formal disciplinary procedure for employees

For

MayfieldSchool

Adopted by the full Governing Body on the 27th September 2010

formal disciplinary procedure for employees

Human Resources updated October 2009

Updated September 2010

Contents

POLICY STATEMENTGo to

INTRODUCTIONGo to

SCHOOL’S DISCIPLINARY PROCEDURE: CONDUCTGoto

EXPLORATORY INTERVIEWGo to

SUSPENSION AND ALTERNATIVESGo to

INVESTIGATIONGo to

THE DISCIPLINARY HEARING

Procedure to be Followed in Cases Heard by the HeadteacherGo to

Procedure to be Followed in Cases Heard by the Governing BodyGoto

THE DISCIPLINARY DECISIONGoto

APPEALGo to

FACTORS TO BE CONSIDERED: DISCIPLINARY PROCEDURESGo to

MONITORINGGoto

TRADE UNION / PROFESSIONAL ASSOCIATION CONTACT LISTGo to

POLICY FEEDBACKGo to

HISTORY OF POLICY CHANGESGo to

Model Disciplinary Policy & Procedure

This document has been adopted by the Governing Body, being the relevant body, as the Policy and Procedure for MayfieldSchool.

Transitional Arrangements

The new Disciplinary arrangements came into force on 6 April 2009. Any cases which commenced prior to 6 April 2009 which may be referred to an Employment Tribunal will be considered under the ‘old regime’ in terms of compliance with statutory procedures. An extension to the time limit for presenting a claim to an Employment Tribunal will also be available in certain circumstances.

Case Law will continue to evolve and inform decisions therefore you are strongly advised to seek advice from Human Resources if you have any cases which may be considered under transitional arrangements.

Policy Statement

MayfieldSchool expects of all employees conduct of the highest standard. The disciplinary process is designed to help and encourage employees to achieve and maintain acceptable standards. The purpose of a formal procedure is to ensure that when disciplinary action needs to be taken

  • it is both fair and reasonable and
  • is applied equitably and with consistency in every case.

The aim will be to resolve issues quickly and at the lowest level of management. In many instances good management practice will prevent recourse to formal disciplinary procedures.

Schedule 14 of the Education Act 1996 requires that Governing Bodies establish disciplinary rules and procedures. These procedures must reflect any legal provisions relating particularly to dismissal, the ACAS Code of Practice and Agreement and the basic requirements of natural justice.

Natural justice requires that:

(a)When disciplinary procedures are put in motion the employee should know the reason for them;

(b)The employee should be given an opportunity to offer an explanation and to put his/her version and his/her facts forward before any decision is made;

(c)A disciplinary hearing should be a fair one and conducted free of bias.

All cases will be treated on an individual basis and the Headteacher and/or Governing Body will deal with each case as appropriate, depending on the facts of the case, and with the overall objective of protecting the School, its pupils and its employees

Introduction

Disciplinary matters can be complex and use of the LA`s expertise and experience plus that of Diocese in Voluntary Aided (VA) Schools is recommended at all stages in the process.

It is essential when managing disciplinary matters that a clear distinction is made between conduct and issues related to capability.

This document provides a model Disciplinary Procedure for Conduct which Governing Bodies are recommended to adopt. It should be used in conjunction with the Guidance for Managing a Disciplinary Hearing. A separate model Capability Procedure is available for adoption.

If for any reason Governors wish to amend the models or draw up their own procedures, the draft should be referred to a Human Resources Advisor to ensure that the proposed procedure is legally acceptable. This is important particularly since the LA could not support a procedure that might weaken inherently the position of the school and/or the LA in seeking to deal with disciplinary matters in a fair and reasonable manner.

The aim of any action must, wherever possible, be to achieve improvement and to prevent the need to resort to the next stage of the procedure. The conclusion to either procedure, however, could be dismissal.

