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Disciplinary Hearing

PREPARATION

Management Statement of Case

A formal Statement of Case should be prepared by the Investigating Officer and needs to be ready to send to the employee and the panel at least 1 working week before the hearing.

The Statement of Case should be based on the Investigatory Report and set out the reasons for recommending a disciplinary hearing to further consider the allegations. It is therefore important that all documentation on which the Investigating Officer intends to rely at the hearing is included within the management statement of case to afford the panel and the staff member adequate time to fully consider this.  

Management side will also receive a copy of the staff member’s statement of case at least one working week before the hearing. 

Setting a date for the Disciplinary Hearing

The NHSGGC Disciplinary Policy and Procedure – Management of Employee Conduct states that a minimum of five working days notice should be given to an employee required to attend a disciplinary hearing. The Disciplinary Chair should send the disciplinary invite letter ensuring that the employee has adequate time to prepare their case, particularly when the issue is complex, it is advisable to give a longer period of notice of the disciplinary hearing.

Where an employee advises that they are unable to attend/unable to secure appropriate representation for that date, a further date should be organised.  Unless the circumstances are exceptional it would be reasonable to expect the employee to arrange an alternative representative if the new date is problematic. If the name of the trade union representative is known then it makes practical sense to canvass the trade union representative for dates at the same time as arranging the panel.  An example of exceptional circumstances could include a situation where the case is very complex, has been a lengthy process and / or one where dismissal may be an outcome. In such circumstances the trade union representative may request that the case is not passed to another representative and another date sought which is mutually suitable for all parties. Such decisions should be taken with involvement of HR and senior management.

In the situation where the employee fails to attend without prior notification of their non-attendance, a further date should be organised.  Communication issued to the employee advising of the rescheduled date must advise that failure to attend without due cause may result in the disciplinary hearing proceeding in their absence and a decision being made from that which could result in disciplinary action being issued, up to and including dismissal.

In cases where the employee is unwell and therefore unable to attend the disciplinary hearing an alternative date should be organised.

Where a date is cancelled more than twice without reasonable explanation the case should be discussed with Human Resources and senior management.

Composition of Disciplinary Panel

The panel should be comprised as a minimum of a line manager / general manager (with the relevant authority - see schemes of delegation for disciplinary policy and that for medical and dental staff) and a representative of the HR function. Where the issue relates to professional practice or professional conduct, it is recommended that the panel has an appropriate professional adviser. This would typically be someone unconnected with the case, and able to advise on any professional issues identified in the case, e.g. Lead Nurse, Head of Profession.

Managers are reminded that professional issues are not always grounds for a disciplinary hearing as they may be more appropriately dealt with through supported improvement or performance management processes via the Capability Policy, and reference to the professional body.

Venue

It is important that the disciplinary hearing is not unnecessarily interrupted therefore selecting an appropriate venue is vital.  The venue should be a private room where there will be no distractions and where possible, located away from the employees work area.  To accommodate pre meetings and adjournments, an additional room should be reserved for the employee and their representative to accommodate these discussions.

In cases where witnesses are being called, it will be necessary to arrange additional waiting accommodation. Management and employee witnesses should be kept separate and these rooms should be in the same general vicinity as the disciplinary hearing room.

Documentation

The management statement of case and the employee’s response to it must be shared with all parties one week prior to the disciplinary hearing.  This must include all relevant supporting documentation i.e. copies of policies, standard operating procedures, witness statements etc.

Refreshments

If the chosen venue does not have its own cold water supply i.e. water cooler, arrangements should be made to ensure that all rooms reserved for the hearing have an adequate supply of water.

Should the disciplinary hearing be one of a complex nature and therefore, potentially of lengthy duration, arrangements should be made for coffee/tea to be available to all parties.

Note Taker

As a potential outcome of the disciplinary hearing could be the issue of a formal warning/dismissal which may be appealed by the employee, it is advisable that a note taker attend the disciplinary hearing.  The notes made of the disciplinary hearing will constitute a management record of the hearing [they are not verbatim] and are not required to be agreed with the employee or their representative. By agreement with both parties an audio recording of the disciplinary hearing may be taken by either party and a transcription of this will be shared with the two parties and the Panel chair.

Observers

From time to time Managers, HR practitioners and Trade Union Representatives may benefit from attending a disciplinary hearing for development purposes. They play no part in the process and attend only when the Management and Staff Side are present.  They may not have sight of or copies of any of the documentation used.  Permission to attend rests with the Panel Chair and in consultation with both parties.  If either party objects permission will be withheld. Witnesses called to the Hearing may object to the presence of an Observer and s/he may be asked to withdraw during the witness examination.

