Disciplinary Policy and Procedure

Disciplinary Procedure

1. Introduction

1.1 Tendring District Council expects the employee to conduct themselves in a manner that reflects well on the organisation and high standards of professional behaviour are required at all times. Wherever possible, the procedure is designed to encourage improvements in an individual’s behaviour and not to punish. The Council prefers whenever possible to resolve problems informally such as through the use of performance management, one to one meetings, Mediation and/or Training. Although it is recognised that circumstances may require formal steps to be taken.

1.2 Managers are expected to manage employees effectively to prevent matters escalating, and the disciplinary procedures will only be used as a last resort.

1.3 Tendring District Council is committed to ensure that its disciplinary procedures comply with all relevant legislation and guidance as appropriate, including the ACAS Code of Practice on Disciplinary and Grievance Procedures.

1.4 This Policy is in accordance with the Tendring District Council Constitution

and all subsequent amendments.

2. Scope of Procedure

2.1 The Council aims to have a fair, consistent and systematic approach to the enforcement of standards of conduct for all employees. The purpose of the disciplinary procedure is to deal with unsatisfactory behaviour. The procedures will normally be followed if, in the view of Tendring District Council, the employee acts in a manner that is contrary to normal acceptable standards of conduct/behaviour or to the terms and conditions of their employment.

2.2 The procedure applies to all employees of Tendring District Council, with the exception of the Council’s Statutory Officers who are covered by National Employer’s procedures. These are agreements of the Joint Negotiating Committee (JNC) for Chief Executives and Chief Officers of Local Authorities. Cases where an employee’s ability to undertake the job they are employed to do is in question, will normally be dealt with under the Capability Procedure. Human Resources will advise on the best course of action to take in these circumstances.

2.3 Where employees are subject to a probationary period, matters of capability, competence and general suitability for the job will be assessed in accordance with the probationary scheme.

3. Application of the Procedure

3.1 No disciplinary action will be taken until the matter has been fully investigated and at every stage the employee will have an opportunity to hear the case against them and respond. The employee will also have the 4 Disciplinary Policy, Rules and Procedure – October 2017 opportunity to be represented, normally, by either a trade union official or a work colleague at any disciplinary meeting or hearings. All decisions reached will be unbiased and based on the evidence gained.

3.2 It is not possible to specify all forms of behaviour which may result in disciplinary action. Each case will be judged on its merits taking into consideration the circumstances surrounding it.

3.3 All records relating to a disciplinary will be treated as confidential and kept in accordance with Data Protection Legislation, which gives individuals the right to request and have access to certain personal data.

3.4 Managers will be aware that these procedures must be followed and advice and guidance sought from Human Resources if a disciplinary matter arises. There are substantial financial and legal risks to the Council if these procedures are not correctly followed.

4. Who Can Take Disciplinary Action

4.1 Where misconduct is reported, a decision is made by Human Resources in conjunction with the Corporate Director as to whether a Disciplinary Investigation is required. Human Resources will appoint an Investigating Officer (if appropriate), who will then be supported by a Human Resources representative.

4.2 The decision to suspend staff rests with the Corporate Director in conjunction with the Head of People, Performance & Projects. The final decision to dismiss rests with the Head of People, Performance & Projects and the Chief Executive Officer.

4.3 Human Resources may appoint an external Investigating Officer and/or Human Resources representative, if there is a lack of internal resources to ensure a swift disciplinary investigation.