The LA must be represented at any hearing that may result in dismissal in a Community, Community Special or VoluntaryControlledSchool. Voluntary Aided Schools must consult with the appropriate Diocesan authority. In Foundation and Voluntary Aided Schools the LA will only have the right to attend and advise any meeting to consider dismissal where such an advisory right has been agreed by the Governing Body or determined by the Secretary of State.

In any case of disciplinary action, the employee has a right to be interviewed and must be given an adequate opportunity to make representation. He/She should be advised of his/her right to be accompanied during the interview by a Trade Union /Professional Association or other Representative and should be encouraged to exercise that right.

Failure to establish and to follow a fair procedure could result in a claim for unfair dismissal being brought to an Employment Tribunal. The LA will normally meet the costs arising from dismissal unless it has good reasons not to do so. Generally `good reason` will be in cases where the advice of the LA has either not been sought or has been sought and not followed.

It is the responsibility of the Governing Body to ensure that all employees are issued with a copy of the school’s conduct and capability procedures. This must be done when the employee is issued with a contract of employment and at any time when disciplinary proceedings are being considered.

Schools Disciplinary Procedure: Conduct

1.1This document has been adopted by the Governing Body, being the relevant body, as the procedure for MayfieldSchool. This procedure will cover conduct, not issues related to capability which should be handled under the Schools Capability Procedure (See Note 1).

Types of Misconduct

Misconduct might be a series of minor offences or a single incident. Misconduct falls into two categories: general misconduct and gross misconduct. The nature and severity of the alleged offence will determine the form of disciplinary action invoked. Gross misconduct will result in either a final written warning or summary dismissal, which may be without notice or with pay in lieu of notice when the nature of the case in such that the Council cannot allow the individual to continue at work.

General Misconduct may include:

  • Poor timekeeping
  • Unjustifiable or unauthorised absence from work
  • Misuse or unauthorised use of School equipment, materials or property
  • Misuse of the School’s internet and e-mail facilities
  • Failure to comply with a lawful and reasonable request from a Line Manager or Supervisor
  • Failure to improve performance after first warning
  • Failure to comply with the Council’s Code of Conduct for Employees
  • Failure to comply with School policies and procedures
  • Failure to comply with employees’ obligations under the Council’s Local Protocol on Member and Officer relations

Gross Misconduct – may include serious or repeated occasions of the above, or:

  • Theft or Malicious damage
  • Submission of false claims for financial reimbursement
  • Illegal use of the School’s equipment
  • Threatening behaviour, assault of another employee or member of the public
  • Sexual misconduct
  • Racial misconduct
  • Harassment on grounds of Race, Sex, Disability, Sexual orientation, Age, Religion or Philosophical belief
  • Disregard for work rules, particularly relating to safe practices at work
  • Serious breaches of bullying and harassment policy
  • Serious breach of the School’s Equal Opportunities Policy
  • Serious breach of Health & Safety regulations or rules
  • Serious breaches of the Data Protection Act
  • Incapacity through drink or drugs, though consideration must first be given to the Councils’ Drugs and Alcohol Misuse Policy
Note 1

In accordance with the provisions of Sections 35 and 36 of the Education Act 2002 and the School Staffing Regulations 2003 Governing Bodies of

  • Community,
  • Community Special and
  • Voluntary Controlled (VC) Schools

have delegated to them all the disciplinary powers of the LA as employer.

The Governing Body is the employer for Foundation and the Diocese for Voluntary Aided Schools.

Governors will need to be clear about their definition of acceptable standards of behaviour and that information will need to be made known to all staff. Governors are advised to minute adoption of this procedure. The LA should be consulted at all stages of any disciplinary procedure and must be represented at any stage where dismissal is being considered.

1.2The Governing Body has delegated to the Headteacher the authority to take disciplinary action in all cases (a) except those involving possible dismissal or (b) including those involving dismissal (SeeNote 2). Where the Governors have not delegated authority for dismissals a Committee will be convened.

