Dismissal and Disciplinary Procedure

Introduction

It is necessary for the proper operation of the organisation’s business and the health and safety of the organisation’s employees that the organisation operates a disciplinary procedure. The following procedure will be applied fairly in all instances where disciplinary action is regarded as necessary by the organisation’s management save to the extent that a minor reprimand is given for any minor act of misconduct committed by an employee.

The organisation reserves the right to implement the procedure at any stage as set out below taking into account the alleged misconduct of an employee. Employees will not ordinarily be dismissed for a first disciplinary offence.

Where time limits are referred to in the course of this procedure they may be varied by agreement between the employee and the organisation.

Employees have the right to be accompanied at a formal disciplinary hearing by a fellow worker or trade union official of their choice.

Matters that the organisation views as amounting to disciplinary offences include (but are not limited to):

  • persistent bad timekeeping;
  • unauthorised absence;
  • minor damage to the organisation’s property;
  • failure to observe the organisation’s procedures;
  • abusive behaviour;
  • unreasonable refusal to follow an instruction issued by a manager or supervisor;
  • poor attendance;
  • data protection breaches and misuse of the organisation’s information;
  • smoking [or use of an e-cigarette] in non-designated areas of the organisation’s premises; and
  • bribery offences under the Bribery Act 2010.

Investigation

An employee’s supervisor or manager will promptly and thoroughly investigate any matter that is reasonably suspected or believed to contravene any of the organisation’s policies or rules or may otherwise be a disciplinary matter. The employee will be informed as soon as possible as to the fact of an investigation and when it has been concluded.

There may be instances where suspension with pay is necessary while investigations are carried out. The organisation has the right to suspend with pay where there are reasonable grounds for concern that evidence may be tampered with, destroyed or witnesses pressurised before the disciplinary

hearing, or if there is a potential risk to the business or other employees or third parties in allowing the employee to remain at work.

Depending on the circumstances of the case, the employee may be invited to attend an investigatory interview. If such an interview is held prior to a disciplinary hearing, the employee will be informed at the outset that the interview is an investigatory interview. There is no right for employees to be accompanied at a formal investigatory interview. The organisation reserves the right to dispense with an investigatory interview and to proceed directly to a formal disciplinary hearing.

Procedure

Where, upon completion of an investigation, there are reasonable grounds to believe that an employee has committed an act of misconduct, the employee will be invited to attend a disciplinary hearing before the employee’s department manager or manager of a similar level to the departmental manager.

In the event of a disciplinary hearing taking place the organisation will:

a. give the employee a minimum of [two] working days’ advance notice of the hearing;

b. tell the employee the purpose of the hearing and that it will be held under the organisation’s disciplinary procedure;

c. explain the employee’s right to be accompanied at the hearing by a fellow worker or trade union official;

d. give the employee written details of the nature of his/her alleged misconduct; and

e. provide to the employee all relevant information (which should include statements taken from any fellow employees or other persons that the organisation intends to rely upon against the employee) not less than [two] working days in advance of the hearing.

Where the employee is unable to attend a disciplinary hearing and provides a good reason for failing to attend, the hearing will be adjourned to another day. The organisation will comply with (a) above in respect of giving notice of the rearranged hearing. Unless there are special circumstances mitigating against it, if the employee is unable to attend the rearranged hearing, the rearranged hearing will take place in the employee’s absence. The employee’s fellow worker or trade union official may attend in such circumstances and will be allowed the opportunity to present the employee’s case. The employee will also be allowed to make written submissions in such a situation.

Where the chosen companion is unavailable on the day scheduled for the hearing, it will be rescheduled, provided that the employee proposes an alternative time within five working days of the scheduled date.

Role of Companion

The employee’s chosen companion has the right to address the hearing to put the employee’s case, sum up the case and respond on the employee’s behalf to any view expressed at the hearing. The companion may also confer with the employee during the hearing. However, there is no requirement for the organisation to permit the companion to answer questions on behalf of the employee, or to address the hearing where the employee indicates that he/she does not wish this.

Recording of Meetings

The employee, or any person acting on his/her behalf, is not normally permitted to record electronically any meeting held by the organisation as part of the disciplinary process. This is to encourage openness and full participation by all parties during meetings. Any breach of this provision may lead to disciplinary action against the employee, up to and including dismissal.

