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Disciplinary and dismissal procedures for school staff Revised guidance for governing bodies

GuidanceWelsh Government circular no: 002/2013 Date of issue: January 2013

Audience Governing bodies of maintained schools in Wales; local authorities (LAs), school staff unions and diocesan authorities.

Overview This document offers revised guidance to schools, governing bodies, LAs and school staff unions on the management of the conduct and discipline of staff at the school, including allegations involving issues of child protection. It includes a model procedure in Annex I which it is recommended that governing bodies adopt.

Action All governing bodies must have regard to this guidance when required reviewing and implementing their staff disciplinary procedures and

must liaise with local staff unions over any changes to their staff disciplinary policy.

Further Governing bodies should seek advice about staff disciplinary mattersinformation from their local authority governor support officer. Advice may also

be obtained from Governors Wales’ helpline (tel: 0845 6020100; e-mail: [email protected]).

Enquiries about this guidance should be sent to: Schools Management and Effectiveness Division Department for Education and Skills Welsh Government Cathays Park Cardiff CF10 3NQ Tel: 029 2082 6051 e-mail: [email protected]

Additional This document can be accessed from the Welsh Government’s copies website at www.wales.gov.uk/educationandskills

Status of This circular guidance replaces Staff Disciplinary Procedures indocuments Schools National Assembly for Wales Circular No: 45/2004 and three

letters about independent investigation of allegations of a child protection nature as noted below:

(i) investigation of child protection allegations against school staff (9 November 2006) (ii) appointment of an independent investigator by school governing bodies for school staff disciplinary proceedings involving child protection allegations (30 March 2007) (iii) investigation of child protection allegations against school staff by independent investigators (30 August 2007).

Disciplinary and dismissal procedures for school staff

Digital ISBN 978 0 7504 8543 2 © Crown copyright 2013 WG17272

Contents

Section 1: Introduction 6 Whistleblowing 9

Section 2: The legal framework 11 Community, community special, voluntary controlled and maintained nursery schools which fall under Part 2 of the Staffing of Maintained Schools (Wales) Regulations 2006 14 Voluntary aided, foundation schools and foundation special schools which fall under Part 3 of the Staffing of Maintained Schools (Wales) Regulations 2006 15 Schools without a delegated budget 16 School staff employed by the LA 16 School staff employed by an agency 16 Staff not engaged through an agency of LA 17

Section 3: Training on staff disciplinary procedures 19

Section 4: Fair procedures and impartiality 21 Fair penalties 23

Section 5: The staff disciplinary and dismissal and disciplinary and dismissal appeals committees 25 Review of membership and remit of the committees 25

Section 6: Role of the chair of governors 28

Section 7: Lesser misconduct 29 Informal discussion with the headteacher and/or line manager 29 Stage 1 – Formal process for lesser misconduct 30 Investigation 30 Stage 2 – Lesser misconduct (a case to answer) – disciplinary hearing with the headteacher or chair of governors 31 Stage 3 – Action following disciplinary hearing before the headteacher/chair of governors 33 Stage 4 – Appeals against formal action 35 Allegations of lesser misconduct against the headteacher 36 Consideration under procedures for gross misconduct 36

Section 8: Gross misconduct 37 Involvement of the governing body 37 Allegations of criminal behaviour to be referred to the police 38

Investigation by the police 38 Action by the governing body 39 Allegations of gross misconduct against the headteacher 40

Section 9: Stages of the procedure for considering allegations of gross misconduct 41 Receipt of allegation of gross misconduct 41 The investigation 41 Conduct of the investigation 42 Suggested framework for the investigation report 44 Interviewing a member of staff 45 Interviewing witnesses 46 Record of interviews 46 Outcome of investigation for allegations other than child protection 46

Section 10: Procedures for handling child protection allegations 49 Receipt of allegation 49 Referral to the statutory authorities 50 Role of the statutory authorities 51 Referral for independent investigation 52 Appointment of an independent investigator for child protection allegations against school staff 53 The role of the investigator 55 Sharing of information 56 The investigation and the subsequent decision-making process 56 Appointment of independent non-governor member on staff disciplinary and dismissal committee and staff disciplinary and dismissal appeals committee 58 If the allegation is withdrawn 59 Anonymous allegations 60 Malicious/false allegations 60