Note 2

Under the Education Act 2002 and the School Staffing Regulations 2003 Governors may delegate responsibility for staff dismissals as follows:-

a)to the Headteacher alone or

b)to the Headteacher acting together with one or more Governors or

c)to one or more Governors.

The LA strongly advocates the involvement of Governors working together with the Headteacher.

Governors should determine and record the level of delegation and in Voluntary Aided Schools should consult with the appropriate Diocesan Authority.

In the event of the Headteacher being the subject of disciplinary action, the Governing Body will be responsible for the disciplinary procedure. (See Note 3).

Note 3

In these circumstances the Governing Body can expect the LA to work closely with them to provide support throughout the entire procedure.

1.3If there is the possibility of disciplinary action being taken, the member of staff concerned should be encouraged to consult with his/her trade union/professional association. No disciplinary action will be taken against a member of staff who is a recognised trade union representative (including school representatives) until the circumstances of the case have been discussed with a full-time official of the union concerned (SeeNote 4). Acts to neutralise the situation, such as suspension, can however be taken.

Note 4

Discussion with the Full Time Official of the Union should be conducted in consultation with a Human Resources Advisor.

1.4If the disciplinary matter concerned involves either financial irregularity or a child protection issue the Governors will follow the relevant procedures of the Authority. (SeeNote 5).

Note 5

Details of the Authority’s Procedures for handling matters relating to suspected financial irregularities and details of the Authority’s procedures for handling matters related to Child Protection are available from the Council’s Intranet site or a Human Resources Advisor.

The Right to Representation

Employees have a statutory right to be accompanied at formal disciplinary and appeal hearings by a representative.

There is no statutory right to be accompanied at informal discussions or investigatory meetings however Council procedure permits a representative to attend investigatory meetings.

The representative may be a colleague, trade union representative or an official employed by a trade union. A trade union representative need not be an employee of the Council but if they are not a fellow worker or an employee of the union the Council may insist on them being certified by their union as being trained to accompany an employee at a disciplinary or appeal hearing.

The representative will be able to address the hearing, put the employee’s case and sum it up and respond on the employee’s behalf to any views expressed at the hearing. The representative and employee are also able to confer during the hearing. However, the representative is not permitted to answer questions on behalf of the employee or address the hearing if the employee does not wish it, or prevent the employer from explaining their case.

Partners, spouses, friends or legal representatives have no statutory or contractual right to be able to accompany individuals. In exceptional circumstances consideration may be given to the employee bringing a companion rather than a representative. This person would not be eligible to represent the employee at the meeting.

There is a right to legal representation in cases where the potential consequences of any disciplinary action which could result in an inclusion on List 99. You are advised to seek HR advice in such cases.

Individuals should confirm before the meeting whether or not he/she will be accompanied and which witnesses have been called.

Reasonable adjustment may be needed for an employee, or their representative, with a disability, for example the provision of a support worker or advocate with knowledge of the disability and its effects. Consideration should also be given to employees who have language or communication difficulties to ensure that they have fair representation throughout the process. This may include ensuring that reasonable adjustments are made in the case of a disabled employee, i.e. by ensuring that the meeting is conducted in a room allowing wheelchair access, or that some form of translation service or alternative format is provided for employees where English is not their first language.

Exploratory Interview

2.1It should be remembered that the exploratory interview is not a disciplinary interview within the procedure. The exploratory interview forms part of the investigation process (see Section 4 – ‘Investigation’ below)

2.2An investigating officer will be appointed to hold an exploratory interview with the member of staff against whom the complaint/allegation has been made. (See Notes 5 and 6).

Note 5

Details of the Authority’s Procedures for handling matters relating to suspected financial irregularities and details of the Authority’s procedures for handling matters related to Child Protection are available from the Council’s Intranet site or a Human Resources Advisor.

