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Disciplinary Procedure
1.0 Introduction and general principles
1.1
The procedure applies to all REC employees. However, it
does not apply to employees during their probationary
period, although any matter of discipline during a
probationary period should still be subject to a full and
fair investigation before any decision is made
1.2
Minor incidents of misconduct or poor work performance will
be properly and effectively dealt with informally, initially
through counselling, or training and where necessary by
issuing oral warnings. Management have a responsibility to
advise employees if their behaviour appears to fall short of
that expected and employees have a responsibility to respond
positively to such advice. Except in cases of serious or
gross misconduct, formal disciplinary action should only be
taken against an employee when informal day-to-day
management interventions have failed to produce the required
improvements. Examples of gross misconduct and misconduct
are included as appendices. Whether an issue is dealt with
as misconduct or gross misconduct, in many cases, will be
determined by the security of the breach.
1.3
In the interests of efficient management and the employee
concerned, all stages of the procedure should be effected as
efficiently and speedily as possible. However, where the
procedure refers to time limits, the director may increase
them in particularly complex cases and may, with the
agreement of the accused employee, reduce them.
1.4 Employees are entitled to be accompanied at all
stages of the procedure, although during an investigation
the person accompanying the employee has the status of an
observer, not a representative.
1.5
At all stages, an employee will be entitled to state his/her
case before a decision is reached. Where an employee is
unable to attend a hearing he/she will be entitled to be
represented in his/her absence.
1.6
No disciplinary action should be taken against a trade union
representative until the circumstances have been discussed
with a full-time official of the union concerned.
1.7
This procedure will be issued to all REC employees.
2.0 Initiating a formal disciplinary
investigation
2.1
There must be an investigation by the director (or his/her
representative) before any formal disciplinary action is
taken. Where the director is the subject of the
disciplinary matter, the investigation will be carried out
by the Chair of the Board (or his/her representative).
2.2
In most cases, it will be the director who decides whether
to initiate an investigation, except in some cases of
suspected gross misconduct, when the director will appraise
the Chair of the Board who will decide whether, how and by
whom an investigation should be undertaken. If the director
is the subject of the gross misconduct allegation, the Chair
will discuss the matter with two other Board members, who
will decide on whether, how and by whom the investigation
should be undertaken.
2.3
In a case of suspected gross misconduct the Chair of the
Board will also decide whether the employee concerned should
be suspended pending the conclusion of the investigation and
any disciplinary hearing that may follow. If suspected
gross misconduct comes to light requiring an immediate
response and the Chair of the Board is not available, the
director may send the person home with full pay pending a
formal decision on suspension. The director must report
such action to the Chair of the Board at the earliest
opportunity and keep the employee informed of the
situation. Suspension will be on normal pay, apart from in
exceptional circumstances (eg if the employee is being held
in remand). Where the director is the subject of
allegations, the Chairman of the Board will decide whether
suspension is appropriate.
2.4
In most cases the employee should be advised by the
director, in writing, as soon as the decision is taken that
his/her conduct is to be the subject of a disciplinary
investigation.
2.5
There will be exceptional cases, usually involving gross
misconduct, where it is not feasible to advise the employee
that they are subject to investigation. Justifiable reasons
will include the possibility that the employee may tamper
with evidence or intimidate witnesses, or that informing the
employee could interfere with a police investigation. If
such a decision is taken, the director must make a
contemporaneous note of the decision and the reasons for
it. The position must be kept under review and the employee
advised of the investigation if circumstances change.
3.0 The conduct and scope of the investigation
3.1 A
disciplinary investigation should be thorough, but it does
not have to discover evidence of guilt beyond all reasonable
doubt. The director will conduct an investigation of the
facts sufficient to allow a reasonable person to form an
opinion on the guilt or innocence of the employee concerned
on the balance of probabilities. All further references to
the director also apply to the Chair of the Board, if the
director is the subject of the investigation.
3.2
The director will interview such witnesses and collate such
evidence as he/she believes to be necessary. Where a
decision has been taken not to advise the employee that
he/she is subject to a disciplinary investigation at the
start of the process, he/she will be invited to an interview
before a decision on proceeding to a disciplinary hearing is
made. Employees may be accompanied at such interviews by a
trade union representative or a work colleague.
3.3 Employees are expected to assist with the
investigation. If employees are not willing to assist, the
director will make a decision on whether to proceed based on
the available evidence.
3.4
Having completed the investigation, the director will
produce a written report.
