2.2 Disciplinary Procedures

Contents

1. Principles
2. Process
3. Disciplinary Sanctions
4. Arranging a Disciplinary Hearing and Right to be Accompanied
5. Disciplinary Hearing Process
6. Termination of Employment
7. Appeals Procedure
8. Examples of Conduct

1. Principles

In the first instance, performance issues will normally be dealt with informally between you and your manager as part of day-to-day management. Where appropriate, a note of any such informal discussions may be placed in your personnel file but will be ignored for the purposes of any future formal action.

Informal discussions may assist in:

• Clarifying the required standards;
• Identifying areas of concern;
• Establishing the likely causes of poor performance and identify any training needs or reasonable adjustments that may be required; and/or;
• Set targets for improvement and a time-scale for review.

Other than for minor offences (for instance, warranting a first verbal warning) no disciplinary action will be taken against an employee until the case has been fully investigated.

The employee will be advised of the nature of the complaint against him or her and will be given the opportunity to state his or her case at a fact finding meeting, before any decision is made.

The employee will have the right, to be accompanied by a trade's union representative or work colleague at any formal disciplinary meeting or hearing. The employee shall generally not be entitled to request a companion at an investigation meeting stage or where a verbal warning is appropriate.

Generally, no employee will be dismissed for a first breach of discipline except in the case of gross misconduct (see Examples of Conduct: Gross Misconduct) when the sanction will be dismissal without notice or payment in lieu of notice.

Other than in respect of verbal warnings  an employee will have the right to appeal against any disciplinary penalty imposed. See Section 7, Appeals Procedure.

The procedure may be implemented at any stage if the employee's alleged misconduct warrants such action.

2. Process

If, despite informal discussions, work or conduct still fails to meet acceptable standards or where a disciplinary matter arises and it is considered that action beyond counselling or normal line management supervision should be considered, the matter will be dealt with under the formal disciplinary procedures.

A disciplinary hearing shall not be convened until the circumstances of the case have been fully investigated by a manager not involved in the allegation. 

The purpose of an investigation is for us to establish a fair and balanced view of the facts relating to any disciplinary allegations against you, before deciding whether to proceed with a disciplinary hearing. The amount of investigation required will depend on the nature of the allegations and will vary from case to case. It may involve interviewing and taking statements from you and any witnesses, and/or reviewing relevant documents.

An investigation may not necessarily take the form of an interview or meeting, it may only be a gathering of facts or the compilation of material relevant to the matters of concern, particularly if the matter may lead to the issue of a verbal warning only. 

Where an investigative interview is deemed necessary, it will solely be for the purpose of fact-finding and no decision on disciplinary action will be taken until after a disciplinary hearing has been held.

You do not normally have the right to bring a companion to an investigative interview. However, we may allow you to bring a companion if it helps you to overcome any disability, or any difficulty in understanding English.

You must co-operate fully and promptly in any investigation. This will include informing us of the names of any relevant witnesses, disclosing any relevant documents to us and attending investigative interviews if required.

Where disciplinary proceedings are instigated (other than proceedings which may lead to a verbal warning only), following an investigation, and where evidence about an employee's alleged misconduct has been obtained from third parties in the form of written notes or statements, either the notes or  statements themselves or a summary of their content will normally be given to the employee. However, we reserve the right to conceal the identity of any or all of the parties if there is a legitimate reason to do so, such as where there may be a risk to the safety of others if the identity of witnesses is disclosed. In those circumstances, we will consider providing a summary of the information to the employee.

When an investigation is complete the report may make recommendations in relation to the implementation or level of any disciplinary sanction (if any). Where a disciplinary process is recommended, the report may be considered by the Company’s external HR advisors who in conjunction with the Company will determine whether on the basis of the findings a disciplinary hearing should be arranged.

If, following an investigation, a disciplinary hearing is not deemed to be warranted, the employee will be informed in writing of the outcome of the investigation and why the allegations have been unsubstantiated. 

