Section 2 Policy Wording and Procedural Guidance

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Policy Title

Table of Contents

Section 1 – Policy Intentions

1.1Aims

1.2Introduction

1.3Principles

Section 2 – Policy wording and Procedural Guidance

2.1 Formal Procedure

2.2Suspension

2.2.1General

2.2.2Principles of Treatment

2.2.3Entitlements / Conditions of Employees Subject to Precautionary Suspension

2.2.3.1Attendance at police premises

2.2.3.2Support facilities

2.2.3.3Investigation updates

2.2.3.4Identity card/Prox Card/Print Card

2.2.3.5Pay and allowances

2.2.3.6Annual leave

2.2.3.7Sickness reporting

2.2.3.8Other employment

2.2.3.9Details of allegations

2.2.3.10Further Information

2.3Fact Finding/Investigation

2.3.1Purpose

2.3.2Conducting an Investigation

2.4Criminal Charges or Convictions not Related to Employment

2.5The Hearing - Procedures

2.6Sanctions and “Life” of Warnings

2.7Appeals

2.8Documentation and Records - Retention

Section 3 - Relevant Legislation

Section 4 - Related References/Policies

Section 5 - Monitoring and Review

5.0Monitoring and Reviewing

5.1Monitoring

5.2Review

Appendix A - Offences Constituting Gross Misconduct

Appendix B - Roles In The Disciplinary Hearing

Appendix C - Guide To The Stages In A Disciplinary Hearing

Appendix D – Conducting an Investigation

Section 1 – Policy Intentions

1.1Aims

It is the Policy of the Police and Crime Commissioner and Chief Constable for Gloucestershire to have a fair and systematic approach that deals with and takes corrective action in circumstances where our expected standards of conduct, performance and behaviour are believed to be lacking, or a breach of conduct is alleged to have occurred

1.2Introduction

Standards of conduct and performance are required in any organisation to ensure order, the effective operation of the business and a safe and healthy working environment. In the Police Service, our expectations of conduct and performance standards are particularly high, and reasonably so as a consequence of the type of work we do, the access we have to privileged information, the sensitivity of data and issues that we can be required to deal with, and the confidentiality of material we often use in our day to day tasks.

Our expected standards of conduct, performance and behaviour are usually maintained through the normal day-to-day relationships between line managers and OPCC and police staff. Good management practice should ensure that all employees are aware of acceptable standards of behaviour and conduct and that they receive appropriate support and are encouraged to challenge to ensure that these are maintained.

Minor breaches of conduct can be dealt with successfully in an informal way and will remind the employee of the standards of conduct and behaviour that are expected. Early intervention and action are essential to avoid matters escalating.

If an employee does not respond to informal action, or there is a more serious allegation of misconduct, then it may be necessary to use the formal disciplinary procedure. In order to promote fairness and proportionality in the treatment of individuals and in the general conduct of employee relations, disciplinary rules are necessary. They assist each organisation to operate effectively by setting standards at work; the procedures help to ensure that these standards are adhered to and provide a fair and consistent method of dealing with them.

This policy has been written to ensure that if our expected standards of conduct, performance and behaviour are believed to be lacking, or a breach of conduct is alleged to have occurred, there is a fair and systematic approach to investigating such matters and taking the appropriate corrective action.

It is vital that individuals who are responsible for invoking the initial stages of disciplinary action clearly understand that on occasions where the sanction is dismissal, they can justify before an Employment Tribunal that on the basis of the circumstances they were presented with they acted fairly and reasonably in reaching a decision to dismiss.

People Services Centre must be informed and consulted when considering any formal disciplinary action to ensure correct and consistent use of procedures. They can also advise on other informal methods available to resolve performance/disciplinary issues.

1.3Principles

In the event of disciplinary action, the emphasis should be to encourage an improvement in behaviour or standards rather than merely punish the employee.

A full investigation of facts and an opportunity for the employee to explain their action and state their case must be undertaken.

