Disciplinary Procedure - Notes for guidance

Only effective for cases which commenced before 15th February 2012.

These notes must be read in conjunction with the Disciplinary Procedure adopted by Court on 14 March 2001.

Index:

1. Representation

A trade union officer may be a lay trade union officer or the union workplace representative, or a full-time officer employed by a trade union. The lay trade union officer or workplace representative should have been certified by their union as having experience of, or having received training in, acting as a worker's companion at disciplinary hearings. There is no duty on a fellow worker or trade union official to accept a request to accompany a worker and no pressure should be brought to bear on a person if they do not wish to act as a companion. Legal representation is not permitted. Witnesses cited in an investigation would not normally have the right to such representation

The representatives will be able to participate fully in the hearing, and provide advice during it, but will only be able to answer questions on behalf of the person they are representing in agreed circumstances. If a chosen companion is not available for good reason, the hearing must be delayed for up to five working days until the companion is available.

2. Training

It is important that all those involved in investigating an allegation and conducting Disciplinary Hearings should have received training in the use of this Procedure. Those who are not trained will not be allowed to operate this Procedure. The advice of Human Resources Service should be sought, if appropriate.

3. General provisions (Medical Reports)

Any medical reports are confidential to the University's Occupational Health Doctor, who may be requested to make relevant interpretations for legitimate purposes of this Procedure.

4. Role of Human Resources Service

The role of Human Resources Service is to advise on the operation and application of this Procedure. It should also take a proactive role in ensuring consistency of application across the University.

Human Resources must be notified of all formal disciplinary matters raised. The relevant Human Resources Manager will monitor the matter through all necessary stages. At the end of each stage, a complete record of all appropriate documentation generated during the various stages of the formal procedure must be passed to the Human Resources Manager by the Investigating Manager and/or Head of School/RI/Service.

5. Guidance for investigating managers

Investigation of any incident is a responsible and serious undertaking. It is important that you prepare and are supported adequately. Seek guidance from your HRM as necessary.

Process

Starting point - read the Disciplinary Procedure & these Guidelines; HoS/RI will contact member of staff subject of the investigation to confirm investigation underway and specify the allegations.

Guiding principles - ensure impartiality, fairness & confidentiality and avoid discrimination. Consider whether you have a potential conflict of interest in taking on the investigation eg. if one of the principal parties is well known to you to an extent precluding your involvement in the case (eg. personal relationships).

Disciplinary Skills training - ensure have been on relevant SDS or equivalent course in advance; if not, contact HRM to ensure you receive coaching.

Equal Opportunities training - ensure have been on relevant SDS or equivalent course in advance; if not, contact HRM to ensure you receive coaching.

Role - investigate the evidence in relation to the allegations, give the member of staff subject of the investigation the opportunity to state his/her case in respect of the allegations, establish the facts, develop conclusions and link them to the recommendation(s) you wish to promote, then recommend what action should be taken (see below). Balance speed and sensitivity with thoroughness, to ensure a careful and reasonable investigation is achieved.

Allegations - establish the elements & issues constituting the allegations, then prepare in advance the question sets relevant to explore those issues with each witness and the member of staff subject of the investigation.

Order - establish who you need to interview and in what order; issue invitations and provide sufficient notice of meetings.

Administration - arrange secretarial support from School/RI/Service to appropriately record interviews with witnesses; produce notes of these interviews timeously before the parties' recollections fade; ensure notes of interviews are agreed as an accurate record and signed to verify same. Where statements are provided these should be signed also. The extent of the note taking should reflect the complexity of the case though it is not expected that interviews are recorded verbatim. The recording methodology should be agreed with the witness in advance of the interview to ensure clarity of expectations.

Representation - colleague or TU rep for the member of staff subject of the investigation ; not applicable for witnesses; if witnesses demand representation then consult HRM; legal representation is not permitted.

Role of representative - normally limited to provide advice to the member of staff subject of the investigation and make statements to Investigating Manager, but not normally expected to answer questions on behalf of the member of staff subject of the investigation unless with prior agreement (discuss with HRM if this arises).