Duration of the Hearing

It is important that sufficient time is given to the hearing and that those involved allow plenty of diary time for this very important event. It is difficult to provide precise guidance on this but experience has shown that some hearings can be quite protracted due to lengthy and complicated explanations so allocating more time than initially thought necessary is good sense.  It is also appropriate to consider breaks if parties become distressed or require to confer.

Witnesses

Witnesses may find the experience quite daunting and may even express fear of presenting evidence in front of the employee. This situation will require careful handling. Staff are expected to fulfil their role as witness and should be encouraged to do so.

Witnesses have the right to bring someone with them for support.  This is normally a Trade Union Representative/Professional organisation.  They should only be present for their specific point.

Note:

Both parties will be advised in advance not just of the composition of the Panel but the names of witnesses who have been called, who else may be in attendance including any Observer.

CONDUCTING A DISCIPLINARY HEARING

Introduction - role of the Chair of the disciplinary panel

The Chair of the disciplinary panel needs to ensure that all parties present are clear on the purpose of the meeting and to confirm that a potential outcome of the hearing could be that disciplinary action may be taken against the employee. 

Therefore, the Chair should:

  • Ensure all introductions are made and clarify the name and role of each person present
  • Confirm the format of the hearing – management present their case first; opportunity for questions; employee responds to management case; opportunity for questions; closing statements then adjournment and finally announce decision explaining the right of appeal.
  • Confirm the details of the complaint/allegation made against the employee.  It is important; i.e. that one possible outcome of the hearing may be disciplinary action (and where the allegation is one of gross misconduct that dismissal is a potential outcome).
  • If any party wishes to table new information the Chair will take a short adjournment to consider whether they consider if it is appropriate to allow the information.
  • Confirm that the hearing shall be held in accordance with the NHSGGC Disciplinary Policy and Procedure – Management of Employee Conduct
  • Advise all parties that they can request short adjournments throughout the course of the hearing if they require to consult on a point or to regain composure.
  • Reaffirm appropriate behaviours are required throughout the hearing, ensuring everyone gets a fair opportunity to state their case. It should be made clear to the employee that they must answer the questions asked, not their representative. The trade union representative may make representations on behalf of the employee, but not answer any questions directed at the employee.

Statement of Case by Management

The Investigating Officer should state precisely what the complaint/allegation is and outline their case, referring to the evidence gathered during the investigation.

The Investigating Officer may wish to call witnesses to support their case.  Witnesses should only be present when giving their evidence, or answering questions on their evidence.  Witnesses should be restricted to giving only factual evidence.  It is management side’s responsibility for arranging the attendance of witnesses they wish to call.

Questions on Management case

The employee or their representative should be given the opportunity to ask questions to clarify any points of management’s statement of case.  They may also question any management witnesses.

The Chair and any other members of the disciplinary panel may ask for clarification on points of management’s case and may also question any management witnesses.  The types of questions used should be open and probing to establish the facts and to avoid leading witnesses.

Statement of case by Employee (or representative)

The employee or their representative should respond to the management statement of case, presenting their evidence and/or detailing any mitigating circumstances for their actions.  The employee or their representative may wish to call witnesses to support their case against the management statement of case. It is the employee’s (or representative’s) responsibility for arranging the attendance of witnesses they wish to call.

Questions on Employee case

Management should be given the opportunity to ask questions to clarify any points of the employee’s case.  They may also question any of the employee’s witnesses.

The Chair and any other members of the disciplinary panel may ask for clarification on points of the employees’ case and may also question any of the employee’s witnesses.  The types of questions used should be open and probing to establish the facts and to avoid leading witnesses.

Questions/clarification by disciplinary panel

The Chair and other members of the disciplinary panel may need to clarify points each side has made to ensure full understanding of the situation.  This will require good questioning techniques:

  • Open-ended questions – useful in establishing the facts of the matter as this type of question does not give an indication of the answer expected i.e. what happened to the patient last Friday?
  • Probing/clarifying questions – the answer to the open-ended question may be very general so the panel will need to probe into the response.

If the answer to the last question is along the lines of ‘I told her our records indicate that she had received her medication so she must be mistaken’ then a useful probing question would be ‘tell me what you said: what were your actual words?’  Asking an individual to repeat what was said rather than accept a less specific account often throws new light onto a situation.

  • Closed questions – this type of questions solicits a yes or no answer.  This type of question is useful to confirm single facts.
  • Playback questions – similar to the closed questions, this type of question can be used to play back your understanding of what the individual has just said i.e. are you saying that you told the patient that the records indicated that she had been given her medication?