4.0 Deciding whether to proceed with a
disciplinary hearing
4.1
Where dismissal is a potential outcome of any disciplinary
hearing, whether on the grounds of gross misconduct, or
because the employee already has a live final written
warning on his/her personal file, the report will be
submitted to the Chair of the Board, who will decide on the
balance of the evidence obtained through the investigation
and set out in the report whether or not a disciplinary
hearing should be convened. If the director is subject of
the investigation, this decision will be taken by the Chair
of the Board.
4.2
Where dismissal is not a potential outcome, the director
will decide whether or not, on the balance of the evidence
obtained and set out in the report, or not, to convene a
disciplinary hearing.
4.3
If, as a result of the investigation, it is decided that
formal disciplinary action is not appropriate, all records
of the investigation must be removed from the personal file
and destroyed. The employee must be notified of this
outcome.
5.0 Convening the disciplinary hearing
5.1
If management decides that there is a case to answer, a
disciplinary hearing normally should be convened within 20
working days.
5.2
All cases will be heard by a panel of three members of the
Board (not previously involved in the case) and presented by
the director (or his/her representative).
5.3
The procedure for convening a disciplinary hearing is as
follows:
(i) The convening notice of the hearing must
reach the employee at least 10 working days
before the hearing.
(ii) The convening notice must:
or
trade union representative.
-
give details of the allegation(s).
-
advise the employee if, when proven, the allegations
could result in dismissal.
-
enclose a statement of the case against the
employee.
-
enclose copies of any witness statements and
documentary evidence being submitted.
-
enclose a list of witnesses to be called.
-
advise the employee that he/she can call witnesses
and submit documents.
-
enclose a further copy of the disciplinary
procedure.
(i)
At least five working days before the hearing, the employee
may submit to the director a statement of his/her response
to the allegations set out in the convening notice and must
submit a list of witnesses he/she intends to call and copies
of any witness statements and documentary evidence he/she
intends to submit.
(ii)
The director will ensure that all documents are issued in
advance to the disciplinary panel members.
6.0 Conducting the hearing
6.1
The panel will have elected a Chair. The panel should
ensure that proper notes are taken of the hearing. This can
be done by one of the panel or someone with no other
involvement in the hearing.
6.2
If the employee is unable to attend the hearing then he/she
may still be represented in his/her absence. Where it is
proposed to proceed in the employee’s absence, it is
advisable that this course of action is taken with the
agreement of the employee’s representative. However,
hearings cannot indefinitely be postponed and it may be
necessary for the panel to take a decision to proceed in the
employee’s absence without such agreement.
6.3
The panel will ensure that all parties have all the relevant
papers and that they understand the procedure to be
followed. In exceptional circumstances the panel has the
right to accept additional documents or agree to hear
witnesses not previously listed.
6.4
The panel will determine whether the employee is presenting
his/her own case or being represented.
6.5
The director will state the case against the employee,
referring to such evidence and calling such witnesses as
he/she thinks necessary. Witnesses may be questioned by the
employee or his/her representative and then by the panel.
At the conclusion of his/her case the director may be
questioned by the employee or his/her representative and by
the panel.
6.6
The employee or the representative will then present his/her
case, referring to such evidence and calling such witnesses,
as he/she thinks necessary. Witnesses may be questioned by
the director and the panel.
6.7
The panel has discretion to recall any witnesses, at any
point before a decision is made. If witnesses are recalled,
all parties will be present, although only the panel has the
right to ask questions.
6.8
Both parties will have the opportunity to sum up their case
without introducing any new evidence. The director will sum
up first.
6.9
Both sides will withdraw while the panel reaches its
decision.
6.10 If
the panel wishes to clarify any points of evidence, both
sides will be recalled together.
6.11 If
the panel considers that it needs further evidence before it
can reach a decision, it may defer its decision to allow
such evidence to be obtained.
6.12
Both sides will be recalled into the hearing and advised of
the decision, the level of any disciplinary penalty being
imposed and any rights of appeal.
7.0 Possible outcomes of the hearing
7.1
If as a result of the hearing the panel finds that the
allegations are not proven, the employee will be informed in
writing. All records of the disciplinary hearing shall be
removed from the personal file and destroyed.
7.2
If the panel decides that formal disciplinary action is
necessary, one of the following sanctions may be imposed:
-
first written warning (remains live on file for 12
months).
-
final written warning (remains live on file for 24
months).
-
dismissal with notice (following a final written
warning).
-
summary dismissal (only in cases of gross
misconduct).
-
in
exceptional circumstances, where gross misconduct is
proven, but there are mitigating
circumstances,
the panel may impose a final warning of up to indefinite
duration.