The employee must be informed in writing of the nature of the allegation(s) and have prior sight of any evidence in connection with the complaint.

Privacy and confidentiality shall be observed in all actions taken under this procedure. This will extend to the publication, as appropriate, of data relating to disciplinary sanctions.

At all stages the employee shall be kept fully informed of the allegations made against him/her and will have adequate opportunity to provide an explanation or rebuttal.

In accordance with the Employment Relations Act 1999, s.10, the employee has the right to be represented at a disciplinary hearing by a representative of the recognised staff associations, trade union or a fellow worker. It is the responsibility of the employee to arrange his/her own representation. Employees chosen as representatives have the right to take time off during working hours to attend such meetings. Representation will normally be one person but, in exceptional circumstances[1], may be increased to two. Employees also have the right to a reasonable postponement of the disciplinary hearing if their chosen companion is unavailable at the time the hearing is proposed. If the employee gives express permission, copies of all relevant documentation will also be sent to the representative or fellow worker; otherwise the employee will be given one set of copies.

Allegations of misconduct, rather than poor performance, made during an employee’s probationary period shall be dealt with in accordance with the disciplinary procedure.

Except for acts of gross misconduct, for which the penalty will be dismissal without notice, no employee should be dismissed for a first breach of discipline.

In normal circumstances, it is expected that the process (investigation and, if appropriate, disciplinary hearing) will be completed within 90 calendar days.

Section 2 – Policy wording and Procedural Guidance

2.1Formal Procedure

The following procedure details the steps that must be taken when implementing the disciplinary procedure. It covers the fact-finding process, suspension if applicable, the hearing, sanctions and the appeal procedure.

This is a formal procedure that must be strictly observed by all parties. Failure to do so may invalidate the proceedings. The hearing should be arranged, wherever practicable, during the working hours of the employee and at the normal place of work.

Where allegations of misconduct are made against an employee who is an elected trade union representative, the HR Consultant will immediately inform a full-time officer of the appropriate trade union and advise the employee that this action is being taken.

The HR Consultant must immediately inform the Assistant Chief Constable (Organisation) in the case of Police Staff and the Chief Executive in the case of OPCC staff, where allegations of gross misconduct are made against an employee, or where an employee is suspended from duty.

If any of the below criteria apply then there is a mandatory requirement for the case to be referred to the IPCC through the Appropriate Authority (Head of PSD), no later than the following day [that it comes to notice]. The IPCC will then decide on the mode of investigation (MOI).

Forces and the Office of the Police & Crime Commissioner must refer complaints or incidents as soon as practicable and in any case no later than the end of the day after the day when it becomes clear that a matter must be referred. The IPCC has no jurisdiction in relation to OPCC staff.

IPCC referral criteria;

• Serious assault by a person serving with the police
• Serious sexual assault by a person serving with the police
• Serious corruption
• That a 'relevant' offence has been committed
• Criminal offence or behaviour which is liable to lead to a disciplinary sanction and which, in either case, is aggravated by discriminatory behaviour
• Complaints or conduct matters which are alleged to have arisen from the same incident as anything falling within these criteria.

For further advice on this please contact any member of Professional Standards Department (Ext 4305).

2.2Suspension

2.2.1General

If the allegations involve gross misconduct, or where a continued presence in the workplace may prejudice an investigation or harm the interests of the employee, other employees or the Force, or where there may be a risk to the security of the organisation and/or its employees, suspension from work may be considered and imposed (See Appendix A for offences constituting gross misconduct.)

The decision to suspend may only be taken by a Superintendent / Departmental Head or above, after seeking advice from a HR Consultant or Manager within the People Services Centre.

Suspension will normally be effective immediately. However, if an employee is not suspended initially, but during the course of the investigation the officer conducting the investigation becomes aware of additional information that leads him/her to the conclusion that the employee should now be suspended; this may be actioned at that time in accordance with the above.

