Revised Disciplinary Policy (Tracked)

Policy No.:3.52

DISCIPLINARY PROCEDURE

Purpose:

Although it is hoped that most disciplinary problems can be resolved by informal discussions or counselling, there are occasions when a more formal approach will need to be adopted.

The following procedure is intended to establish a uniform, fair and systematic approach which should apply when VSA’s code of conduct is breached.

Step I – Conduct Investigation and Establish the Facts

At all stages, VSA will promptly investigate any matter where it is reasonably suspected or believed to contravene VSA’s Code of Conduct or may otherwise be a disciplinary matter. The level of the investigation will depend upon the seriousness and circumstances of each case.

In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing. However, in cases of a minor breach of VSA’s Code of Conduct (e.g. timekeeping, attendance), after considering all the pertinent details, the employee’s line manager will set up and chair a hearing, with advice from a member of the HR team

The employee will be informed as soon as possible as to the fact that an investigation has commenced and when it has been concluded.

Depending on the circumstances of the case, the employee may be invited to attend an investigatory interview before proceeding to a disciplinary hearing. It should be made clear to the employee at the outset of the interview that it is only an investigatory interview and that it should not be considered as disciplinary action. An investigatory interview will not always lead to disciplinary action. There is no right to be accompanied at an investigatory interview.

Wherever appropriate, written statements should be obtained from witnesses at the earliest opportunity, copies of all statements, which may be referred to at a later stage, will generally be given to the employee prior any formal meeting.

Once an investigation is complete those conducting the investigation will make a recommendation about whether or not there is a case to answer. If such a recommendation is made then arrangements will be made to hold a disciplinary hearing.

A member of the HR team will provide advice and support to the Investigating Officer during the investigation.

Suspension

Suspension with pay may be considered as a holding position where there is a suspicion of gross misconduct or in the interests and protection of the organisation, other employees, service users or the employee themselves.

Where an employee is suspended with pay, such suspension will be kept under review and will last for as short a period as is necessary to fully investigate the employee’s alleged misconduct.

Suspension of an employee is not a disciplinary sanction in itself and confirmation of suspension must be provided to the employee in writing.

‘Pay’ for the purpose of this procedure will be determined by the employees base wage rate and normal wage schedule.

Step II – Invite to a Disciplinary Hearing

If it is decided that there is a disciplinary case to answer, then the employee should be invited in writing to a disciplinary hearing.

The notification should provide exact details of the allegations against the employee and the possible outcome should the allegations be upheld (to include dismissal).

The notification should also provide details of the time and venue for the disciplinary hearing and advise the employee of their right to be accompanied at the meeting. The employee should receive adequate notice of the hearing – generally three clear working days.

There should be attached to the letter any written evidence, which may include witness statements to help the employee prepare their response to the allegations. The attachments should be listed. Witness statements should only be withheld in circumstances where it is necessary to preserve anonymity and this should be done only rarely.

Step III – Hold the Disciplinary Hearing

Any disciplinary hearing should be held without unreasonable delay, whilst allowing the employee reasonable time to prepare their case.

The disciplinary hearing will be chaired and conducted (where appropriate) by the employee’s line manager supported by a member of the HR team, neither of whom will have had involvement in the investigation if alleged misconduct is the issue.

At any hearing the employee will be entitled to be given a full explanation of the case against them and be informed of the content of any relevant statements received from witnesses if not produced.

The employee should be allowed to set out their case and answer any allegations that have been made. The employee should also be given a reasonable opportunity to ask questions, present evidence and call any relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses. Where an employee intends to call witnesses they should give advance notice that they intend to do this.

Where an employee is unable or unwilling to attend the disciplinary hearing on the notified date, the employee will be invited to a reconvened disciplinary hearing. The employee will be advised that if he or she does not attend the reconvened disciplinary hearing without good cause, the disciplinary hearing will be held in the employee’s absence, at which the manager chairing the disciplinary hearing can make a decision based upon the evidence he or she has available.

The manager chairing the disciplinary hearing will adjourn the meeting to consider the outcome. Should there be the requirement for further investigation this will be undertaken by the chair as soon as is reasonably practicable and the hearing will be reconvened.

The Right to be Accompanied

Workers have a statutory right to be accompanied by a companion at a disciplinary meeting where such a meeting could result in a formal warning being issued, the taking of some other form of disciplinary action or any subsequent appeal hearings in relation to disciplinary action.

