. The Commissioning Manager will be responsible for the final decision on how to act on the recommendations and conclusions within the report. It is advised that the Commissioning Manager seeks advice from the HR Business Partner Team at this point, especially if they do not agree with the findings and/or recommendations of the report or require the Investigation Officer to collate further evidence.
The Commissioning Manager is responsible for ensuring that the employee is kept informed of the process at this time and explain any delays.
6.10 The Commissioning Manager will pass the master copy to the HR representative supporting the Investigation Officer. This should be a hard copy. The HR representative will be responsible for the master copy.
7. Notification of Hearing
The Disciplinary Panel
7.1 The Panel will be confirmed by the Commissioning Manager, and cannot include the Commissioning Manager. The Panel hearing the case will consist of at least two officers:
• a nominated manager to Chair the hearing
• a HR Business Partner representative.
The Chair has discretion to call on technical or specialist officers (e.g. audit / legal), or other managers, to sit on or advise the panel at their discretion.
7.2 The authority to chair a disciplinary hearing will be dependent on the potential warning1 that may be applied and the nominated manager will be as follows:
Gross Misconduct (disciplinary action up to and including dismissal) Assistant Director or equivalent
Misconduct (disciplinary action up to and including final written warning)
Witnesses
Deputy Assistant Director/Clinical Manager/Operational Manager (Band 7 or above)
7.3 Witnesses should only be called where relevant. They should only be present to give evidence and to be questioned and are not to be used to provide
1 Employees have a right not to be dismissed for a first offence, except in cases of Gross Misconduct.
character references. Witnesses will be informed that they should keep matters confidential and should not collude with any other witnesses. Details of proposed witnesses should be communicated to either party in advance of the hearing and witness statements should be provided by both sides, wherever possible 7 calendar days prior to the hearing. There is guidance for witnesses in the Manager’s Guide to Handling Disciplinary and Grievance Issues Effectively.
7.4 The panel should consider calling the Commissioning Manager as a witness, where appropriate
7.5 Where the employee who is the subject of the disciplinary hearing calls witnesses, it is the responsibility of the employee to arrange their release from work so that they can attend. It is the employee’s responsibility to obtain the witnesses’ agreement to speak on his/her behalf and to bring any relevant material. Where the employee is suspended from work and not in contact with potential witnesses, the request should be put to the HR Business Partner Team or their nominated contact officer.
7.6 Where an employee is invited to attend a hearing as a formal witness, they must attend and engage with the process. Full rights will be afforded under whistleblowing principles in these matters.
7.7 Where it has been decided to proceed to a formal disciplinary hearing the employee will be advised in writing by the Commissioning Manager and given at least 14 calendar days (excluding bank holidays) written notice. Shorter notice of the hearing may be mutually agreed. In exceptional circumstances, a deferment where further time is required to prepare for a hearing will not be unreasonably refused, but such a deferment will not normally exceed 7 calendar days (excluding bank holidays).
7.8 The letter, to be marked Private & Confidential, addressee only and sent both First Class and Recorded Delivery or via email, should include, as appropriate:
a) the date, time and place of the hearing;
b) the specific allegation(s) against the employee;
c) the names of the members of the Panel conducting the hearing and their roles, including the presence of a notetaker;
d) the name of the Investigating Officer presenting the management case and the name of any person from the HR Business Partner Team providing support to the Investigating Officer;
e) a copy of the Investigation report, including copies of all written evidence which will be referred to in the management case;
f) the names of any management witnesses who will be attending in person at the hearing;
g) the employee’s right to be accompanied by a Trade Union representative or work colleague (a second copy of the letter should be provided for use by the representative);
h) reference to the employee’s right to call their own witnesses, present written submissions and witness statements; this information together with a list of the names of any witnesses must be supplied in writing to the delegated manager at least 7 Calendar days (excluding bank holidays) prior to the hearing;
i) a copy of the disciplinary policy and procedure and the notification of the disciplinary actions that may be taken by the panel (e.g. if dismissal
could be considered);
j) the requirement that the employee should confirm his/her attendance at least prior to the hearing;
k) the consequences of non-attendance (i.e. that the hearing can proceed without the employee).