Documentation - consider what documentary evidence (eg. relevant procedures or communications) you need to gather; copies should be supplied to the member of staff subject of the investigation so they are aware of evidence against them and can respond as appropriate.

Witnesses - establish their rights and responsibilities at the start; use open/closed questions; develop question sets in advance; where common issues are explored with several witnesses ensure same questions are consistently asked of all; establish/clarify chronology of events; always ask at end if they have any further info they think you should have related to the allegations and evidence they have submitted; ensure they are aware they could be called to a hearing to elaborate on the evidence or give new evidence related to the case; ensure they are aware that the member of staff subject of the investigation will get sight of their (the witnesses') statement(s) should it proceed to a hearing; always thank witnesses for their contribution and indicate whether that is anticipated to be the end of their involvement in the case; if continued involvement is anticipated attempt to clarify the expected extent of such involvement.

Anonymous informants/evidence - where staff wish to retain anonymity, statements should be in writing, available to the member of staff subject of the investigation, and give details of time/place/dates as appropriate. The Investigating Manager should enquire as to the character of the informant and assess the credibility and weight to be attached to their evidence. Where documents are received anonymously they should be treated similarly to evidence from anonymous informants eg. made available to the member of staff subject of the investigation and assessed for credibility and weight attached to them.

Refusal? - if witnesses refuse to give statements or answer the questions you wish to pose, discuss with HRM.

Criminal? - If the investigation uncovers evidence of potential criminal offences contact HRM for advice asap. If a confession is made ensure it is timed, dated and signed by yourself and the employee; any disagreement with the record should be similarly recorded. Thereafter stop proceedings immediately and contact your HRM.

Additional issues - if such are raised (eg. harassment, personal circumstances etc.) then explore only insofar as they are relevant to the case.

Medical issues - if the member of staff subject of the investigation , or their representative, indicates during the investigation that health issues (eg. stress from the disciplinary process) have a bearing on the case, explore these provisionally with them to elucidate their immediate relevance then discuss how to proceed with HRM.

Sensitive Issues - such as harassment should be documented and explored with care. Witnesses may be reluctant to discuss such matters, or the member of staff subject of the investigation may raise them in explanation or mitigation, or fear of subsequent retribution may be an issue. Discuss how to proceed with HRM as necessary.

Suspension - if at any stage during the investigation you consider there are grounds for suspending the member of staff subject of the investigation discuss this with HRM immediately.

Timeous - ensure the investigation is completed in a reasonable timeframe, preferably within 5 working days, to ensure the evidence is gathered before recollections fade.

Conclusions: conjecture or opinions - no; balance of probabilities - yes, supported by facts and/or rationales.

Recommendation options - (i) no further action appropriate, or (ii) informal action re: coaching or guidance without a disciplinary hearing, or (iii) disciplinary hearing necessary. Raise other issues requiring separate investigation or further consideration as appropriate. Do not recommend what level of penalty you may consider appropriate and do not recommend whether you consider the member of staff subject of the investigation guilty of the allegations. Do recommend whether there is evidence in support of the allegations sufficient to warrant a hearing.

Performance issues - should be dealt with under the Competence Procedure unless the reason for lack of performance is a conduct one eg. deliberate non-performance, lack of effort or obviating responsibility.

Report - standard proforma for report is available from HRM; provide report to HoS/RI and copy to HRM upon completion.

Meetings

Ensure meetings will not be subject to interruptions.

Introduce those present & discuss representation rights/desires as appropriate.

Explain purpose of meeting, allegations under consideration (specify them), role of Investigating Manager, format for meeting (including administrative provision), and expected next steps thereafter.

Highlight expectation of honesty and confidentiality.

Note statements from investigation to be signed to confirm agreement.

Advise witnesses that their statements may later be made available to the member of staff subject of the investigation and that they may have to attend a subsequent disciplinary hearing should there be one.

At the conclusion of the interview with the member of staff subject of the investigation, advise him/her of what your intended next steps are (eg. write report or interview other witnesses etc.).

At the conclusion of each interview, summarise the evidence you consider to have been given to clarify your understanding of the facts of the situation. Offer opportunity to add further relevant information.