The chosen companion may be a fellow worker or a trade union representative or an official employed by a trade union. A trade union representative who is not an employed official must have been certified by their union as being competent to accompany the worker.

To exercise the right to be accompanied a worker must first make a reasonable request. What is reasonable will depend on the circumstances of each individual case. However, it would not normally be reasonable for workers to insist on a being accompanied by a companion whose presence would prejudice the hearing.

The companion should be allowed to address the hearing, to put and sum up the workers case, respond on behalf of the worker to any views expressed at the meeting and confer with the working during the meeting. The companion does not have the right to answer questions on the workers behalf, address the hearing if the worker does not wish it or prevent the employer from explaining their case.

It should be noted that the trade union official does not necessarily have to belong to the union with which VSA has a recognition agreement i.e. UNITE.

Step IV - Outcome of the Disciplinary Hearing

Any of the following actions may be considered appropriate outcomes, taking into account the seriousness of the misconduct or poor work performance (refer also to VSA’s Capability Procedure) and any mitigating circumstances.

The following sanctions apply only to the formal disciplinary process:

First Written Warning

Where misconduct is confirmed or the employee is found to be performing unsatisfactorily then it would be normal to issue a first written warning.

However, if an employee’s misconduct or unsatisfactory performance is sufficiently serious, it may be appropriate to move directly to a final written warning or dismissal (as below).

The warning must be confirmed in writing without unreasonable delay following the formal hearing.

The letter will confirm the basis for the warning and in instances of unsatisfactory performance, will set out the change in behaviour or improvement in performance required from the employee and the timescale. The letter will also confirm that lack of improvement during the specified review period, or any repetition of a similar problem or any other form of misconduct occurring during the life of the warning will normally lead to a final written warning being issued.

The letter will also include details of the employee’s right of appeal.

A first written warning will remain active for six months.

Final Written Warning

A final written warning will be given where the written warning has failed to bring about the required improvement within the specified timeframe or in more serious cases where a first written warning is deemed to be inadequate but where the seriousness of the matter justifies the issue of a final written warning.

A final warning must be confirmed in writing without unreasonable delay following the formal hearing

The letter will confirm the basis for the warning and in instances of unsatisfactory performance, will set out the change in behaviour or improvement in performance required from the employee. The letter will also confirm that lack of improvement during the specified review period, or any repetition of a similar problem or any other form of misconduct occurring during the life of the warning will normally lead to dismissal or action just short of dismissal.

The letter will include details of the employee’s right of appeal.

A final written warning will remain active for twelve months.

VSA reserves the right in exceptional circumstances to extend the length of time a warning is active on an employees file.

Dismissal with Notice

Dismissal with notice will normally be appropriate where final warnings have failed to bring about the required improvement to performance levels or any other breach of conduct has occurred while on a warning.

The decision to dismiss will be confirmed in writing without unreasonable delay following the formal hearing, setting out the reasons for the dismissal and also giving details of the appeals procedure. The employee will also be advised of the length of their notice period and of the date that their employment will end.

Dismissal without Notice (Summary Dismissal)

Summary Dismissal will only be appropriate in circumstances where, following an investigation and formal hearing, it is considered that the misconduct falls within the definition of gross misconduct.

The decision to summarily dismiss will be confirmed in writing without unreasonable delay following the formal hearing.

The letter will confirm the basis for the summary dismissal, effective date of termination and details of the employee’s right of appeal.

Disciplinary Action – Responsibilities

The manager chairing the disciplinary hearing will have the responsibility for imposing whatever outcome they feel appropriate. Such a decision should take place in consultation with the HR department to ensure consistency and fairness. All letters informing employees of the outcome of a disciplinary hearing should be produced in consultation with the HR Department.

Step V - Right to Appeal

Where an employee feels that the disciplinary action taken against them is wrong or unjust they have the right to appeal against that decision. They should state the grounds for their appeal in writing to the Director of HR and Training within 5 working days of the original decision.

An appeal hearing should then be arranged without unreasonable delay.

The appeal should be dealt with impartially and by a manager who has not previously been involved in the case and wherever possible is senior to the manager who chaired the original hearing.

The employee has the statutory right to be accompanied (as per above) to any appeal hearings.

At the appeal hearing the employee will be given full opportunity to state the ground(s) on which the appeal is made. Employees should note that an appeal hearing is not intended to repeat the detailed investigation of the disciplinary hearing, but to focus on specific factors which the employee feels has received insufficient consideration, such as an inconsistent or inappropriately harsh penalty; extenuating circumstances; bias of the disciplining manager; unfairness of the hearing ornew evidence subsequently coming to light.