Our aim is to deal with disciplinary matters sensitively and with due respect for the privacy of any individuals involved. All employees must treat as confidential any information communicated to them in connection with an investigation or disciplinary matter.

You, and anyone accompanying you (including witnesses), must not make electronic recordings of any meetings or hearings conducted under this procedure.

You will normally be told the names of any witnesses whose evidence is relevant to disciplinary proceedings against you, unless we believe that a witness's identity should remain confidential.

3. Disciplinary Sanctions

The following sanctions may be imposed as indicated but are not necessarily sequential. When a disciplinary sanction is imposed, account will be taken of any 'live' disciplinary warning previously imposed on the employee and if the previous conduct or omission is identical to or similar to the matter under investigation:

Disciplinary Action	Period of `live' Warning
Verbal Warning	6 - 9 months
First Written Warning	9 - 12 months
Final Written Warning	12 - 15 months
Transfer and/or demotion accompanied by a Final Written Warning	15 months
Dismissal	N/A

Warnings will normally be disregarded after the expiration of their term. However, they will not be disregarded if a subsequent warning is issued in relation to further misconduct (of whatever nature) which occurs whilst a warning is “live” or within a reasonable period of time after the warning has expired in respect of misconduct of a similar or related nature. It is the date of the further misconduct which determines whether an earlier warning remains 'live' and not the date of the hearing in respect of the further misconduct.

3.1 Issuing a Warning without a Hearing

The Company reserves the right not to schedule a hearing, in respect of matters of minor employee misconduct or capability (for instancing, warranting a verbal warning).

If, having conducted an investigation into the facts of the case, and the employee accepts in full the findings of the Investigation and waives their right to a full Hearing, it is possible for the manager who would normally conduct the Disciplinary Hearing to issue a written warning without the need for a Hearing (cases of misconduct or capability only). Any such warnings must be sanctioned by the Designated Manager.

Note: Warnings issued to employees working with children or other vulnerable service users, where the misconduct relates to children or vulnerable service users, will be retained on a separate file. In the event of further misconduct, any relevant retained warnings (expired or otherwise) will be taken into account.

3.2 Suspension

Any suspension must be approved by the Designated Manager. If there is an ongoing Child Protection Enquiry, no decisions will be made without the approval of the Local Authority Designated Officer (LADO) in the area where the home is located.

Suspension is a neutral act and is not to be regarded as prejudging the matter and is not to be considered or intended to be a disciplinary sanction. Where suspension is appropriate the employee will be suspended from work on basic contractual pay whilst the matter is investigated.

Any suspended employee submitting a sickness absence certificate shall still be automatically deemed to be upon sickness absence. Any employee who is absent due to sickness during the course of any suspension, disciplinary  proceedings or during investigations into alleged breaches of rules, procedures or contractual obligations, will not be entitled to sickness payment (other than SSP).

Where ever possible, written confirmation of the suspension will be forwarded to the employee within five working days and shall outline the reason/s for the suspension.

The suspension of an employee shall be reviewed on a regular basis by the Designated Manager. And the employee will be advised of the progress of the investigation and reason for any delay.

The suspended employee must be available during normal working hours, if required to be so by the employer. Suspended employees are reminded that all other conditions of service continue to apply whilst suspended, e.g. regarding reporting of sickness, applications for leave, working elsewhere for other agencies etc. and as such permission must be granted from their line manager in the normal manner.

3.3 Nominated Contact

In the event, an employee is suspended, Bryn Melyn Care may consider appointing a nominated contact for the duration of any suspension period.

Generally, the role of the nominated contact is to:

• To act as a point of contact for the employee that has been suspended.
• To ‘check out’ the stage of the investigation/process if a delay occurs in communication of information.
• To re signpost EAP - Details and phone number will have been sent with the letter.
• To remind/reassure the employee if questioned that suspension is without prejudice and the investigation will be conducted as speedily as possible with full facts established.
• To offer updates (if the employee wishes) on any developments within the workplace during the employees absence.     

4. Arranging a Disciplinary Hearing and Right to be Accompanied

If there is an ongoing Child Protection Enquiry or Criminal Investigation, no decisions should be made without the approval of the Police and/or Local Authority Designated Officer (LADO) in the area where the home is located.