Section 11: Disciplinary hearing 61 A case to answer 61 Arranging the hearing 61 Provision of written documents 62 Attendance and advice of chief education officer and diocesan representative 62 Attendance and advice of the headteacher 63 Role of the advisor 63 Role of the presenting officer 63 Role of the committee chair 64 Role of committee members 64

Role of the companion or union representative 65 Role of the clerk to the committee 65 Hearing procedure 67 Decision reached after the hearing has taken place 68 Disciplinary hearing – appeal 70 Absence due to illness 71 Resignation of a member of staff 72 Review 72

Section 12: Suspension 73 Use of suspension 73 Suspension interview 74

Section 13: General issues 76 Governing body access to information 76 Sharing information 76 Key Principles of Information Sharing – adapted from Safeguarding Children in Education April 2008 – refer to Appendix F of Circular 05/2008 77 Membership of staff disciplinary and dismissal committee and staff disciplinary and dismissal appeals committee 77 Governing body access to independent advice 79 Written records of proceedings, including records of governing body meetings 80

Annex A: Matters outside the scope of the staff disciplinary procedures 82

Grievance procedures 82 Complaints 83 Capability procedures 84 Whistleblowing 84Annex B1: Examples of lesser misconduct behaviour 85 Lesser misconduct 85Annex B2: Examples of gross misconduct behaviour 86 Gross misconduct 86Annex C: Guidance and other documents relevant to

staff disciplinary procedures 88 Reference material related to child protection 89 Key definitions and concepts 89Annex D: Supply of information 92 Information to be supplied by an employer 93

Annex E: Flow chart for lesser misconduct and gross misconduct 94

Annex F: Suggested timescales for hearings (in school days) 96

Annex G: Checklist for disciplinary hearings 100Annex H: Independent Investigation Service 101 Annex I: Model staff disciplinary procedure for

maintained schools 102Annex J: Model letters that can be used during the

disciplinary process 125 Letter (i): Sample letter inviting a member of

staff to attend an investigation meeting in respect of lesser or gross misconduct allegations 125

Letter (ii): Sample letter inviting a witness to attend an investigation meeting in respect of lesser or gross misconduct allegations 126

Letter (iii): Sample letter to a witness to request their attendance at a disciplinary hearing for either lesser or gross misconduct 127

Letter (iv): Sample letter to member of staff to request their attendance at a disciplinary hearing for either lesser or gross misconduct 129

Letter (v): Sample letter for lesser misconduct – conclusion from a disciplinary hearing with the headteacher/chair of governors (if about the headteacher), notice of final written warning 130

Letter (vi): Sample letter for lesser misconduct – conclusion from a disciplinary hearing with the headteacher/chair of governors (if about the headteacher) 131

Letter (vii): Sample letter for lesser misconduct – notice of appeal hearing with the staff disciplinary and dismissal appeals committee 132

Letter (viii): Sample letter – conclusion of an appeal before a disciplinary appeal hearing against a training and development/verbal/written warning given by the headteacher/chair of governors 134

Letter (ix): Sample letter for gross misconduct – notice of a disciplinary hearing before the staff disciplinary and dismissal committee 135

Letter (x): Sample letter for gross misconduct – conclusion from a disciplinary hearing with the staff disciplinary and dismissal committee 137

Letter (xi): Sample letter for gross misconduct – notice of appeal hearing before the staff disciplinary and dismissal appeals committee 139

Letter (xii): Sample letter for gross misconduct – conclusion of the appeal hearing against warning/dismissal 141

Letter (xiii): Sample letter for gross misconduct – confirming suspension from duty 142

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Guidance circular no: 002/2013

Section 1: Introduction

1.1 This document provides advice and guidance on a range of issues that form part of the school staff disciplinary/dismissal process. In accordance with sections 35(8) and 36(8) of the Education Act 2002, governing bodies must have regard to this guidance and the model staff disciplinary and dismissal procedure. Issues covered include:

• the legal framework• the constitution, membership and establishment of the staff

disciplinary and dismissal committee and the staff disciplinary and dismissal appeals committee

• procedures for dealing with lesser and gross misconduct allegations and behaviour

• procedures for dealing with allegations that involve issues of child protection including independent investigation

• investigation of allegations• use of suspension• conduct of disciplinary/dismissal proceedings• the appeals process if required• governing body action when a staff member resigns• governing body access to information and independent advice• governing body training• notification under the Education (Supply of Information) (Wales)

Regulations 2009 for all staff dismissals• a model staff disciplinary procedure as found in Annex I.