When all the evidence has been heard the hearing will be adjourned. The manager conducting the appeal will consider the merits of the appeal, in private, before reaching a decision. The manager will inform the employee of their decision in writing as soon as possible.

The manager of an appeal hearing has the authority to quash or reduce a disciplinary penalty or, in exceptional and appropriate circumstances, to increase it, in accordance with the penalties specified in VSA’s disciplinary procedure.

Where an appeal against dismissal fails, the effective date of termination shall be the date on which the employee was originally dismissed. Where an employee was summarily dismissed without notice, VSA will be under no obligation to pay the employee for the period between the date of the original dismissal and the appeal decision.

Special Cases

Where disciplinary action is being considered against an employee who is a trade union representative the normal disciplinary procedure should be followed. Depending on the circumstances, however it is advisable to discuss the matter at an early stage with an official employed by the trade union, after obtaining the employee’s agreement.

If an employee is charged with, or convicted of a criminal offence this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or the conviction has on the employee’s suitability to do the job and the relationship with VSA, colleagues and service users.

Key Points

An employee will not be dismissed for a first breach of VSA’s Code of Conduct except in the case of gross misconduct, when the penalty will normally be dismissal without notice and without pay in lieu of notice.

An employee has the right to appeal against any disciplinary penalty.

VSA can take account of any warnings that are current when considering further disciplinary action. There is no requirement for a current warning to be in respect of a similar matter before it can be taken account of.

Written records of any disciplinary action will be held and maintained in the employees personnel file.

Gross Misconduct

Gross misconduct is misconduct of such a serious and fundamental nature that it breaches the contractual relationship between VSA and the employee. In the event that an employee is found to have committed an act of gross misconduct, VSA will be entitled to summarily dismiss that employee without notice or pay in lieu of notice.

Matters that VSA views as amounting to gross misconduct include (but are not limited to):-

• Any act of a criminal nature (particularly theft) against the company, other employees or clients
• Other offences of dishonesty
• Falsification of a qualification that is a stated requirement of the employees employment or results in financial gain for the employee
• Falsification of records, reports, accounts, expense claims or self certification forms whether or not for personal gain.
• Sexual misconduct whether or not at work
• Physical violence or abusive behaviour towards a client, members of the public and work colleagues
• Attending work while under the influence of alcohol or other substance which may affect performance and generally being in breach of any substance abuse policy adopted from time to time
• Being in the possession of illegal drugs, alcohol or other substances which can be properly obtained but are being held or used otherwise than in accordance with their established practice whilst at work
• Serious breach of company policy and procedure
• Serious violation of a safety rule or engaging in any activity which is unsafe to the employee, their colleagues, members of the public or clients
• Sleeping on duty (with the exception of sleep-in arrangements)
• Gross negligence of any kind
• Leaving the place of work without permission (Walking off the job)
• Conviction of a criminal offence or any other action that results in an employee being barred from continuing the performance of their role (Protection of Vulnerable Groups Act 2007 – Vetting and Barring scheme)
• Failing to meet a legislative requirement to perform their role (SSSC Registration, breach of immigration rules)
• Discrimination or harassment of a fellow worker or client on the grounds of sex, sexual orientation, race, disability, age, religion or belief.
• Any form of bullying and harassment towards a colleague or client.
• Serious breach of confidentiality or disclosure of information to unauthorised persons that is against the interests of the agency or the interests of a service user.
• Any significant breach of the Social Service Workers Code of Practice (Where applicable) which calls into question an employees suitability to practice.
• Abuse of VSA Computer Network and Internet Access and Security Policy

OTHER MATTERS OF MISCONDUCT

Matters that the agency considers as amounting to disciplinary offences under the code of conduct that may not constitute gross misconduct, but with continuous breach following formal warnings may result in dismissal, include but are not limited to:

• Poor timekeeping / attendance
• Unauthorised absence
• Failure to follow sickness notification procedures
• Unreasonable refusal to undertake required training or qualification necessary for their role
• Insubordination / unreasonable refusal to follow an instruction from line manager.
• Minor breach of policy or procedure
• Minor breach of health and safety
• Minor damage to company property

Such breaches from the above list ‘may’ fall under the wider definition of gross misconduct depending on the severity and nature of such misconduct.

Document Owner: Deputy Chief Executive

Revision Date: 18 March 2015Page 1 of 8