In certain limited circumstances, the organisation may permit the meeting to be recorded electronically. For example where the employee is disabled, it may be appropriate as a reasonable adjustment under the Equality Act 2010. Where the organisation permits the meeting to be recorded electronically, it will take responsibility for making the recording.

Data Protection

The organisation processes personal data collected during the investigation stage and any subsequent stages of disciplinary action in accordance with its data protection policy. In particular, data collected as part of the investigation stage and any subsequent stages of disciplinary action is held securely and accessed by, and disclosed to, individuals only for the purposes of completing the disciplinary procedure. Inappropriate access or disclosure of employee data constitutes a data breach and should be reported in accordance with the organisation’s data protection policy immediately. It may also constitute a disciplinary offence, which will be dealt with under this disciplinary procedure.

Disciplinary Hearing

A disciplinary hearing will normally be conducted by the employee’s department manager together with the organisation’s HR officer (the panel). Any member of management responsible for the investigation of the disciplinary offence(s) shall not be a member of the panel, although such managers may present any supporting facts and material to the disciplinary hearing. The employee will be entitled to be given a full explanation of the case against him/her and be informed of the content of any statements provided by witnesses. The employee will be able to call his/her own witnesses. He/she will be permitted to set out his/her case and answer any allegations. The employee will be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. He/she will also be given the opportunity to raise points about any information provided by witnesses. Where the organisation intends to call relevant witnesses it will give the employee advance notice of this. The employee must also give advance notice if he/she intends to call relevant witnesses.

The organisation may adjourn the disciplinary proceedings if it appears necessary or desirable to do so (including for the purpose of gathering further information). The employee will be informed of the period of any adjournment. If further information is gathered, the employee will be allowed a reasonable period of time, together with his/her fellow worker or trade union official, to consider the new information prior to the reconvening of the disciplinary proceedings.

As soon as possible after the conclusion of the disciplinary proceedings, the employee’s department manager will convey the decision of the panel to the employee and will also inform the employee what disciplinary action, if any, is to be taken. The decision will be confirmed in writing. The employee will be notified of his/her right of appeal under this procedure.

Disciplinary Action

Where, following a disciplinary hearing, the organisation establishes that the employee has committed a disciplinary offence, the following disciplinary action may be taken:

a. Where a minor offence or offences have been committed, a recorded oral warning may be given. The warning will ordinarily state that any further misconduct will render the employee liable to further, more severe disciplinary action. The employee should be informed of the period that the warning will remain “live”. During this period, the organisation may rely on such a warning in the event of further misconduct on the part of the employee.

b. Where either a more serious disciplinary offence has been committed or further minor offences have been committed by an employee following a recorded oral warning that remains “live”, the employee will receive a first written warning. The warning will:

i. set out the nature of the offence committed;

ii. inform the employee that further misconduct is liable to result in further disciplinary action under this procedure;

iii. specify the period for which the warning will remain “live”, after such period the organisation will review the warning/the warning will automatically lapse; and

iv. state that the employee may appeal against the warning.

c. Where a serious disciplinary offence amounting to gross misconduct has been committed, thereby justifying summary dismissal, but the organisation decides, after taking into account all appropriate circumstances, that a lesser penalty is appropriate, or, where an employee commits further disciplinary offences after a first written warning has been issued and remains “live”, a final (or combined first and final) written warning may be given. Such a warning will:

i. set out the nature of the offence committed;

ii. inform the employee that further misconduct is likely to result in his/her dismissal; and

iii. state that the employee may appeal against the warning.

d. Where the employee has committed further acts of misconduct (these being acts of misconduct other than gross misconduct) following a final written warning given under c. above, the employee may be dismissed with notice or with pay in lieu of notice.

e. Where the organisation establishes that an employee has committed an act of gross misconduct, the employee may be summarily dismissed.

f. Where a final written warning is given to an employee under c. above, the organisation may also impose on the employee:

i. disciplinary suspension;

ii. demotion;

iii. in line with any provision in the contract of employment, stoppage of pay for such period as the organisation thinks fit in the circumstances subject to a maximum of [number of weeks]; or

iv. in line with any provision in the contract of employment, transfer to a job of a lower status.

The above sanctions may be imposed in conjunction with other forms of disciplinary action, or as an alternative to dismissal.