1.2 The Acas Code of Practice 1 – Disciplinary and grievance procedures1 points out that disciplinary procedures are necessary for promoting orderly employment relations and achieving fairness and consistency in the treatment of individuals and to minimise disagreements about disciplinary matters. The Acas Code encourages the agreement of disciplinary procedures between employers and employee representatives, so that they become part of contracts of employment.

1 www.acas.org.uk/index.aspx?articleid=2174

www.acas.org.uk/index.aspx%3Farticleid%3D2174

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1.3 A school governing body is required to adopt procedures to regulate the conduct and discipline of all staff at the school that are paid from the school’s delegated budget which includes:

• teachers• support staff such as teaching assistants• office staff• caretakers• laboratory technicians• learning support assistants• any other member of staff so paid.

However, this does not include:

• agency staff not employed under a contract of employment to work at the school and not funded by the school’s delegated budget

• either staff employed by a private contractor or self-employed supply staff who are engaged under a contract for services

• staff whose contract of employment is held by another body (e.g. teaching staff shared with the school in question via the collaborative process)

• staff employed by the local authority (LA) and paid by the LA (not from the school’s delegated budget) such as school meals staff, gardeners, etc.

• staff in a school with a delegated budget where an Interim Executive Board (IEB) has been established, as the IEB may adopt such reasonable procedures it deems appropriate (including the procedures in this guidance).

These persons are outside the scope of these procedures.

The governing body is required to establish two committees, namely a staff disciplinary and dismissal committee and a staff disciplinary and dismissal appeals committee2 3.

2 The Government of Maintained Schools (Wales) Regulations 2005 – regulation 55(1)(i) states that a decision to terminate the employment of any person employed by the LA to work at the school must be delegated to the staff disciplinary and dismissal committee.

3 The Government of Maintained Schools (Wales) Regulations 2005 – regulation 55(1)(ii) states ‘at a foundation, voluntary aided or foundation special school, the initial decision that a person employed to work at the school should have his or her contract of employment with the governing body terminated or should not have his or her contract renewed (except where the dismissal is pursuant to a direction of local education authority under section 55(5) of the 1998 Act.’ This function must be delegated to a committee known as the staff disciplinary and dismissal committee.

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1.4 The purpose of this guidance is to provide advice to governing bodies and headteachers on handling staff disciplinary matters in relation to conduct issues. This guidance also includes a model staff disciplinary and dismissal procedure at Annex I. It is not possible to address every eventuality which may arise and this guidance is not a substitute for legal or other advice relevant to individual circumstances.

1.5 In accordance with sections 35 and 36 of the Education Act 2002, this guidance is statutory and the Welsh Government expects all LAs and schools to review, in consultation with the recognised trade union representatives, their agreed disciplinary/dismissal policy and procedure against the guidance in this document on receipt of this guidance. In the event of a challenge to any part of the disciplinary process, a governing body will need to be able to demonstrate that it has had regard to this guidance and has either followed it and adopted the model procedure or amended their own staff procedure to take account of this guidance, or has a sound justification for not doing so. It is also recommended that the governing body also have regard to the Acas Code of Practice 1 – Disciplinary and grievance procedures.

1.6 The Welsh Government acknowledges that all LAs have model disciplinary procedures in place and recognises that there are differences between them. This guidance and model procedure will provide a consistent and coherent approach to staff disciplinary issues in schools across Wales. If a governing body chooses to follow policies or procedures provided by another party such as the LA or a diocesan authority, it must formally adopt such procedures as its own. This decision must be clearly minuted by the clerk and recorded in the minutes of the governing body meeting. This will ensure that school staff and their school union representative are absolutely clear of the model disciplinary policy that will be followed should it be required. If governing bodies choose not to follow their own agreed procedure this could result in the matter being referred to an employment tribunal. It is important that governing bodies adhere, wherever possible, to the timescales set out in their own agreed disciplinary procedures. The Welsh Government has suggested an overall time frame for the lesser misconduct and gross misconduct processes in Annex F. Governing bodies are free to adopt these timescales as part of their own agreed disciplinary procedures if they wish. However it is not appropriate during a disciplinary process for

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governing bodies to switch between their own agreed timescales and the ones set out in Annex F.