5. Role of Human Resources in the Disciplinary Procedure

5.1 The role of Human Resources is as follows:

• To advise the Corporate Director ensuring that each case is dealt with fairly and consistently. This includes investigating disciplinary matters with the relevant manager.
• To ensure all disciplinary cases are investigated swiftly, this may involve seeking external Investigating Officers and/or additional Human Resources representatives.
• To attend all formal Disciplinary and Appeal Hearings.
• Co-ordinate and send all correspondence to the employee in relation to the disciplinary case to be answered.
• Compiling, with managers, the disciplinary file.
• To ensure accurate records are kept about each disciplinary case, including actions and reasons for any actions taken.
• To ensure that warnings are expunged at the correct times and that
• 5 Disciplinary Policy, Rules and Procedure – October 2017 employees are then informed.
• To keep the Disciplinary Procedure and rules under regular review; and
• To advise the Corporate Director on recommendations relating to all areas of disciplinary policy including suspensions or dismissals.

Role of the Investigating Officer in the Disciplinary Procedure

The Investigating Officer or Manager will:

• Be a suitable senior officer with suitable experience.
• Plan the investigation to ensure the matter is dealt with promptly before memories of events fade.
• Ensure sufficient time is set aside for a thorough investigation to take place.
• Co-operate with and take advice from Human Resources and throughout the investigation.
• Keep under review whether the case warrants a brief period of suspension to allow unhindered investigation.
• Investigate, collect evidence and take any witness statements as soon as possible.
• Keep evidence securely and confidentially.
• Maintain confidentiality, this includes any discussions with employees and witnesses.
• Seek advice immediately from the Council’s Press Office if there are any media enquiries in relation to a disciplinary matter. *It is the policy of Tendring District Council not to comment on staffing issues.
• Take stock of all the facts and evidence collected and decide if:
• There is a case to answer
• They can deal with the matter informally
• The matter warrants a formal hearing
• If needed, prepare a written statement of the case for later submission to the hearing.
• Keep accurate records of any action/s taken and reasons for any action/s.

6.2 All employees are required to co-operate fully with any investigation. This includes attendance at any meetings or hearings, providing full and honest answers to questions asked by the Investigating Officer and giving details of any potential witnesses, if appropriate. Any attempt to interfere with, delay or disrupt an investigation process will be treated very seriously by the Council and may warrant in itself disciplinary action.

7. The Role of the Employee in the Disciplinary Procedure

The employee is entitled to:

• Be told of the purpose of meetings, questioning, interviews or hearings.
• Confidentiality, this includes any discussions with employees and 6 Disciplinary Policy, Rules and Procedure – October 201 witnesses. The employee is also expected to maintain confidentiality throughout any investigation.
• Be told in writing of the allegations against them (see Table 1)
• To have a complete copy of the investigation report, including allappendices.
• Be given the opportunity to attend a meeting to discuss the allegations(see Table 1)
• Be given the opportunity to be represented normally by either a trade union official or work colleague.
• Give an explanation and to put their side of the matter forward.
• Be told in writing if they are to be suspended from work and the reason for this.
• Be told in writing if there is no case to answer.
• An appeal hearing at which the employee has the right to be represented by either a recognised trade union official or work colleague (see Table1).

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Table 1

Employees Rights, in accordance with the ACAS Code of Practice on Disciplinary Procedures.

Step 1: a written note to the employee setting out the allegation and the basis for it;

Step 2: a meeting to consider and discuss the allegation;

Step 3: a right of appeal including an appeal meeting.

8. Suspension is a Neutral Act

8.1 Suspension will normally occur in cases of gross misconduct or in cases where further investigation is necessary and keeping the employee in the workplace may affect evidence. A decision to suspend will be made by the relevant Corporate Director in conjunction with the Head of People, Performance & Projects. If the case involves a Corporate Director, (in agreement with the Tendring District Council Constitution; Part 3 Delegated Powers) the decision to suspend will be made by the Chief Executive in conjunction with the Head of People, Performance & Projects.

8.2 Any member of staff suspended will be notified orally at the time by the relevant Corporate Director and a member of Human Resources. The employee must be told the reason for the suspension and any special conditions that apply to the suspension. During the suspension the employee must not visit any Council workplace or be involved in any Council business. All contact will be directed through Human Resources. The suspension will be confirmed in writing within 7 working days.

