Discipline - procedural issues

1.1.    Time Limits

• In normal circumstances matters will be dealt with as quickly and as fairly as possible within the time limits specified within the procedure.  However, there may be exceptional circumstances where it is not reasonably practicable to adhere to the timescales set and they may be extended. 
• Where an extension to timescales is required, there will be reasonable agreement in principle, by all parties to extend the timescales.  The manager involved must write to the employee, before the deadline, stating the reasons for the delay and informing the employee of the expected new timescales.
• Any reference to days within the procedure is working days, Monday - Friday.

1.2.    Preliminary enquiries

Preliminary enquiries are not an investigation of the allegation but are necessary to establish the basic facts to determine whether or not there could potentially be a case to answer.   

Preliminary enquiries may include:

• Is the allegation or complaint justified? Has any rule been broken?
• Is the person identified a Council employee?
• If relevant, was the employee at work at the time the incident occurred?
• Is it a child protection or vulnerable adults issue?

Having established that there is a potential conduct matter, the manager must decide whether to commission a formal investigation under the Disciplinary Procedure.

In some cases, the allegation of misconduct will be treated as minor. For example, if the
manager is satisfied that even if all the facts alleged in the allegation were substantiated, no
disciplinary action would be taken. In such circumstances the manager may want to consider
taking no further action or addressing the issue through a Guidance Meeting. A Guidance
Meeting does not constitute formal disciplinary action.

If the allegation is considered as misconduct or gross misconduct, the manager must
appoint an Investigating officer and inform the employee.

If the allegation potentially amounts to gross misconduct, consideration should be given to
suspending the employee from work.

 
1.3.    What to do when the allegation(s) involves Trade Union Representatives and Officials

Conduct standards and rules apply to trade union representatives and officials as employees of the Council. 

Where an allegation involves an elected trade union representative or official no action should be taken until the circumstances of the case have been discussed with the Branch Secretary.  If the Branch Secretary is not available, every effort should be made to contact the Regional Official.

Where allegations involve the Branch Secretary, no action should be taken until the circumstances of the case have been discussed with a Regional Official.

1.4.    Attendees at Meetings/Interviews

HR will attend disciplinary appeal hearings.
  
In circumstances where the allegation relates to discrimination or harassment, the manager may be advised at meetings by another manager or an HR adviser of the same social identity group which relates to the basis of the case e.g. a female manager in a sex discrimination case.

1.5.    Allegations concerning Children or Vulnerable Adults

If an allegation potentially concerns children or vulnerable adults, the Local Authority Designated Officer (LADO) or Safeguarding Adults Coordinator, or another member of the Safeguarding Adults Team should be contacted within one working day before any action is taken.

The London Child Protection Procedures  (in particular, Allegations Against Staff), provides useful guidance on the process to follow when allegations against staff are made.

The Protecting adults at risk: London multi-agency policy and procedures to safeguard adults from abuse (in particular Section 2) provides useful guidance on the procedure to follow

The timescales for conduct cases involving allegations concerns children and vulnerable adults may be delayed by any police or other formal investigation which takes place.  It is not always possibly to comply with policy timescales if external organisations are also involved and making their own investigations.

HR can advise on how to contact the appropriate person.

1.6.    Police involvement/Criminal Actions

The Council is under an obligation, if it believes a criminal offence has been committed, to report it to the police and give them its co-operation. 

The Corporate Anti Fraud Team (CAFT) have the authority to conduct criminal investigations on behalf of the authority and dependent upon the circumstances of the allegation (e.g. potential financial loss), it may be appropriate to involve the police and give them its co-operation.  This decision will be taken as a joint one involving all affected parties.

If the allegation relates to a potentially criminal action e.g. criminal damage, the manager should seek advice from HR before contacting the police.

If an employee is charged with, or convicted of, a criminal offence not related to work, the manager should establish the facts and consider whether the offence, or alleged offence, is one which makes the employee unsuitable for their type of work.  Managers should seek advice from HR before proceeding.

1.7.    Internal Audit & CAFT 

If alleged misconduct concerns possible financial irregularities, the manager should seek advice from Internal Audit before proceeding.

If an allegation concerns possible fraud, the manager should seek advice from CAFT before proceeding.