1.7 Once the governing body has agreed to formally adopt a staff disciplinary/dismissal procedure, it becomes the governing body’s responsibility to ensure compliance with the procedure and with statutory regulations in Wales. Governing bodies should therefore carefully consider the contents of such a procedure to ensure that it is suitable to meet the needs of the school, before formally adopting it. Consultation on any alternative procedure must take place, in good time, prior to formal adoption, with relevant parties and recognised trade unions.

1.8 As a matter of good practice governing bodies should regularly review their policies and procedures. The trade unions recognised by the LA and the governing body must be consulted in good time on any proposed changes to existing staff disciplinary procedures or guidance.

1.9 The principles of natural justice and the requirements of employment mean that the disciplinary procedures the governing body has adopted must be made known to all staff and must be clear and detailed. This is to ensure that all parties know what the arrangements are and to reduce the risk of bias or unfairness.

Whistleblowing

1.10 A whistleblowing procedure is specific and is essentially about employment issues for employees. It should be separate and distinct from other procedures that a governing body has in place for complaints, including complaints involving pupils, staff performance and capability, staff grievance and staff discipline.

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1.11 A governing body needs to recognise that the decision to whistleblow can be a difficult one for members of staff but that it is in the long-term interests of the school that concerns are addressed. Governing bodies should foster a culture where all staff members feel able to raise concerns, although it is important that staff are aware of the legal requirements surrounding whistleblowing.

1.12 Statutory protection is provided to whistleblowers by the Public Interest Disclosure Act 1998 (PIDA). The PIDA provides protection to employees in circumstances where their disclosure can be classed as a protected disclosure. In brief, a protected disclosure is one that is:

• a qualifying disclosure• made in accordance with sections 43C to 43H of the PIDA.

1.13 Detailed guidance on whistleblowing including a model policy for governing bodies can be found in Procedures for Whistleblowing in Schools and Model Policy Welsh Assembly Government Circular No: 36/2007 (2007).

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Section 2: The legal framework

2.1 The main legal provisions relating to staffing, disciplinary and conduct matters are contained in:

• the Employment Rights Act 1996• the Employment Relations Act 1999• sections 35–37 of the Education Act 2002• the Staffing of Maintained Schools (Wales) Regulations 20064

(referred to as ’the 2006 staffing regulations’ in this document)• the Staffing of Maintained Schools (Miscellaneous Amendments)

(Wales) Regulations 20075; (referred to as ’the 2007 staffing amendment regulations’)

• the Government of Maintained Schools (Wales) Regulations 20056 (referred to as ’the 2005 school government regulations’).

2.2 The 2005 school government regulations require governing bodies to establish a staff disciplinary and dismissal committee and a staff disciplinary and dismissal appeals committee. In accordance with regulation 557 the function of the staff disciplinary and dismissal committee is to determine whether a person:

• employed by the LA to work at the school should cease to work there (community, voluntary controlled or community special schools)

• should have their contract of employment terminated or not have it renewed (voluntary aided and foundation schools)

and to hear representations in relation to such matters.

The function of the staff disciplinary and dismissal appeals committee is to hear appeals in respect of such decisions. Both committees must be clerked in accordance with the 2005 school government regulations. Wherever possible, the clerk to the governing body should clerk the disciplinary and dismissal committees unless, due to the sensitive nature of disciplinary proceedings, the governing body may wish to appoint a clerk who is not a member of staff at the school. It is the responsibility of the governing body to appoint a clerk and LAs should not impose a clerk on a governing body. Whoever is clerk should be discrete, competent and trained. Further information on the role of the clerk can be found in Section 11, paragraphs 11.12–11.13.