8.3 Suspension will be at full pay pending investigation and actions. Full pay is defined as the pay which would otherwise have been earned during the period of suspension.

8.4 Suspension is not a disciplinary penalty; it will be regarded as a ‘neutral’ act by the employer. It is expected that it will be regularly reviewed and if an investigation lasts two weeks or more, then contact will be made with the suspended employee giving an update on progress and potential timescales. It is good practice for the Investigating Officer to remain in constant contact with the suspended employee.

8.5 The Council requires all employees to co-operate fully with any investigation and the Council reserves the right to withhold pay at any stage during a period of suspension if it is deemed that the employee is unreasonably delaying the investigation process.

9. Investigation

9.1 An investigation is essential to ensure the disciplinary matters have been handled fully and fairly. An investigation must include:

• Thorough investigation into the circumstances surrounding the suspected or alleged misconduct;
• Gathering of all related evidence, including witness statements 8 Disciplinary Policy, Rules and Procedure – October 2017
• Giving the employee a chance to offer an explanation at a relatively informal interview as part of the investigation;
• Taking a balanced view of the information that emerges; and
• Reaching a decision whether or not there are sufficient grounds for an allegation and, if so, whether it will be dealt with informally or under the disciplinary procedure.

9.2 Where it is considered that an employee’s conduct may justify disciplinary action, a formal investigation must be undertaken without unreasonable delay. If there is a financial or other serious irregularity, Internal Audit must be consulted immediately. Human Resources will then work closely with Internal Audit, to avoid, wherever possible duplication of investigation.

9.3 If there is concern over the misuse of email, intranet or internet as detailed in Tendring District Council’s Email, Intranet and Internet Policy the ICT Manager will be informed and a representative of ICT will be involved in any investigation process to provide expert technical advice. Again, both Corporate Services and Human Resources will work closely together to avoid wherever possible, duplication of investigation.

9.4 If an employee is arrested on any charge, or served with a summons on a criminal charge, whether arising out of employment or not, the status of the employee must be considered immediately. The Corporate Director, in consultation with Human Resources, will consider whether or not the alleged offence has any implications to the duties of the individual at work.

9.5 Any decision to suspend will be taken in accordance with the procedure outlined in Section 8.

9.6 If the allegation relates to a Trade Union representative, Human Resources must be informed immediately so that the Union’s full time Regional Officer can be notified. No further action, with the possible exception of suspension if appropriate, must be taken until the allegations have been discussed, after obtaining the employee’s agreement, with the Regional Trade Union Officer.

9.7 The purpose of the investigation is not to decide on disciplinary action but to establish whether there is a case to answer. If the Investigating Officer decides there is a case to answer, the allegations will be considered at a disciplinary hearing.

9.8 As part of the investigation, the Investigating Officer with a member of Human Resources, will interview the people involved and consider any relevant records or other written information. The Investigating Officer will interview the employee about their conduct, explaining the allegation and questioning the employee in detail. The Investigating Officer, in conjunction with Human Resources, will inform the employee they may be accompanied to any disciplinary meeting, normally by a trade union official or work colleague. They will explain that the purpose of the interview is to obtain information which will help the Investigating Officer decide whether there is a case to answer. The employee may ask the Investigating Officer to consider 9 Disciplinary Policy, Rules and Procedure – October 2017 other relevant evidence or, within reason, to interview people who have not yet been seen. As a matter of good practice, employees under investigation and (potential) witnesses will be asked to read and sign statements to the effect that they represent a fair record of any information given. This is not an opportunity to change answers but to confirm that a true statement of the meeting has been taken.

9.9 After the investigation is completed, the Investigating Officer will provide a report, with recommendations, to the Head of People, Performance & Projects. The employee will then be informed, in writing, by Human Resources immediately of the outcome of the investigation. If there is a case to answer, Human Resources will arrange a hearing.