7.9 The suitability of the venue and arrangements for the hearing should ensure equality of access, for example the hearing may need to be held at a specific venue or location that is away from the workplace to ensure confidentiality.
7.10 If the employee is unable to attend the disciplinary hearing e.g. because they are ill, they will be offered another reasonable date and time as an alternative, but such a deferment will not normally exceed 7 Calendar days (excluding bank holidays).
7.11 If the employee’s representative cannot make the rearranged hearing, the employee must propose another date and time which is no later than five working days after the date originally proposed.
7.12 Where an employee fails to attend the rearranged hearing, for any reason, the panel may go ahead and hear the case in the employee’s absence.
8. Disciplinary Hearings
Conduct of Disciplinary Hearing
8.1 Provide has a guide for the conduct of the hearing, which is attached as Appendix 2. However, the Chair of the Panel has the discretion to vary this dependent on the circumstances of the hearing and/or to ensure fairness in the proceedings. In accordance with the order laid out in the guide. The Investigating Officer and employee are invited to present their cases in relation to the allegations and call witnesses. The manager, employee and panel are able to ask questions of the Investigating Officer and employee and any witnesses.
8.2 A disciplinary hearing panel may receive a request to present information or evidence to the panel during the disciplinary hearing, that has not previously been seen by either the Investigating Officer or by the employee. The panel should consider the reason why this information was not made available prior to the hearing, its relevance to the proceedings, and whether it is reasonable to include the reviewed information. The panel should decide whether the information should be included, or whether the hearing should be adjourned to permit additional investigation to take place.
8.3 It may be necessary for brief adjournments to take place during disciplinary hearings. Either party may request an adjournment. The Chair will consider these requests. The panel’s deliberations take place in private. There must be an adjournment once both sides have presented their cases for the panel to consider their decision.
8.4 The Chair of the Panel presents the decision. This will normally be given verbally to both parties. The decision of the Panel should be confirmed in writing by no later than 7 Calendar days (excluding bank holidays) after the end of the hearing, together with information on the right to appeal. A copy of the
outcome letter will be retained on the individual’s personal file for the length of time stipulated in the letter. Notes of the hearing will be taken to support the panel. The notes are for information only as record of the event and should not be taken as full and formal minutes of the meeting. The notes are for Provide records only and will not automatically be shared with the employee unless there is an appeal.
8. 5 The panel may decide:
• there is no case to answer,
• to refer the case for further investigation,
• to take disciplinary action, in the form of a warning or sanction, and additionally,
• to make management recommendations (that may include allegations/investigation against other employees) along with the details of who and how the recommendations will be reviewed. These will be presented to the Commissioning Manager by the Chair of the Panel and it is the Commissioning Manager’s responsibility to ensure implementation.
8.6 The severity of the sanction imposed will relate to the gravity of the misconduct, and before reaching a decision consideration should be given to: -
a) the gravity of the offence and the evidence given at the hearing;
b) the employee’s explanation;
c) whether, on the balance of probabilities (i.e. that it has more likely to have happened than not) the Panel considers the allegation(s) has/have been proven;
d) the employee’s disciplinary record and general service;
e) any mitigating circumstances;
f) whether the proposed penalty is reasonable in all the circumstances;
g) the penalty applied in similar cases in the past, although each case must be treated on its individual circumstances
A checklist to assist in decision taking is at Appendix 3.
9. Disciplinary Action
The following formal actions are available:
9.1 Formal Written Warning:
This is the least severe form of formal warning and is generally appropriate for minor and/or first offences. The warning should contain details of the misconduct and the improvement required in a given timescale, if appropriate. The warning should be given in writing indicating that a Formal Written Warning has been issued and should be kept on the employee’s file. This will, normally, be disregarded for disciplinary purposes after 12 months, although the panel has the discretion to either shorten or lengthen this based on the circumstances and mitigation. The panel will confirm the length of time the warning will remain active to the employee. The Chair of the Panel will also communicate any formal sanction resulting from the hearing to the Commissioning Manager, including the length of time any warning will remain active. Once a Formal Written Warning ceases to be active it should not be referred to in subsequent disciplinary decision.