4 www.opsi.gov.uk/legislation/wales/wsi2006/20060873e.htm5 www.opsi.gov.uk/legislation/wales/wsi2007/wsi_20070944_en_16 www.opsi.gov.uk/legislation/wales/wsi2005/20052914e.htm7 www.opsi.gov.uk/legislation/wales/wsi2005/20052914e.htm (Regulation 55)

http://www.opsi.gov.uk/legislation/wales/wsi2006/20060873e.htm

http://www.opsi.gov.uk/legislation/wales/wsi2007/wsi_20070944_en_1



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2.3 In accordance with the 2006 staffing regulations and the 2007 amending staffing regulations, governing bodies are responsible for the conduct and discipline of school staff, and any procedures for giving members of staff opportunities for seeking redress of any grievances relating to their employment. However, sections 35(7) and 36(7) of the Education Act 2002 state that if a school does not have a delegated budget then staff disciplinary and dismissal issues are the responsibility of the LA who are required to have a procedure in place for dealing with staff disciplinary and dismissal matters.

2.4 The governing body must also delegate responsibility for considering appeals against decisions of the staff disciplinary and dismissal committee to a separate disciplinary and dismissal appeals committee8. In lesser misconduct cases the disciplinary and dismissal appeals committee will also hear appeals against decisions made by the headteacher in respect of members of staff and decisions of the chair of governors in respect of headteachers.

2.5 Under regulation 55(3) of the 2005 school government regulations each committee must be made up of at least three governors. Having an odd number of governors on each committee will avoid the need for the chair of the committee to have a second or casting vote. In any event the Welsh Government suggests the maximum number of governors should be no more than five on each committee. Governors who have a conflict of interest or who are tainted may not be members of either committee. See Sections 4 and 5 for further advice. The disciplinary and dismissal appeals committee cannot have fewer governors than the staff disciplinary and dismissal committee. The same persons must not be members of both committees. Further information on tainting can be found in Section 5 (paragraphs 5.3–5.7) and Section 13 (paragraphs 13.1–13.4). Should governing bodies decide to have a larger number of governors on the staff disciplinary and dismissal committee they must keep in mind that they will need to find the same number of untainted governors for the staff disciplinary and dismissal appeals committee.

2.6 The headteacher cannot be a member of any committee or appeals committee dealing with staff disciplinary or dismissal matters, although the headteacher can attend meetings and disciplinary hearings to give advice, present the case against the member of staff or give evidence. The headteacher cannot attend any meetings or hearings to give advice or present a case where if they are the subject

8 www.opsi.gov.uk/legislation/wales/wsi2005/20052914e.htm (Regulation 55(2))


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of the allegation or a witness. In order to not compromise members of staff, the Welsh Government suggests that teacher/staff governors should not be members of the staff disciplinary and dismissal committee or the staff disciplinary and dismissal appeals committee. Teacher/staff governors may attend hearings as the subject of an allegation or to give evidence. Any governor who is suspended from the governing body should also not be a member of the staff disciplinary and dismissal committee or the staff disciplinary and dismissal appeals committee9. An associate pupil governor may not attend any meetings or hearings of either committee. In exceptional circumstances, for gross misconduct matters that do not involve child protection issues, non-governors may be members of either committee but they cannot vote in any of the proceedings10. A non-governor could include a person who is a governor at another school, as ‘non-governor’ in this context means a person who is not a governor at the school where the allegation has been made.

2.7 For allegations that involve issues of child protection against a member of the school staff which may lead to disciplinary proceedings there are two additional requirements for governing bodies of all categories of schools that have a delegated budget:

• the governing body must appoint an independent investigator, and have the allegation independently investigated prior to any disciplinary/dismissal hearing (regulation 7 of the 2006 Staffing regulations)

• the membership of the staff disciplinary and dismissal committee and the staff disciplinary and dismissal appeals committee must include at least two governors and an independent non-governor member with voting rights (regulation 55 of the school government regulations).

The membership of the committees must not overlap. Further information on handling child protection allegations can be found in Section 10.

9 An associate pupil governor may not attend any meetings or hearings of either committee.

10 www.opsi.gov.uk/legislation/wales/wsi2005/20052914e.htm (Regulations 54(7) and 54(8))


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Community, community special, voluntary controlled and maintained nursery schools which fall under Part 2 of the Staffing of Maintained Schools (Wales) Regulations 2006

2.8 The LA is the employer of staff in community, community special, voluntary controlled and maintained nursery schools, but governing bodies of these schools are also treated as the employer of staff in respect of certain employment functions in cases where the school has a delegated budget11. In addition, if there is a claim for unfair dismissal the governing body will be the respondent and not the LA. A representative of the LA is entitled in law to attend staff disciplinary and dismissal committee meetings to ensure that the correct process has been followed and to give advice to the governing body. The governing body should have regard to that advice but retains ultimate responsibility for any decision taken.