1.8.    Keeping Records

It is important that management keep written records of the formal process detailing the allegation, suspension letter, investigation report and evidence, the employee’s defence, disciplinary action taken and reasons, appeal papers, the outcome of the appeal and any subsequent developments.

Full notes should be taken at interviews held as part of the investigation into the alleged misconduct, which include the questions asked, and also at the Disciplinary Hearing (this is not the role of HR).

A record of letters confirming disciplinary actions taken should be kept on the employee’s personal file for the duration of the disciplinary action after which time they should be removed. 

On completion of the case, managers should ensure they forward any relevant paperwork to HR to be stored with the employee's records. This is the responsibility of the manager who issues the disciplinary action.

Records should be treated as confidential and kept securely in accordance with the Data Protection Act 1998.

This act gives individuals the right to request and have access to certain personal data. 

Under the Data Protection Act 1998, workers have the right to gain access to information that is kept about them including disciplinary records.  Unless there is a legal obligation to do so, the Council need only disclose information about a worker where it concludes that in all the circumstances, it is fair to do so.  This duty of fairness is owed primarily to the worker.

In the case of confidential information provided by witnesses to any investigating officer, the Council will only disclose confidential information if the individual has clearly agreed or despite the duty of confidence, the worker's interest or the wider public interest justifies disclosure.

1.9.    Overlapping Complaints and Conduct cases

Where an employee raises a complaint during the disciplinary procedure, the disciplinary procedure may be temporarily suspended in order to deal with the complaint.  Where the disciplinary and grievance complaint cases are related it may be appropriate to deal with both issues concurrently.

1.10.    Allegations made by or against Non Council Workers (where joint or partnership working)

Managers should seek advice from HR before approaching the worker if a complaint is raised by or against another worker from a partner organisation. It is the responsibility of the partner organisation to address issues under their procedures as appropriate.

1.11.    Unable to attend Meetings/Hearings

Managers and employees must make all reasonable attempts to attend meetings as required under the procedure within the specified timescales.

Where an employee is unable to attend a meeting, either as part of the investigation, the Disciplinary Hearing or Appeal Hearing, every effort should be made to re-arrange the meeting to a mutually convenient date and time, within the set timescales.

Where it is not possible for an employee to attend a meeting due to the nature of their sickness, a mutually agreeable representative may act on their behalf.  This may be a family or friend authorised to act on behalf of the member of staff.   Employees may also send a written statement in to be used at the meeting where there are unable to attend in person. 

If the employee is absent due to sickness and unable to attend a meeting(s), and the above options are not feasible, the procedure should continue as far as possible in the absence of the employee (i.e. interviews with others, gathering information, etc) where appropriate.  Consideration should be given to the reason and likely duration of the sickness absence, whether it is appropriate to refer the employee to Occupational Health for advice on whether they are fit enough to attend meetings and whether to proceed in the employee’s absence.

A minimum of one alternative date and time and the alternative options of a representative or written statement must have been offered before proceeding in the employee’s absence is considered.

1.12.    Employee Resignation

The manager must seek advice from HR before proceeding, if an employee resigns or offers their resignation, during an investigation or prior to a Disciplinary Meeting.  If there are safeguarding, gross misconduct or criminal issues involved in the conduct case, it may be necessary to proceed until a conclusion is reached.  It may also be a requirement to report the outcome to a relevant, professional body (in cases which have an impact on professional standards).
The Council has a legal obligation and a duty to refer relevant information about an individual working with children or vulnerable adults to the Independent Safeguarding Authority where they are considered to have caused or posed a risk of harm. 
This applies wherever the Council provides adult/child protection teams and employs staff or provides a service involving regulated and controlled activity.  In addition, there are a number of professional bodies and supervisory authorities named in the Safeguarding Vulnerable Groups Act 2006 with a duty to refer.

1.13 Tape Recording

Tape recording of interviews/meetings or appeal hearings is not normally permitted and must not take place without the prior agreement of all parties involved. 

1.14.    CCTV Footage

CCTV footage can only be used in disciplinary cases if it has been obtained in compliance with the Council’s Protocol for video and audio monitoring.  At present this is a draft protocol.