Closing statements

Management and the employee/their representative shall be given the opportunity to make a closing statement in support of their position, sometimes referred to as ‘summing up’.  No new material is allowed to be presented at this point.  The employee should always be given the opportunity to speak last.

Adjournment

After both sides have presented their case the hearing will adjourn to allow the disciplinary panel to carefully consider all the points made by each side. Both management side and staff side should leave the room during any adjournments; only the disciplinary panel and the panel note taker should remain in the hearing room.

The key issues to consider when deciding on an appropriate outcome are:

  1. Have any of the allegations been found against the employee?
  2. Are there reasonable grounds to believe that the individual has acted as the allegations suggest?
  3. That a reasonable investigation has been carried out.
  4. Consider the employees action against the organisations policies and precedents.
  5. Has the behaviour been established as conduct and/or competence?
  6. Review employees record to establish if this is an extraordinary incident or a repetition of behaviours/performance, e.g. relevant and live warnings on file, a recorded development plan following prior incidents,
  7. Are there any mitigating circumstances?
  8. Are there any more appropriate alternatives to disciplinary action in the circumstances, e.g. training?

The following points should be considered by the disciplinary panel when considering conduct cases i.e. where the employees conduct could be explained in part by:

  • Personal factors –e.g. known health issues
  • Working relationship factors – personality clashes or bullying/harassment.
  • Job related issues – heavy workload pressures, environmental factors, and faulty equipment.
  • Training/supervision issues – insufficient or poor quality supervision, lack of clear instructions / Standard Operating Procedures / inconsistent rules applied to department.

In circumstances where the disciplinary panel believes that a decision cannot be reached as further investigations need to be undertaken, the hearing should be adjourned, the Manager and employee should be advised  and given an indication of the likely timescales for  the further  investigation.  Any new information gathered during this further investigation must be shared with all parties involved in the reconvened disciplinary hearing. The Chair of the Panel will instruct the Investigating Officer what has to be further explored and agree the timescale.

It should be noted that if demotion is being considered as an alternative to dismissal, then legally, the employee’s current contract needs to be terminated then they need to be re-engaged on the new contract. This does not create a break in service, it is more about clarity between the two jobs.

Communicating the decision

If, once the Disciplinary Hearing has ended, the panel believes that it can come to a conclusion within a reasonable time frame, the employee and their representative should be asked to wait in the adjournment room and the decision can be conveyed at the end of the deliberations.

The Chair of the panel should advise the employee verbally of the decision the panel have reached. Even in cases where a longer adjournment is necessary it is advisable and good practice to recall the employee to deliver the decision face to face.

The Chair requires to provide the employee with the justifications for the panel’s decision and the detail of this together with any sanctions will always be confirmed in writing within 5 working days of the hearing, unless otherwise agreed.

The Chair should ensure that the employee fully understands the implications of any sanction imposed on them, the duration of any formal warning and clarify any objectives/targets for improvement set by the disciplinary panel. 

Should the employee be issued with a formal warning, they need to be advised what actions will be pursued by management if they fail to address the matters that lead to the issue of the warning.  The Chair will advise the employee what support is available to assist them achieve the expected behaviours/performance.

The Chair, and the outcome letter, must also inform the employee of their right to appeal the decision reached by the disciplinary panel.  Appeals must be lodged in writing to the person named on the Disciplinary outcome letter within two weeks of its receipt. The letter of appeal should clearly set out the grounds for the appeal.

The employee should be given two copies of the warning/dismissal letter; one to retain, the other to sign, date and return to confirm receipt.

The Chair should also consider whether referral of the employee to their professional body is required. This will be determined by the allegations and information obtained throughout the investigation and disciplinary hearing. If referral is being considered, the employee should be informed of this in the outcome letter from the disciplinary hearing. The decision to refer the employee to their professional body lies with the Professional Lead, i.e. Chief of Nursing.

Board Property

Where deployment to another service or location results from the Disciplinary Hearing or where dismissal is an outcome, arrangements need to be made immediately for return of Board property (i.e. keys, ID badge, equipment) and for collection of personal belongings from the workplace.

Dismissal – Notice and Payment

Dismissals for gross misconduct are generally deemed to be ‘summary dismissal’ i.e. the dismissal date is the date the employee has verbally been advised at the disciplinary hearing or if no decision was confirmed at the disciplinary hearing then the date for dismissal will be from the date the letter is received and no notice is given in either circumstance.  Annual leave not taken should be stated on the Termination form to payroll.  The line manager is responsible for ensuring completion of Termination form. 

Dismissal for serious misconduct for which notice is due may involve Pay in Lieu of notice.

Dismissals for fraud or theft should take into account the requirements of the Board’s Fraud Policy in respect of recovery of the value lost from the former employee’s final salary and/or pension.