9.3
Final Written Warning:
Generally, appropriate for serious offences or where there is an accumulation of offences and/or a previous written warning is still active. However, in very serious cases, the final warning may be the first warning issued. The warning should contain details of the misconduct and the improvement required in a given timescale, if appropriate. Employees should be advised that any further misconduct could result in dismissal. The warning should be given in writing to the employee with a copy placed on the employees’ file. This will, normally, remain active for a period of a minimum of 12 months. The Panel can impose a longer time period for this warning, but the reason for this should be made clear to the employee and must be reasonable according to the circumstances of the case. The Chair of the Panel will communicate any formal sanction resulting from the hearing to the Commissioning Manager, including the length of time any warning will remain active.
9.4 Impose a financial penalty or other requirement: This includes, e.g., making good a financial loss suffered by Provide; taking back money falsely claimed by the employee; the prevention of further incremental progression or withholding an annual increment or withholding a benefit or privilege. This can be done either independently of or in addition to other formal sanctions on the basis of the gravity of the offence.
9.5 Dismissal:
An employee’s contract of employment can be terminated in the following instances:
(i) if a further instance of misconduct occurs when a Final Written Warning is active; and/or
(ii) gross misconduct (including first incidents of gross misconduct)
Dismissal for misconduct will be by contractual notice or with pay in lieu of notice.
Dismissal for gross misconduct will normally be effective immediately as gross misconduct is misconduct of such a serious and fundamental nature so that it breaches the contractual relationship between the employee and Provide. In the event that an employee commits and/or admits an act of gross misconduct, Provide will be entitled to terminate summarily the employee’s contract of employment without notice or pay in lieu of notice. The letter to the employee should confirm the last day of service and any payments or deductions due.
9.6 Action Short of Dismissal (redeployment):
In some instances wheredismissal would apply, the panel, following agreement from the Commissioning Manager and the Director of the directorate(s) involved, can offer an option of redeployment. This would constitute deployment to a lower graded post (which may include differing terms & conditions). This should not be the norm, but is available to be used in serious cases as an alternative to dismissal. The downgrading should be proportionate to the gravity of the offence, take immediate effect, be without pay or benefits protection and should be considered only after seeking Human Resource and,
9.7
if necessary, legal advice. The Director of the directorate is required to formally approve this sanction before it is communicated to the employee. In these circumstances, no salary or wage protection rights will apply.
Should an employee decline the lower graded post, they will be dismissed from employment as per point 9.5
A note explaining the disciplinary sanctions further is attached at Appendix 4.
Applicability of Warnings
Warnings may be applied in sequence. However, the Panel has the discretion to apply the level of warning warranted by the seriousness of the case. In circumstances where an employee is subject to the application of both the capability and the disciplinary procedures, warnings given under Provide’s disciplinary procedure that are still current may also be taken into account when deciding on appropriate action under Provide’s capability procedure and vice versa. The manager should review performance against standards expected and may decide prior to the time of expiry if it is appropriate to extend the improvement note on file.
In cases where more than one warning is active, the panel will decide whether the warnings should run concurrently, or be considered cumulative.
In circumstances where there are numerous allegations of misconduct that are upheld, the panel may take a decision to dismiss if, cumulatively, the incidents of misconduct are serious enough to warrant a dismissal.
10.Appeals
10.1 An employee has a right of appeal against any formal sanction issued after a hearing that has been convened under this procedure. An employee wishing to appeal must submit their grounds for appeal in writing to their Director, or other senior manager as specified by the panel to be received within 14 calendar days (excluding bank holidays) of the date of receipt of the notification letter that confirms the disciplinary action to be taken.
10.2 The letter should state that he/she wishes to appeal on one or more of the following grounds:
• the decision was based on evidence that did not support the conclusion;
• a failure to follow procedure had a material effect on the decision;
• proper account was not taken of any matters of fact referred to at the original hearing;
• the action taken was too severe or inconsistent with previous decisions;
• where new relevant evidence relating directly to the original allegation(s) has become available.