Note 6

There is no statutory right to representation at investigation meetings, however it is advised that employees may be accompanied. See Right to Representation. The employee should be provided with a copy of the school’s current disciplinary procedures. Representation, usually by a union representative must not be refused if the member of staff wishes it. Appropriate contact with the LA should be maintained.

2.3At the time of being asked to attend an exploratory interview the member of staff must be informed in writing of the allegations being made and of their right to be represented at the interview. They should be provided with confirmation of the source of the complaint and be given copies of all correspondence/documentation that initiated the complaint. In addition, the member of staff must be issued with a copy of the school’s current disciplinary procedures.

2.4If the complaint or allegation is against the Headteacher, the Chairman of Governors will be responsible for initiating the exploratory interview. (See Notes 3 and 6).

Note 3

In these circumstances the Governing Body can expect the LA to work closely with them to provide support throughout the entire procedure.

Note 6

The member of staff must be advised of his/her rights and be provided with a copy of the school’s current disciplinary procedures. Representation, usually by a union representative, must be encouraged and must not be refused if the member of staff wishes it. Appropriate contact with the LA should be maintained.

2.5The purpose of the exploratory interview will be to:-

(a)Establish relevant information and determine whether further investigation is needed before a decision is taken about whether or not a formal hearing is necessary.

(b)Provide the member of staff with an opportunity to respond at an early stage.

(c)Explain what further steps, if any, are intended to be taken and the likely timescale. (SeeNote 7).

Note 7

It may be decided to take no further action, which could include a decision to give an informal admonishment. However, if further action is to be taken this could include investigating further or to move to a disciplinary hearing.

Suspension and Alternatives

Suspension

3.1The Headteacher, a designated governor, or a committee of the Governing Body of a Community, Community Special and VoluntaryControlledSchool, may in consultation with the LA and in the case of Voluntary Aided Schools, the Diocese, suspend a member of staff. (SeeNotes 5 and 8).

Note 5

Details of the Authority’s Procedures for handling matters relating to suspected financial irregularities and details of the Authority’s procedures for handling matters related to Child Protection are available from the Council’s Intranet site or a Human Resources Advisor.

Note 8

The Governing Body, when adopting or reviewing the procedure, should determine and record which governor or committee has the authority to suspend.

3.2Suspension will be considered:

(a)Where this would allow a more objective examination of the circumstances.

(b)When alleged misconduct is sufficiently serious that the outcome may be dismissal.

(c)Where a member of staff is the subject of a police investigation and the alleged offence is considered relevant to his/her duties.

(d)Where there is a reasonable ground to believe that it would seriously affect the interests of the school and/or the individual if s/he were to remain at work. (SeeNotes 9 and 10).

Note 9

Suspension, whilst not a disciplinary act, is a very serious step and therefore one which needs to be considered carefully before being taken. Suspension is always on full pay, the cost of which will fall on the school’s budget share. Wherever possible the LA should be consulted before taking any action.

Note 10

There may also be occasions when it is desirable not to suspend an employee but to request them to stay away from the school on full pay.

In response to such a request the member of staff should be advised to seek advice from his/her Trade Union/Professional Association. Where this happens immediate advice should be sought from Human Resources and in the case of VA Schools, the Diocese, on what further action needs to be taken.

There may be exceptional circumstances where it is not practical to apply a suspension e.g:

if a person authorised to impose a suspension is not available. On such occasions the senior member of staff present at school should have the authority to request an employee to leave work immediately and stay away on full pay until further instructed by the Headteacher. In such circumstances, wherever possible, advice should be sought from Human Resources before any action is taken. A decision must be made as quickly as possible as to whether the employee is to be formally suspended or reinstated.

3.3The employee should be interviewed at the time when consideration is being given to suspension and must be given an adequate opportunity to offer reasons why he/she should not be suspended. The interview should cover the allegations, notification that an investigation will be carried out and the likely timescale. The employee has the right to be represented, usually by the Union Representative, at this interview.