7.3
The decision must be confirmed in writing within five
working days of the conclusion of the hearing. The letter
must contain the following information:
-
the
alleged offences considered at the hearing.
-
whether the panel came to the conclusion that they
were substantiated or not.
-
the
reasons why the panel reached its conclusions
(including consideration of any mitigation).
-
the
level of disciplinary action being imposed and how
long it will remain live.
-
any
performance standards set for the future conduct of
the employee together with a review date.
-
in
cases of written warnings, that further lapses may
result in further disciplinary action,
including
dismissal.
7.4
Where a right of appeal exists the employee must be supplied
with the notes of the hearing within ten workings days of
the conclusion of the hearing.
8.0 Appeals
8.1
An appeal against any formal sanction must be sent to the
Chair of the disciplinary panel within ten working days of
receipt of the letter advising the employee of the decision
reached at the disciplinary hearing. The letter of appeal
must state whether part of the appeal rests on new evidence
that was not available at the original hearing and, if so,
clarify the nature of this evidence; it must also state
whether the appeal is related to the findings of the panel,
and/or the severity of the sanction.
8.2
Whilst there is not absolute bar, it is not envisaged that
it will be necessary for either side to call witnesses at
the appeal except where they are called to support new
evidence or where the appellant wishes to recall witnesses
in order to challenge the accuracy of the notes regarding
their evidence at the disciplinary hearing. The appellant
must supply a list of witnesses they intend to call at the
appeal hearing within ten working days of the appeal being
acknowledged. The director must submit his/her list of
witnesses, if any, within a further five working days.
8.3 Appeals will normally be heard within 20 working
days of being lodged. Although it is recognised that in
certain circumstances this may not be possible. All appeals
will be heard by a panel of three members drawn from the
Board. No person who sat on the original disciplinary panel
or has been involved in the case may hear the appeal.
8.4
The appellant will be given at least five working days’
written notice of the appeal hearing.
8.5
The notice of the appeal hearing must:
trade union representative.
-
enclose a complete set of papers considered at the
disciplinary hearing.
-
enclose the notes of the hearing and any note of
dissent submitted by the appellant.
-
enclose any submissions from the appellant relating
to the new evidence together with the
response
from the person who heard the case at the disciplinary
hearing.
8.6
Except where the appeal is on the basis that new evidence
has come to light, the appeal will be conducted solely on
the basis of the evidence considered at the disciplinary
hearing, together with the written statement clarifying the
grounds of the appeal and any associated substantiating
evidence.
8.7
At the appeal hearing, the order of presentation will be
reversed, with the employee going first. The appeal hearing
will otherwise proceed in the same manner as the
disciplinary hearing.
8.8
The appeals panel may not increase the level of action
imposed at the disciplinary hearing. Where an appeal
against dismissal is successful the employee will be
reinstated without any break in service. If an employee
will be reinstated without any break in service. If an
employee is reinstated on appeal the appeals panel will
decide whether the employee is fully exonerated or, where
the circumstances are appropriate, may decide that the
dismissal is being commuted to a final written warning.
8.9
The decision of the appeals panel must be confirmed in
writing within five working days of the conclusion of the
hearing. The letter confirming the outcome of the appeal
must contain the following information:
-
the
alleged offences considered.
-
the
level of disciplinary penalty imposed at the
disciplinary hearing.
-
whether the appeals panel found that the allegations
where substantiated or not and, if they
were substantiated, whether the level of disciplinary
action was modified or not.
-
the
reasons why the appeals panel reached its
conclusions.
-
the
new level of disciplinary action being imposed
(where appropriate).
-
if
the employee is not being dismissed, any performance
standards set for the future
conduct of the employee together with a review date.
9.0 Records of disciplinary action
9.1 A
‘live’ record of disciplinary action will be retained on the
employee’s personal file for the periods set out in
paragraph 7.2. If, at the end of that period, there has
been no cause for further disciplinary action the offence
will be considered ‘spent’ and the record will be placed in
a sealed envelope on the employee’s personal file.
9.2
For disciplinary purposes, ‘spent’ disciplinary offences may
only be referred to in the most exceptional circumstances.
Such circumstances may include:
another
employer and where to withhold information about the
offence could be mislead by
the
potential employer and pose a risk of civil action
against the REC.
investigation
and/or expose the REC to potential criminal prosecution.
10.0 Review
10.1
This document was approved by Race Equality West Midlands
Forum on 7 February 2002, amended October 2007 and reviewed
on an annual basis by the Chief Executive with the next date
of review scheduled for January 2009.
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