If, after conducting an investigation it is reasonably considered that there are ostensibly a case to answer, a disciplinary hearing will be arranged.

You may bring a companion to any disciplinary hearing or appeal hearing under this procedure. The companion may be either a trade union representative or a colleague. You must inform the Company who your chosen companion is, in good time before the hearing.

A companion is allowed reasonable time off from duties without loss of pay but no-one is obliged to act as a companion if they do not wish to do so.

If your choice of companion is unreasonable we may require you to choose someone else, for example:

• If in our opinion your companion may have a conflict of interest or may prejudice the hearing; or;
• If your companion works at another site and someone reasonably suitable is available at the site at which you work; or;
• If your companion is unavailable at the time a hearing is scheduled and will not be available for more than five working days.

We may, at our discretion, allow you to bring a companion who is not a colleague or union representative (for example, a member of your family) where this will help overcome a disability, or where you have difficulty understanding English. The employee will normally be given a minimum of two working days' notice of the hearing. If, for good reason, the employee is unable to attend the hearing, every effort shall be made with the employee and his/her representative to agree a mutually suitable date for a rearranged hearing. In the event the Employees representative is unavailable, then the employee must put forward an alternative date, which must be within 5 working days of the original date proposed by the Company. If there is no alternative but for the hearing to proceed in the absence of the employee, his/her representative will be provided with the opportunity to state the employee's case on his/her behalf. Any written submission by the employee, or by his/her representative, will be considered.

We will inform you in writing of the allegations against you, the basis for those allegations, and what the likely range of consequences will be if we decide after the hearing that there is reasonable belief that the allegations are true. We will also include the following where appropriate:

• A summary of relevant information gathered during the investigation;
• A copy of any relevant documents which will be used at the disciplinary hearing; and;
• A a copy of any relevant witness statements, except where a witness's identity is to be kept confidential, in which case we will give you as much information as possible while maintaining confidentiality.

The Company will normally request the attendance of  a member of its external Human Resources Department.

5. Disciplinary Hearing Process

If you or your companion cannot attend the hearing you should inform us immediately and we will arrange an alternative time. You must make every effort to attend the hearing, and failure to attend without good reason may be treated as misconduct in itself. If you fail to attend without good reason, or are persistently unable to do so (for example for health reasons), we may have to take a decision in your absence based on the available evidence.

You will be notified in the invite letter of the person conducting the Disciplinary meeting. The Investigating Officer and another member of staff may also be present. You may bring a companion with you to the disciplinary hearing.

At the disciplinary hearing we will go through the allegations against you and the evidence that has been gathered. You will be able to respond and present any evidence of your own.

Your companion may make representations to us and ask questions, but should not answer questions on your behalf. You may confer privately with your companion at any time during the hearing.

You may ask relevant witnesses to appear at the hearing, provided you give us sufficient advance notice to arrange their attendance. You will be given the opportunity to respond to any information given by a witness and present your case.

We may adjourn the disciplinary hearing if we need to carry out any further investigations such as re-interviewing witnesses in the light of any new points you have raised at the hearing. You will be given a reasonable opportunity to consider any new information obtained before the hearing is reconvened.

Once the hearing has been concluded, the Company will normally adjourn to consider its decision. 

We will inform you in writing of our decision and our reasons for it, usually within 7 days of the disciplinary hearing. Where possible we will also explain this information to you in person.

If you have difficulty at any stage of the procedure because of a disability, you should discuss this with the Designated Manger as soon as possible.

6. Termination of Employment

If an employee's contract is terminated on the grounds of mistreatment or abuse of a child, consideration will be given to making a referral to the Independent Safeguarding Authority, in consultation with the Local Authority Designated Officer (LADO) in the area where the home is located.

For more information about the circumstances which may result in a referral, and the process for making a referral, go to The Independent Safeguarding Authority website.