10.3 Appeals against dismissal are heard by an Employment Appeal Sub Committee. In cases where a formal warning was issued, appeals are heard by an Appeal Panel. The Director, or senior manager as nominated by the panel, to receive the appeal, in consultation with the HR Business Partner Team, will make the necessary arrangements for the appeal to be heard.
The Employment Appeal Sub Committee
10.4 The Employment Appeal Sub Committee will consist of:
• a Group Chief Officer to Chair the Hearing;
• Director, People Partnering
Where appropriate, authority to chair the hearing may be delegated
The panel has the discretion to have an additional panel member for technical or specialist reasons (e.g. audit / legal). The employee will be informed if an additional panel member will be present at the appeal hearing and the reason for this.
The Appeal Panel
10.5 The Appeal Panel will consist of at least two officers:
• a nominated manager to Chair the hearing, who, where possible, holds a senior position to the manager who heard the Disciplinary case;
• a HR Business Partner Team representative.
The panel has discretion to call on technical or specialist officers (e.g. audit / legal) or other managers to advise at the appeal
Dependent on the grounds of appeal, a decision will be taken by the Chair of the Appeal as to whether this is a review of the disciplinary hearing, or a rehearing of the case.
Appeal Hearing Arrangements
10.6 The arrangements for appeals are that the employee will be given at least 14 calendar days (excluding bank holidays) written notice of the appeal hearing which should be heard as soon as possible. This will, normally be, within 28 calendar days (excluding bank holidays) of the employee receiving the letter confirming the outcome of the original disciplinary decision.
10.7 The letter should be sent First Class and Recorded Delivery or via email and include as appropriate:
a) date, time and place of the hearing;
b) that the hearing forms part of the Disciplinary Policy and Procedure;
c) the employee’s right to be accompanied by a Trade Union representative or work colleague (a second copy of the letter should be provided for use by the representative) It should be noted that the representative must not be a relative of the employee or any person acting in a legal capacity.;
d) the names of the Panel members conducting the hearing;
e) the name of the person presenting the management case;
f) copies of relevant paperwork, including a copy of the Disciplinary Policy and Procedure (if not previously sent);
g) name(s) of any management witnesses who will present evidence at the hearing;
h) reference to the employee’s right to call his / her own witnesses, present written submissions and witness statements; This information together with a list of names of witnesses to be called should be supplied at least 7 calendar days (excluding bank holidays) prior to the hearing; the written submission should include any papers being referred to; i) that the employee should confirm their availability to attend at least 7 calendar days (excluding bank holidays) prior to the hearing.
10.8 Provide has a model process for the conduct of the appeal hearing, which is attached as Appendix 2. However, the Chair of the Appeals Panel/Employment Appeal Sub Committee has the discretion to vary this dependent on the circumstances of the hearing and/or to ensure fairness in the proceedings.
10.9 It may be necessary for brief adjournments to take place during appeal hearings. Either party may request an adjournment. The Chair will consider these requests. The panel’s deliberations take place in private. There must be an adjournment once both sides have presented their cases for the panel to consider their decision.
10.10 The Chair of the Appeal Panel/Employment Appeal Sub Committee presents the decision. This will normally be given verbally to both parties. The decision of the Panel/Sub-Committee should be confirmed in writing by no later than 7 calendar days (excluding bank holidays) after the end of the hearing, outlining the main issues considered and the decision reached. The employee should be informed that there is no further internal right of appeal. A copy of the outcome letter will be retained on the employees’ personal file.
11.Outcome of Appeals Panels / Employment Appeal Sub Committee
11.1 The panel/subcommittee may decide to:
• uphold the appeal and dismiss any disciplinary sanction;
• substitute a different disciplinary sanction providing this is not more severe than the original one;
• dismiss the appeal and uphold the original decision.
12.Relationships with other Procedures / Processes
Other Agencies
12.1 Certain acts of misconduct or allegations may lead to an employee being investigated under a different procedure/process such as Child Protection, Adult Protection, NHS Protect and/or Gateway fraud investigation, or a criminal investigation (this list is not exhaustive). Investigation under the disciplinary procedure may take place simultaneously, unless Provide decides otherwise as a result of the request of another agency.