2.2.2Principles of Treatment

An employee may be suspended in any situation where gross misconduct is suspected or alleged. Suspension is a precautionary measure to enable management to carry out a full investigation and should not be regarded as implying the matter has been prejudged in any way, or as a means of punishment.

Suspension may also be implemented in very exceptional circumstances such as where the alleged or suspected misconduct is not gross but the continued presence of the employee in the workplace is considered likely to impede an effective investigation. An example of this could be a situation in which witnesses feel intimidated from co-operating with an investigation if the employee remains at work.

During suspension the employee shall receive their normal pay (for details Para 2.2.3.5 below refers).

Suspension must be regarded as a last resort, and therefore in every case consideration will be given as to whether an alternative action to suspension is appropriate and available, such as temporary redeployment to alternative duties and/or Department / Local Policing Area.

Where it is considered necessary to suspend, the Superintendent / Departmental Head will interview the employee and tell them of the reason for their suspension. An HR Consultant must attend the suspension interview.

The employee does not have a right to be accompanied at a suspension interview. Although the employee will be offered this support, the suspension meeting will not be postponed if a representative is not available.

The Superintendent / Departmental Head will confirm to the employee any decision to suspend in writing within 5 working days of the decision to suspend, stating the reasons for suspension, giving advice on their entitlements and confirming the conditions of suspension.

The employee will be advised that the support of the Force’s Employee Assistance Provider (EAP), which is neutral and wholly independent from the investigation, can be made available should they wish to talk through any anxieties or concerns about the procedure. However, the EAP will not be able to discuss details about the investigation nor will they act as an advocate or representative in any subsequent disciplinary proceedings.

Whilst suspended an employee will be excluded from police premises for work purposes and should not have contact with colleagues without prior permission. They may attend meetings with their staff association and/or trade union representatives and have access for Occupational Health, welfare, social and sporting purposes (subject to managerial approval – see Para2.2.3.1 below).

The employee will be kept appraised of progress of the investigation by the investigating officer at fortnightly intervals and advised of the likely timescales involved.

During the investigation, the decision to suspend will be reviewed by the investigating officer in liaison with the HR Consultant and Head of HR (or nominated representative) on at least a fortnightly basis. However, where new facts not available at the time of suspension or last review arise such a review will take place immediately.

2.2.3Entitlements / Conditions of Employees Subject to Precautionary Suspension

2.2.3.1Attendance at police premises

Suspended employees should not attend police premises whilst suspended, unless asked to do so by the investigating officer, HR Consultant or their line manager, or for purposes of representation. Depending on the circumstances they may be allowed access for Occupational Health, welfare or social/sporting purposes, subject to managerial approval.

2.2.3.2Support facilities

Suspended employees will have unrestricted access to their staff-side representative. Welfare support will be available through the line manager and the Force’s Employee Assistance Provider (EAP).

In addition, depending on the circumstances, regular contact may be maintained through visits from managers and/or colleagues. These visits are to ensure the well being of suspended employees and to update them on work-related issues. At their request, copies of Force Bulletin, Force newspapers, etc. will be forwarded to suspended employees for their information by the People Services Centre at Headquarters

2.2.3.3Investigation updates

The investigating officer will provide these to suspended employees and their representative (if requested) at fortnightly intervals.

2.2.3.4Identity card/Prox Card/Print Card

Suspended employees must surrender all such cards to the Human Resources Department (via the HR Consultant) at the time of suspension. They will be returned when/if the suspension is lifted.

2.2.3.5Pay and allowances

Suspended employees will continue to receive their normal pay and any incremental entitlement (subject to normal conditions) and allowances, e.g. shift, weekend working, stand-by payments, regular honoraria payments etc., which they would have been entitled to had they been at work.

2.2.3.6Annual leave

During suspension, employees are required to remain available to be contacted in connection with the disciplinary investigation or to be recalled to duty where that is appropriate. However, suspended employees may book annual leave whilst suspended provided they have acquired prior management approval. If the suspension is lifted, then normal carry-over arrangements at the end of the leave year will apply. Leave booked prior to suspension taking place will be honoured.