Appeal

An employee may appeal against any disciplinary sanction imposed against him/her, with the exception of an informal oral warning. The appeal will be heard by a senior manager who has not been involved in the decision to impose the disciplinary sanction on the employee. The senior manager is obliged to consider any representations made by the employee, the employee’s fellow employee or trade union official and those of the manager who conducted the investigation and the manager who conducted the disciplinary hearing and imposed the disciplinary sanction. The senior manager hearing the appeal must decide on the basis of both sets of representations, together with any subsequent facts that may have come to light, whether or not to uphold the disciplinary sanction. In the event that the senior manager finds for the employee, the senior manager shall allow the appeal and shall remove all records of the disciplinary sanction from the employee’s record. In the event that the senior manager does not accept the representations made by or on behalf of the employee, the senior manager must uphold the disciplinary sanction.

When lodging an appeal, the employee should state:

a. the grounds of appeal; and

b. whether he/she is appealing against the finding that he/she has committed the alleged act or acts of misconduct, or against the level of disciplinary sanction imposed.

The employee must provide written notice of the appeal within five working days of being informed of the disciplinary sanction being imposed against him/her.

Appeal hearings will normally take place within 14 days of receipt of the employee’s written notice of appeal.

Upon completion of the appeal, the senior manager conducting the hearing will convey his/her decision to the employee. The decision will be confirmed in writing within one week. The organisation’s decision at the appeal is final. The employee may refer the matter to the final appeal stage.

As with the first appeal, for the final appeal stage the employee should put the grounds of appeal in writing and send this to the senior manager who conducted the first appeal meeting/the HR officer. The employee must provide written notice of the appeal within five working days. An appeal hearing will be arranged with [the managing director/senior director and will take the same form as the first appeal hearing. The result will be notified to the employee in writing within one week of the final appeal hearing. The outcome will be final.

Where there is an appeal against a dismissal by the panel, the panel’s decision to dismiss will have had immediate effect and, therefore, if the dismissal is by notice, the period of notice will already have commenced on the date that the decision was given by the panel. If the panel’s decision was to dismiss the employee summarily without notice, the organisation will be under no obligation to reinstate or pay the employee for any period between the date of the original dismissal and the appeal decision and the original date of termination will stand. In the event that the panel’s decision to dismiss is overturned, the employee will be reinstated with immediate effect and he/she will be paid for any period between the date of the original dismissal and the successful appeal decision. His/her continuous service will not be affected.

Gross Misconduct

Gross misconduct is misconduct of such a serious and fundamental nature that it breaches the contractual relationship between the employee and the organisation. In the event that an employee commits an act of gross misconduct, the organisation will be entitled to terminate summarily the employee’s contract of employment without notice or pay in lieu of notice.

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

  • stealing from the organisation, members of staff or the public;
  • other offences of dishonesty;
  • falsification of a qualification that is a stated requirement of the employee’s employment or results in financial gain to the employee;
  • falsification of records, reports, accounts, expense claims or self-certification forms, whether or not for personal gain;
  • sexual misconduct at work;
  • fighting with or physical assault on members of staff or the public;
  • deliberate damage to or misuse of the organisation’s property;
  • serious damage to the organisation’s property;
  • drunkenness or being under the influence of illegal drugs while at work;
  • possession, custody or control of illegal drugs on the organisation’s premises;
  • serious breach of the organisation’s rules, including, but not restricted to, health and safety rules and rules on computer use;
  • gross negligence;
  • conviction of a criminal offence that is relevant to the employee’s employment;
  • conduct that brings the organisation’s name into disrepute; and
  • discrimination or harassment of a fellow worker on the grounds of sex, sexual orientation, race, disability, age or religion or belief.

Other acts of misconduct may come within the general definition of gross misconduct.

Miscellaneous

If an employee who is an accredited representative of a trade union recognised by the organisation for collective bargaining purposes is suspected of having committed a disciplinary offence, the organisation will take no action under this procedure (with the exception of suspending the employee in a case of suspected or known gross misconduct) until the organisation has had a chance to discuss the matter, with the prior agreement of the employee, with a full-time official of that trade union.

This procedure will be periodically reviewed. Any amendment to it will be notified to employees in writing by the organisation’s HR manager and such written advice will inform employees as to the date when any amendment comes into effect. This may be by means of the organisation’s intranet or via use of notice boards.

Read more: iConsult Policies

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