2.9 Where schools have a delegated budget both the governing body and the headteacher have the power to suspend staff. Both the headteacher and the governing body (usually the chair of governors in the latter case) must inform one another and the LA when they have suspended a member of staff. However, only the governing body (or its delegate) can end a suspension12. If the governing body ends a suspension it must immediately inform the LA and the headteacher. In accordance with regulation 50 of the 2005 school government regulations, governing bodies may delegate the suspension function to a governor or a committee. Pragmatically, this would be either the chair of governors or the chair of the staff disciplinary and dismissal committee or staff disciplinary and dismissal appeals committee. The decision to delegate this function must be minuted. Any suspension under the 2006 staffing regulations must be without loss of emoluments (salary).

2.10 Where the governing body has determined that a member of staff employed to work at the school should cease to work there, they must notify the LA in writing of its decision and the reasons for it. The governing body must give the member of staff the opportunity of appealing against their decision to dismiss them before notifying the LA of its decision. If the member of staff concerned works solely at the school and does not appeal, the LA must, within 14 days of receiving notification from the school, give that person notice terminating their contract of employment as required under the

11 www.opsi.gov.uk/legislation/wales/wsi2006/20060873e.htm (part 2)12 www.opsi.gov.uk/legislation/wales/wsi2006/20060873e.htm (Regulation 16) and

Section 12 (concerning suspension) of this guidance.



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contract, or terminate the contract without notice if the decision is to summarily dismiss the member of staff. Resignation of a member of staff during the disciplinary process is covered in Section 11, paragraph 11.28. If the member of staff is not employed solely to work at the school, the LA must require the member of staff to cease to work at the school. The Welsh Government strongly recommends that a governing body seeks advice from the HR department of the LA or equivalent advice from another source before suspending an individual.

Voluntary aided, foundation schools and foundation special schools which fall under Part 3 of the Staffing of Maintained Schools (Wales) Regulations 2006

2.11 The governing body is the employer of most staff in foundation and voluntary-aided schools, and is therefore responsible for the conduct and discipline of the staff employed to work at the school. Regulations 28–31 of the 2006 staffing regulations sets out the framework for suspension and staff disciplinary and dismissal arrangements at such schools. Governing bodies of these schools are also required to appoint an independent investigator to investigate child protection allegations and an independent non-governor member (who has voting rights) to the staff disciplinary and dismissal committee and the staff disciplinary and dismissal appeals committee, for all allegations that involve issues of child protection. These must be different persons.

2.12 Where schools have a delegated budget both the governing body and the headteacher have the power to suspend staff. Both the headteacher and the governing body (usually the chair of governors in the latter case) must inform one another and the LA when they have suspended a member of staff. However, only the governing body (or its delegate) can end a suspension13. If the governing body ends a suspension it must immediately inform the LA and the headteacher. In accordance with regulation 50 of the 2005 school government regulations, governing bodies may delegate the suspension function to a governor or a committee. Pragmatically, this would be either the chair of governors or the chair of the staff disciplinary and dismissal committee or staff disciplinary and dismissal appeals committee. The decision to delegate this function must be minuted. Any suspension under the 2006 staffing regulations must be without loss of emoluments (salary).

13 www.opsi.gov.uk/legislation/wales/wsi2006/20060873e.htm (Regulation 16) and Section 12 (concerning suspension) of this guidance.


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Schools without a delegated budget

2.13 In relation to any category of school that does not have a delegated budget the LA is responsible for suspension, staff discipline and dismissal in accordance with Part 1 of Schedule 2 to the Education Act 2002. This means that neither the 2006 staffing regulations, which establishes a framework for staffing matters, nor the 2007 staffing amendment regulations apply to staff at these schools. This also means that the specific requirements in those regulations in relation to child protection allegations considered to be gross misconduct will not apply. (These requirements are set out in paragraph 2.7.)