2.2.3.7Sickness reporting

If suspended employees are sick they should report this, following the normal sickness reporting procedures. It does not, however, override the conditions of their suspension.

They will continue to receive normal pay as outlined above under 'Pay and Allowances'. However, the period of absence will be recorded and included in the calculation of any future sick pay entitlement. That is, if they subsequently report sick within twelve months of the last day of their sickness period they will not be entitled to the maximum amount of sick pay.

If the suspension is lifted and they remain absent from work due to sickness, normal sick rules will apply from the date the suspension is lifted.

Sickness absence does not excuse suspended employees from attending a disciplinary hearing and advice will be sought from the Force Medical Advisor to determine if they are fit to attend. If this view differs from the employee's own GP or consultant, independent advice will be sought.

2.2.3.8Other employment

Suspended staff must be advised of their obligation throughout the suspension period to remain contactable and available for the purposes of the disciplinary investigation. Taking other paid employment whilst suspended is not permitted. However, where a suspended employee has registered a business interest with the Force, the Superintendent / Departmental Head will review this in liaison with a HR Consultant and the Professional Standards Department. The review may lead to a revocation of permission whilst suspended. The result of the review will be conveyed to the employee in the letter confirming the decision to suspend.

2.2.3.9Details of allegations

The Superintendent / Departmental Head will convey initial details of the allegation, as known at this stage, to suspended employees within the written confirmation of the precautionary suspension.

2.2.3.10Further Information

If employees need further information or have queries on this guidance, they should contact their line manager or HR Consultant in the first instance.

2.3Fact Finding/Investigation

2.3.1Purpose

The purpose of the investigation is to establish the facts and to provide the panel with sufficient information upon which to reach a fair and reasonable decision.

2.3.2Conducting an Investigation

An investigation must include:

• Collecting all relevant documents, facts and other materials
• Getting experts to complete relevant audits (e.g. computer, financial, etc)
• Interviewing the employee who is the subject of the disciplinary action and any complainant
• Where necessary, formally interviewing witnesses[2]

An appropriate manager (the Investigating Officer) identified by the Superintendent / Departmental Head should undertake an investigation, with the assistance of the HR Consultant. The HR Consultant provides the Investigating Officer with appropriate HR support, advice and guidance on the discipline and ensures that the investigation is conducted in accordance with the procedure.

The investigation should involve all parties and quickly establish the facts in order to decide whether to proceed with formal disciplinary action. This would normally be concluded within 10 working days. If there are exceptional circumstances that mean that the investigation will take longer to complete, the Investigating Officer should consult with the HR Consultant. The Investigating Officer should also ensure that the employee is kept informed of progress and likely timescales on at least a fortnightly basis.

The investigation will need to be supported with investigatory interviews that:

(a)allow the employee an opportunity to make a statement or volunteer information in relation to the allegations. This may enable the matter to be cleared up promptly without the need to proceed to a disciplinary hearing; or

(b)provide an opportunity to verify with the employee any factual points about which the Investigating Officer may require clarification.

The employee must be given 5 working days notice in writing of the interview, and be advised that they have the right to be accompanied by a Trade Union representative or fellow worker. The Investigating Officer will confirm the arrangements for the interview in writing, making it clear that this is part of the investigation to gather information and not a hearing under the disciplinary procedure, and that any representative or fellow worker attending with the employee will not be allowed to answer questions on behalf of the employee under investigation. The employee may be required to attend more than one interview in connection with the investigation, dependent upon the individual circumstances of the case. A record will be kept of what is said during the investigation interview, although this should not be a verbatim account. This will be typed up and all parties will be asked to review it, to ensure that it is an accurate record of what was said, and then asked to sign and date it. To avoid delays in the process, e-mail confirmation will be acceptable. The statement/written record of interview may be used in a disciplinary or other hearing, as appropriate, following the investigation findings.