10. Formal Action

10.1 Where, following the investigation, the Head of People, Performance & Projects/Corporate Director decides there is a case to answer, Human Resources will write to the employee outlining the proposed action. This will include:

• Details of misconduct, omission or failure to perform.
• The date, time and location of the hearing, allowing at least 12 working days’ notice.
• The name of the Investigating Officer who will present the management case.
• The right to produce written statements. Employees must give Human Resources four copies of any written statements for circulation to the panel officers. Any written statements produced by either party shall be circulated to the other party and to the person hearing the case at least 5 working days in advance of the hearing; and
• The right to state their case, to produce witnesses and to be represented or accompanied at all stages normally by a Trade Union Official or work colleague. Employees are required to co-operate fully with any disciplinary investigations and meetings and must attend any meetings or hearings arranged by the Council. If in very exceptional circumstances the employee is unable to attend the hearing, he or she may be invited to decide whether to allow a representative to put the case on his or her behalf on written submissions. Any witnesses that are employed by the Council must inform Human Resources, in writing, that they will be party to the investigation process and formally request time off work to attend any disciplinary meetings/hearings.
• If the employee is absent through sickness on the date of the hearing, good practice is to allow at least one postponement. Each case will be considered on an individual basis; however the employee will be aware that a hearing could take place in their absence.

10 Disciplinary Policy, Rules and Procedure – October 2017

11. The Disciplinary Hearing

11.1 The Panel will normally be a Corporate Director, a representative from Human Resources and another Independent Manager. In exceptional circumstances, in particular to deal with matters swiftly, external panel member/s may be appointed to hear a case. Hearings will always consist of a least three panel members, one of whom will be appointed as Chairperson.

11.2 The Chairperson hearing the case will:

• Conduct the meeting as a fact finding process, ensuring good order and natural justice. Decide any disputes about procedure.
• Consider and evaluate the evidence presented by both parties.
• Judge the facts of the case on the balance of probabilities.
• Consider how serious an offence is.
• Take into account any advice given by Human Resources or a technical adviser.
• Consider what action (if any) to take to improve conduct.
• Apply any appropriate disciplinary sanction and explain any conditions that apply to it.
• Ensure that adequate notes and taken and records kept.
• Confirm the decision in writing and set out any rights of appeal within 5 working days of the ending of the hearing.

11.3 The employee is entitled to:

• The opportunity to be represented, normally by a trade union official or work colleague.
• Hear the case against them.
• Explain their side of events.
• Bring witnesses to give evidence relevant to the case. Witnesses will be kept to a minimum.
• Question the evidence of witnesses.
• A letter confirming the decision, the key issues considered in reaching the decision and any rights of appeal.
• Appeal against any sanction in accordance with the Appeal Policy.

12. Types of Disciplinary Action

12.1 Informal action

Mediation maybe deemed appropriate

• For conflict involving colleagues of a similar job or grade, or between a line manager and their team
• To rebuild relationships
• To address issues such as relationship breakdown, personality clashes, communication problems, bullying and harassment.

11 Disciplinary Policy, Rules and Procedure – October 2017

Training

Where an allegation is identified as a lack of awareness, then additional training can be offered. Such as in the cases of bullying and harassment, and any form of discrimination. Application of Performance Management arrangements (see Capability Procedure).

Letter of Expectation

• Purpose is to counsel, communicate, and to identify or clarify expected behaviour in performance of job duties;
• Support is offered by way of training and/or other resources;
• Develops, with the employee’s input, mutual goals to encourage employee’s commitment to change;
• Assumes behaviour will change in the future, when an employee understands what is expected and is supported in an effort to change;
• A review period is set to give feedback on progress of change;
• Remains on the employee’s personnel file indefinitely.