6. Investigation

Where a disciplinary matter arises, the employee may be suspended from work for as long as necessary, on full pay, pending the outcome of an investigation into the alleged misconduct. Such action should only be used in the most serious of instances.

Only after an investigation will the Investigating Manager decide whether or not there is a disciplinary case to answer.

The Investigating Manager and the individual (normally the Head of School/RI/Service) conducting any subsequent disciplinary hearing must be different people.

7. Disciplinary hearing

The Head of School/RI/Service's secretary will be the person normally present to take notes. Whichever person fulfils this role cannot be called as a witness to the proceedings. The room used for the hearing will be laid out in a manner which is not intimidating, e.g. only the Head of School/RI/Service and Human Resources Manager face those presenting their cases. No discussion of the case (apart from clarification) will take place between the Head of School/RI/Service and the Investigating Manager outwith the hearing.

The proceedings will be conducted by the Head of School/RI/Service in accordance with the guidance notes detailed below:-

7.1 The Head of School/RI/Service should introduce those present. Those in attendance will normally include the Head of School/RI/Service, the Human Resources Manager, the Investigating Manager, the member of staff concerned and the person accompanying or representing him/her.

7.2 The Head of School/RI/Service should explain the purpose of the disciplinary hearing and detail the complaint(s) levelled against the member of staff. He/she should also explain the procedure to be followed during the hearing.

7.3 Normally only documentation, written/typed statements or evidence that have been made available to both parties prior to the hearing will be admissible. However, where new documentation becomes available, a recess or adjournment may be necessary for the parties to acquaint themselves with this material.

7.4 The Investigating Manager should present the outcome of his/her investigation, calling witnesses as appropriate.

7.5 The member of staff and the person accompanying or representing him/her should be allowed to question any witnesses called, or query any documentation, as may the Head of School/RI/Service and Human Resources Manager.

7.6 The member of staff and the person accompanying or representing him/her will have the opportunity to present his/her case in response to the evidence.

7.7 The member of staff or the person accompanying or representing him/her may call on any witnesses as appropriate.

7.8 The Head of School/RI/Service and, if necessary, Human Resources Manager may question the member of staff, the person accompanying or representing him/her and any witnesses called.

7.9 Clarification may be sought from anyone present at any time during the hearing.

7.10 The Head of School/RI/Service may formally adjourn the hearing in response to a request to do so at any time.

7.11 The member of staff or the person accompanying or representing him/her should be given the opportunity to sum up.

7.12 On completion, the hearing will be closed, for the Head of School/RI/Service to deliberate. If any points require further clarification, the member of staff and his/her representative may be recalled.

7.13 When deciding whether a disciplinary penalty is appropriate and what form it should take, the Head of School/RI/Service, in consultation with the Human Resources Manager, should take into account all the facts and circumstances, including the member of staff's general disciplinary record, position, length of service and any special circumstances which might make it appropriate to adjust the severity of the penalty.

7.14 In taking into account a member of staff's general disciplinary record, the Head of School/RI/Service will be entitled to consider any lapsed warnings. However the existence of a lapsed warning will not entitle the Head of School/RI/Service to automatically impose the next level of disciplinary penalty. For example, simply because a member of staff has a lapsed written warning on his/her personnel record does not mean that the appropriate disciplinary penalty will be a final written warning. An oral warning or further written warning may be appropriate in all the circumstances. By contrast it may be appropriate to impose a more serious disciplinary penalty on a member of staff who has a history of misconduct (e.g. a series of lapsed oral warnings on his/her personnel record).

8. Levels of disciplinary action

Level 1 - Oral Warning

Level 1 will be invoked where:

it is considered that the conduct of a member of staff falls below an acceptable standard;

the member of staff has committed a minor offence. Where it is found that such a disciplinary offence has occurred, the outcome will normally consist in the first instance of a oral warning, written confirmation of which will be given to the employee and
a copy placed on his/her personal record within Human Resources Service. Employees should be advised according to the provisions of
paragraph 5.6 (i) - (vii) "Notification of Outcome".