7. Appeals Procedure

An employee has the right to appeal against any disciplinary sanction and must do so, in writing, within 5 working days of receiving written notification of the disciplinary sanction, and forwarded to the Designated Manager.

A senior company manager or Director, who has not previously been directly involved in the case will conduct/chair the Appeal Hearing. The employee will be entitled to bring a companion with him/her to the Appeal Meeting.

The appeal hearing will normally be heard within 10 working days of receipt of the letter. The employee shall be given advance notice in writing in of the time and place of the hearing and will have the right to be accompanied by a fellow work colleague or trade union representative of his/her choice.

Employees should note that an appeal hearing is not intended to be a re-hearing or repeat the detailed investigation of the disciplinary hearing, but to review and focus on specific factors which the employee feels have received insufficient consideration, such as:

• An inconsistent, inappropriate or excessively harsh penalty.
• Extenuating circumstances.
• New 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 and may  inform the employee, orally, of the decision reached and the reasons for it and confirm this in writing normally no later than 5 days after the hearing. 

Following the Appeal Hearing, the Company may

• Confirm the original decision;
• Revoke the original decision; or;
• Substitute a different penalty.

Where an appeal against dismissal fails, the effective date of termination shall be the date on which the employee was originally dismissed. Once the appeal against disciplinary action has been considered, no further rights of appeal will be allowed.

In appropriate circumstances, the Company may at its discretion consider a full rehearing of the matter, depending upon the circumstances of the case. The employee will be informed if this is the case.

8. Examples of Conduct

8.1 Rules of Misconduct

The following are examples of matters that will normally be regarded as misconduct and will be dealt with under our Disciplinary Procedure:

• Lateness for work.
• Failure to follow Company  employment policies and procedures e.g. reporting absence.
• Refusal to obey a reasonable instruction of a Supervisor or manager.
• Negligence in performing your work or negligence leading to loss, damage (including to company vehicles) or wastage of company property or vehicles.
• Discrimination/harassment against an employee, service user or customer on the grounds of sex, colour, creed, nationality, ethnic origin, age, sexual orientation or disability.
• Improper, disorderly or unacceptable conduct at, during or when arriving for work.
• Wilfully inadequate work performance.
• Abusive or threatening behaviour towards a member of the public, clients, fellow employees.
• Using obscene language or other offensive behaviour which has a potential to create an intimidating, hostile or offensive environment.
• Excessive personal e-mail or internet usage, which has resulted in a serious neglect of your normal duties.
• Excessive use of our telephones for personal calls.
• Excessive personal use of a mobile phone provided by the Company for Business use.

This list is not intended to be exhaustive.

8.2 Gross Misconduct

Gross misconduct is a serious breach of contract and includes misconduct which, in our opinion, is likely to prejudice our business or reputation or irreparably damage the working relationship and trust between employer and employee. Gross misconduct will be dealt with under our Disciplinary Procedure and will normally lead to dismissal without notice or pay in lieu of notice (summary dismissal).

The following are examples of matters that are normally regarded as gross misconduct:

• Theft, or unauthorised removal of our property or the property of a colleague, contractor, young person or member of the public;
• Fraud, forgery or other dishonesty, including fabrication or falsification of expense claims and time sheets;
• Deliberate falsification or failure to complete of Company records;
• Serious verbal abuse or threatening behaviour;
• Actual or threatened violence, or behaviour which provokes violence;
• Smoking in non-smoking areas or anywhere on or off site in the presence of a young person/s;
• Being under the influence or consuming alcohol or non prescribed/illegal drugs, during work hours or at any social or external event or function, where young people are in attendance;
• Continuous unauthorised absence in excess of 3 working days;
• Deliberate, grossly negligent or reckless damage to our buildings, fittings, property or equipment, company vehicle, or the property of a colleague, contractor, young person or member of the public;
• Serious misuse of our property or name;
• Deliberately accessing or facilitating the access by others (in particular young people) of internet sites containing pornographic, offensive or obscene material;
• Repeated or serious failure to obey instructions, or any other serious act of insubordination;
• Any external or internal conduct or behaviour which in the company’s reasonable opinion may bring the organisation into serious disrepute or damage the company’s business reputation or standing;
• Serious unlawful discrimination, harassment or victimisation;
• Serious or repeated breach of health and safety rules, policies or risk assessments or serious misuse of safety equipment;
• Serious breach of trust and/or confidence, or where the Company has lost trust and confidence in an employee or their ability to provide the level of care, the Company reasonably  expects to young persons in the Company’s care;
• Acceptance of bribes or other secret payments;
• Accepting a gift above minimal value from a customer, supplier, contractor, young person or other third party in connection with your employment without prior consent from your line manager;
• Conviction for a criminal offence that in our opinion may affect our reputation or our relationships with our staff, customers or the public, or otherwise affects your suitability to continue to work for us;
• Possession, use, supply or attempted supply of illegal drugs;
• Serious neglect of duties, or a serious or deliberate breach of your contract operating or regulatory procedures;
• Serious breach of contractual, statutory or regulatory rules affecting your work or the provision of care;
• Unauthorised use, processing or disclosure of personal data contrary to our Data Protection Policy;
• Serious harassment or discrimination against employees, contractors, young persons or members of the public on the grounds of gender, marital or civil partner status, gender reassignment, race, colour, nationality, ethnic or national origin, disability, religion or belief or age contrary to our Equal Opportunities Policy or our Anti-harassment and Bullying Policy;
• Refusal to disclose any of the information required by your employment or any other information that may have a bearing on the performance of your duties;
• Giving false information as to qualifications, membership of professional bodies or organisations or entitlement to work (including immigration status) in order to gain employment or other benefits;
• Knowingly taking parental, paternity or adoption leave when not eligible to do so or for a purpose other than supporting a child;
• Making a disclosure of false or misleading information under our Whistle blowing Policy maliciously, for personal gain, or otherwise in bad faith;
• Making untrue allegations in bad faith against a colleague;
• Victimising a colleague who has raised concerns, made a complaint or given evidence information under our Whistle blowing Policy, Anti-harassment and Bullying Policy, Grievance Procedure, Disciplinary Procedure or otherwise;
• Serious misuse of our information technology systems (including misuse of developed or licensed software, use of unauthorised software and misuse of e-mail and the internet) contrary to our Electronic Information and Communications Systems Policy;
• Undertaking unauthorised paid or unpaid employment during your working hours;
• Unauthorised entry into an area of the premises to which access is prohibited;
• Criminal offences outside of work (including fraudulent activities such as claiming benefits where there is no entitlement to do so;
• Inappropriate conduct towards or contact with the public, clients, fellow employees;
• Unauthorised removal and use of company property;
• Failure to report or record any matter which it is the employee’s contractual duty (either expressed or implied) to report;
• Fighting or acts of violence at the work place, serious threatening or abusive behaviour towards members of the public, clients, fellow employees;
• Being incapable of adequately performing duties as a result of the abuse of alcohol or drugs;
• Falsification of documents likely to be of financial benefit to the employee or other persons e.g. time sheets, bonus/expense claims, qualifications etc;
• Serious breach of Health and Safety Procedures;
• Obtaining employment by deception in the course of selection procedures or any falsification or omission of relevant information, in the Company’s job application form, in particular qualifications or professional experience or memberships;
• Serious breaches of the Company's procedures which covers specific areas such as Duty of Care; Exercise of Professional Judgement; Power of Position and Trust; Confidentiality, Propriety and Behaviour; Sexual Contact; Physical Contact; Use of Control and Physical Intervention; Respect and Privacy; First Aid and Administration of Medication; Home Visits; Transporting Children; Trips and Outings, Communications with Children; Access to Inappropriate Images, Photography and Videos.

This list is not exhaustive.

In some cases we may at our discretion consider alternatives to dismissal. These will usually be accompanied by a final written warning. Examples may include:

• Demotion.
• Transfer to another department or job.
• A period of suspension without pay.
• Loss of seniority.
• Reduction in pay.
• Loss of future pay increment or bonus.
• Loss of overtime.

End