12.3 Written Warning

A first written warning may be issued for a more serious offence which does not justify a final warning or dismissal or if there is a repetition of minor offences. The Disciplinary Panel will make a decision as to any disciplinary action, which the employee will be informed, in writing by Human Resources:

• What disciplinary action has been decided
• Why the disciplinary action is being taken;
• What conduct or improvement will be expected in future and how this will be monitored;
• What further disciplinary action will be taken if there is no improvement or if there is a further breach of discipline;
• The duration of the warning; and
• The right to appeal against the warning.

Employees will be required to sign and return a copy of the warning which will be held on their personal files.

A written warning will be expunged after six months.

12.4 Final Written Warning

A final written warning may be issued where the employee’s misconduct, omission or, in certain circumstances, failure in performance gives further cause for concern, or where initially the matter is of a more serious nature but falls short of gross misconduct.

Reference will be made to any current previous warnings, and the employee must understand that any further breach of conduct could result in dismissal.

Human Resources will confirm all these details in writing.

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A final written warning will be expunged after 12 months.

12.5 Dismissal with and without Notice

Where a final warning does not bring about stated improvements, the employee will be required to attend a further disciplinary hearing and, following any necessary investigations, unless there are exceptional circumstances, will be dismissed subject to the appropriate notice period. Details of the reasons for dismissal and appeal rights will be included in the employee’s dismissal letter which will be issued by Human Resources following the same procedure as the warning letters.

An employee may also be dismissed where they have committed an act of serious misconduct, omission or, in certain situations, a significant failure in performance. If, after the investigation and on the balance of probabilities, this is established and the necessary trust between employer and employee is broken leading to a situation which, in the opinion of the Corporate Director in consultation with Human Resources, makes continuous employment impossible, dismissal subject to notice may take place.

Under delegated powers, as outlined in Part 3 of the Constitution, the dismissal of staff up to Corporate Director level is delegated to the Corporate Director (within their areas of responsibility) in consultation with the Head of People, Performance and Projects.

The dismissal of a Corporate Director is delegated to the Chief Executive in consultation with the Head of People, Performance and Projects. The dismissal of any of the Council’s three Statutory Officers will be managed by a sub-committee of the Human Resources Committee, in consultation with the Head of People, Performance and Projects.

Where, after investigation and on the balance of probabilities gross misconduct is established, the employee may be dismissed without notice.

13. Other Options for Disciplinary Action

• Demotion or forced transfer of an employee to a lower graded post.
• The withholding of an annual increment.
• Allowing employees to resign.
• Removal of Acting Up Benefits.
• Removal of Flexi Time.
• Change of working pattern.
• Change of work base.
• Deduction of Pay
• In addition to disciplinary action, as outlined above, Tendring District Council may seek recovery of monies or property legitimately due to it from employees.

14. Informing the Employee

14.1 All disciplinary actions as a result of a hearing will be confirmed in writing from the Chair of the Disciplinary panel, and will state:

• The nature of the misconduct, omission or, in certain situations, failure in performance, some other substantial reason;
• The stage reached in the procedure, ie written warning;
• What is expected for the future, concerning both management and employees, the period over which improvement must take place, including any review dates, and whom employees will contact if they need assistance:
• What might happen if the matter proceeds to the next stage; and
• The appeal rights; the time limit thereon and how the appeal will be made.

14.2 Employees will be required to sign and return a copy of any such letter.

14.3 All disciplinary papers including the employees, witnesses and panel members will be kept confidential during the disciplinary processes and then be returned to Human Resources, following the conclusion of any disciplinary action.

14.4 Except in the case of established gross misconduct or where a final written warning has been unsuccessful, the procedures provide for employees to try to improve their conduct and/or performance. If an employee has personal/domestic difficulties, or if the problem is caused by something beyond the employee’s control, the manager will offer reasonable assistance.

14.5 Where an investigation results in no disciplinary action being taken, all details of such action will be expunged from the employee’s personal file and the employee will be informed accordingly.