Level 2 - Written Warning

Level 2 will be invoked where:

there is no improvement in the conduct complained of;
another related offence has occurred during the currency of a previous warning;
the conduct is of such seriousness that an oral warning is not appropriate.

Where it is found that such a disciplinary offence has occurred a written warning will be given to the employee
and a copy placed on his/her personal record within the Human Resources Service. Employees should be
advised according to the provisions of paragraph 5.6 (i) - (vii) "Notification of Outcome".

Level 3 - Final Written Warning

Level 3 will be invoked where:

there is no improvement in the conduct complained of;
another related offence has occurred during the currency of a previous warning;
the conduct is of such seriousness that Level 1 and 2 actions are not appropriate.

Where it is found that such a disciplinary offence has occurred a final written warning will be given to the employee and a copy placed on his/her personal record within the Human Resources Service. Employees should be advised according to the provisions of paragraph 5.6 (i) - (vii) "Notification of Outcome".

Level 4 - Dismissal

Level 4 will be invoked where:

there is no improvement in the conduct complained of;
another offence has occurred during the currency of a previous warning; and
a final written warning has already been issued.

Where dismissed the member of staff will receive a written statement of the reasons for his/her dismissal
and a reiteration of his/her right of appeal.

However, should the Head of School/RI/Service consider that in light of all the circumstances, dismissal is not warranted, an alternative to dismissal will be imposed in the form of extending the period of the existing final written warning for a further twelve months.

Level 5 - Summary Dismissal

Level 5 will be invoked in cases of gross misconduct where following investigation, it has become clear that recourse to the earlier stages of this Procedure is not appropriate. In circumstances where it is considered that to allow a member of staff to remain at work is dangerous or undesirable and, where practical, after consultation with the employee's representative, a member of staff may be suspended with pay, pending an urgent investigation of the circumstances of the case. This investigation should be completed as soon as possible following the suspension. Suspension with pay will be effected by the Head of School/RI/Service following consultation with a Human Resources Manager, but in exceptional circumstances suspension with pay may be effected on the authority of a Human Resources Manager. Before the point where suspension with pay is effected, the member of staff should be accompanied by a representative, if available. This level will only be used in exceptional circumstances and will not be used to bypass the procedure outlined in Level 1, 2, 3 and 4 above.
Where special provision is made for shift-workers and workers in isolated locations, this may be effected by the appropriate manager. Within 24 hours the appropriate manager will advise the Human Resources Manager, who will advise the Trade Union representative of the suspension of the member of staff.

Should the Head of School/RI/Service consider after investigation that disciplinary action short of dismissal is appropriate, the decision may result in an alternative to dismissal being imposed in the form of a final written warning indicating that any further infringement will result in dismissal.
Some examples of gross misconduct which might constitute good cause for summary dismissal are listed below. This list is not intended to be exhaustive.

serious negligence resulting in unacceptable loss, damage or injury
intentional serious breach of University regulations or improper conduct in relation to job responsibilities
bringing the University into serious disrepute in your capacity as employee
serious breach of University code on harassment
theft, fraud or deliberate falsification of records or University documents
assault or attempted assault or physical violence
malicious damage to University property
intentional and or malicious refusal to comply with reasonable instructions or requests made by a line manager within the work place
incapability to work due to being under the influence of alcohol/illegal substances, having regard to the University's obligations under its Alcohol, Drugs and Substance Misuse Policy and Procedures
any breach of health and safety rules which places the member of staff or others in danger
intentional misuse of confidential information of the University
fraudulent misuse of the University's property or name
unauthorised entry to computer records.

9. Records

Records and documents should be kept in a confidential file and not be disclosed to or discussed with any person who is not directly involved in the investigatory/disciplinary procedure.

10. Time limits

A note of any oral warning or a copy of any written warning will be retained on the member of staff's file held by Human Resources Service for all time. However, provided the member of staff has received no other warning during that period:

A formal oral warning will normally lapse 6 months after issue.
A written warning will normally lapse 9 months after issue.
A final written warning will normally lapse 12 months after issue.

21/04/2004

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