12.2 A determination may be made at a disciplinary hearing prior to the outcome of other investigations being known. For example, whether Provide takes action in respect of a potential criminal matter is not dependent on the outcome in court. If exceptionally, it is required to delay a disciplinary hearing pending the
outcome of another agency’s investigations then the employee will be informed. If the employee is suspended, he or she will be told that the suspension will last until the outcome is known and it will be reviewed.
Criminal Offences
12.3 A criminal offence does not necessarily require internal disciplinary action to be taken. It depends what impact, if any, the employee’s action has on his/her employment with Provide. Managers should take advice from Human Resources in these instances.
12.4 Some workplace disciplinary offences may also be criminal offences such as theft, fraud, or sexual offences. In these instances, there may be a duty to inform the police. Advice from Human Resources should be sought before disciplinary proceedings are embarked on. Provide’s Group Chief Finance Officer must be informed if the case involves any financial irregularities.
Fraud
12.5 Fraud happens when somebody lies, or deceives the organisation in order to cause harm, usually by costing the organisation money. Even if Provide has not lost money, we may still have experienced fraud as it comes in many different forms.
The Provide Anti-Crime Policy (EEPOL01) defines fraud as: “a dishonest act or omission made with the intention of making a financial gain or causing a financial loss.”
▪ FRAUD BY FALSE REPRESENTATION – lying about something or misrepresenting a fact by any means, e.g. by words or actions.
▪ FRAUD BY FAILING TO DISCLOSE INFORMATION – not saying something when you have a legal duty to do so, e.g. failing to notify an employer of a criminal conviction or a professional sanction.
• FRAUD BY ABUSE OF A POSITION OF TRUST – abusing a position where there is an expectation to safeguard the financial interests of another person or organisation
12.6 All employees within Provide have a duty to raise any concerns about potential fraud at the earliest opportunity. In such instances, employees should refer to Provide’s Anti-Crime Policy (EEPOL01) and discuss the matter with an HR Business Partner
Grievances
12.7 Where an employee subject to the disciplinary procedure raises a grievance, advice should be sought from the HR Business Partner Team. The employee must submit the grievance form to their line manager, or manager’s manager if their line manager is the subject of the grievance, who will determine the appropriate route for their grievance to be investigated.
12.8 The following principles need to be considered:
a) if the grievance is raised during the course of a disciplinary process and is related to the case/allegations then it should be considered as to whether it forms part of the disciplinary and can be dealt with by the investigating officer and considered at the hearing, or whether the grievance should be investigated separately before concluding the disciplinary investigation. If the grievance is about another unrelated matter then the grievance procedure may be invoked and run concurrently (this would not impact on any outcome of the disciplinary process as that would be dealt with on its own merit);
b) generally, an informal grievance would be dealt with during the investigatory stage, a formal stage grievance would be considered at a disciplinary hearing
c) if the matter does not progress to a disciplinary hearing any outstanding grievance may be considered through the grievance procedure in the usual way.
d) If a grievance refers to a previously heard disciplinary there is no scope for the disciplinary to be reheard, reopened, or the evidence reexamined.
The decision on this will be made by the Commissioning Manager, unless the Commissioning Manager is the subject of the grievance, when it will be made by the appropriate Director
Capability
12.9 In cases where there are both capability or performance issues and a neglect of duty or other misconduct then the Disciplinary Policy and Procedure will apply first, unless it is appropriate to run them concurrently, otherwise the Capability Procedure will be followed.
13.Monitoring
13.1 This policy will be reviewed at least every 3 years in line with the Policy for the Management of Procedural Documents and more frequently in line with any legislative changes.
Reviews will be undertaken by the HR Business Partner Team and monitoring will be conducted in respect of disciplinary action outcomes. The need for improvement or clarification may be identified as lessons learnt, through using the process and where
14.Links to other Policies
14.1 Managing Attendance Policy (HRPOL31)
Capability Policy (HRPOL29)
Dignity at Work Policy & Procedure (HRPOL30)
Recruitment of Ex-Offenders and DBS Policy (HRPOL7)
Recruitment and Selection Policy (HRPOL11)
Incident Reporting and Management Policy (IGPOL19)
Probationary Policy (HRPOL34)