14.6 Normally, a final written warning will be disregarded after a maximum of 12 months from the date of the Chairperson’s decision. However, exceptionally the Chairperson may wish at the onset to stipulate a longer maximum review period than 12 months because of the circumstances of the case, up to a period of 24 months e.g. if the case relates to repeated breaches of the same or similar disciplinary rules.

15. Appeals Procedure

15.1 Refer to Appeal Policy

16. Disciplinary Records

16.1 Employees subject to disciplinary action will have access to all records and correspondence on file. After satisfactory completion of the specified period all records will be marked as ‘Out of Time’ on the employee’s personal file but retained with Human Resources.

16.2 Access to personnel records, will be in accordance with the Corporate Data Protection Policy.

17. Interpretation

17.1 Any questions regarding the interpretation of this policy will be directed to Human Resources.

Appendix A

Examples of Misconduct

Please note these examples are neither exclusive nor exhaustive.

Minor or Serious Misconduct (depending upon the circumstances or persistency)

• Poor timekeeping;
• Unjustifiable absence from work failure to comply with procedures covering the notification of sickness absence;
• Where an employee without reasonable and sufficient cause, disobeys, omits or neglects to carry out reasonable orders whether given orally or in writing;
• Failure to disclose involvement in a criminal or civil case (including County Court judgements)
• Poor standards of personal hygiene
• Acts of minor insubordination;
• Neglect of duty;
• Non compliance with the e-mail, intranet and internet policy (including excessivepersonal use of any means of electronic communication)
• Neglect of health and safety requirements at work;
• Non-compliance with financial regulations or standing orders;
• Smoking on Council premises; and
• Use of paid working time for purposes unrelated to the job;
• Failure to follow Council procedures, including financial procedures and Human Resource procedures
• Failure to follow reasonable management instructions
• Non compliance with the smoking policy

Gross Misconduct

• General misconduct (e.g., insolent, aggressive, drug related or drunken behaviour, bullying, harassment, excessive foul language, rudeness, explicit sexual, racial or other discriminatory behaviour);
• Deliberate failure to disclose any personal interest which may be incompatible with the satisfactory discharge of the duties and responsibilities of the job;
• Behaviour of a serious or criminal nature outside the employment of the Council, the nature of which, in the opinion of the Corporate Director, makes continued employment impossible;
• Committal to prison for an offence the nature of which, or the length of sentence imposed, in the opinion of the Corporate Director, makes continued employment impossible;
• Serious professional or similar negligence, misconduct, omission or, in certain situations, failure in performance and/or behaviour to a reasonable and acceptable standard;
• Theft or misappropriation of cash or property belonging to Tendring District Council, fellow employees or persons receiving a service from Tendring District Council;
• Deliberate and wrongful disclosure of security passwords or illegal actions in connection with the e-mail, Intranet or internet;
• Serious failure to disclose interest in Council contracts;
• Misuse of employee’s office for personal gain;
• Fraudulent falsification of timesheets, bonus sheets, financial claims for reimbursement, flexible working hours time or similar documents to which the employee is not entitled;
• Dealing or wrongful possession of illegal drugs;
• Threatened or actual physical assault;
• Fighting or riotous behaviour and similar actions;
• Breaches of confidence and trust so serious as to destroy the employment contract and make any further working relationship and trust impossible;
• Serious breaches of safety regulations in contravention of the Health and Safety Work Act and/or relevant codes of practice and safe methods of work;
• Malicious damage to Council property;
• False statements made in applications for employment designed to ensure appointment;
• The contravention of the Asylum and Immigration Act, e.g. by producing fraudulent documentation;
• Deliberate failure to disclose unspent criminal convictions or, in respect of employment, exempt under the terms of the Rehabilitation of Offenders Acts, failure to disclose any conviction (including caution or bind over) at any time before or during employment with Tendring District Council;
• Aiding and/or abetting the commission of an act of gross misconduct.

Appendix B

Disciplinary Hearing Procedures