School staff employed by the LA

2.14 Subject to paragraph 2.15, where the LA directly employs staff to work at a school, such as school meals staff or centrally employed teaching staff and staff such as, for example, inclusion services staff, music support services staff, and literacy and numeracy tutors, the LA is responsible for the discipline, suspension and dismissal of such staff14. Before exercising any of these functions, the authority must consult the governing body of the school at which the member of staff concerned works about the issues, to such extent as the authority thinks fit.

2.15 However, if the governing body determines that such a person should cease to work at the school they must notify the authority of that fact and the reason for that determination. They may also ask the person to immediately leave the school premises. The authority must then require the person to cease working at the school. If the allegation involves matters relating to child protection, the headteacher, LA-designated child protection officer and chair of governors should refer the matter to the statutory authorities.

School staff employed by an agency

2.16 Where an agency directly employs staff to work at a school such as supply teachers, and the agency holds the contract of employment, the headteacher should notify the agency immediately that its employee is no longer employed to work at the school and has been asked to leave the school premises and the reason for this decision. This is because the agency is responsible for the discipline, dismissal and suspension of its own staff. Before exercising any of

14 www.opsi.gov.uk/legislation/wales/wsi2006/20060873e.htm (Regulation 18).


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these functions, the agency should consult the governing body of the school at which the member of staff concerned works on the issues to such extent as the agency thinks fit.

2.17 In summary, if a gross misconduct allegation is made against one of these members of staff, the following should happen:

• the matter should be reported to the agency• the headteacher should consider whether the member of staff

should leave the school premises• the agency should be informed that the individual is no longer

required to work in the school. This is not a dismissal or a termination of contract by the school as the contract is held by the agency. The school will need to provide the agency with their reasons for taking this decision

• the agency should inform the governing body of the school at which the member of staff works before carrying out any suspension or disciplinary/dismissal action.

2.18 While in law there is no role for a governing body to become involved in disciplining a member of staff employed by an agency, the Welsh Government is aware of concerns that the agency may not have a similar disciplinary procedure in place. The Welsh Government has no objections to this guidance or the model policy being shared with the agencies for information purposes.

Staff not engaged through an agency or LA

2.19 Some schools engage staff for supply work using school staff ‘online networks’. This is where persons who are qualified teachers register online to be available, often at short notice, to cover supply work. Other schools may hold a list of such persons, who live locally, who have expressed an interest in being engaged for supply cover. As well as ensuring these persons have a valid Criminal Records Bureau check when they are taken on, governing bodies and headteachers will need to consider whether such persons are engaged under a contract of employment. If this is the case the governing body would be responsible for conducting any disciplinary proceedings provided the school has a delegated budget. Therefore, the guidance in this document applies to those staff.

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2.20 However, where those persons are ‘self-employed’, that is, those not employed under an employment contract but under a contract for services, the governing body is not responsible for conducting disciplinary proceedings. Should a school receive child protection allegations against such a person, the school should consider whether the member of staff should be asked to leave the school premises. Governing bodies should carry out an assessment of the circumstances leading to the allegation, i.e. when and where it took place, any witnesses, and consider, after seeking advice from the designated child protection officer in the school and LA, whether a referral to the statutory authorities is required.

2.21 Once the statutory authorities have completed their consideration of the matter the governing body, with support from the LA, should carry out their own investigation into matters. Such an investigation would not involve the use of the Welsh Government’s IIS as it is outside of the scope of that service. Instead the investigation could be carried out by a senior member of staff in the school, the headteacher, a governor or a member of the LA. The governing body should inform the person of the outcome of the investigation. If there is evidence to support the allegation the school should inform the person that they will not be using them again. The governing body and LA will also need to take advice about the sharing of information with other schools that may also use the services of the person against whom the allegation has been made, taking into account the need to comply with data protection requirements.

2.22 Whether a person is an employee or self-employed is often difficult to determine and all the circumstances must be considered. Where there is any doubt on this point governing bodies should seek independent legal advice. In the first instance it would be appropriate for the governing bodies to contact the legal department of its relevant LA.

Section 3: Training on staff disciplinary procedures

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Guidance Circular No: xx/2013

3.1 Disciplinary matters must be handled in accordance with the law and the principles of natural justice. Cases can be extremely complex. Governors who are members of the staff disciplinary and dismissal committee and the staff disciplinary and dismissal appeals committee can feel unprepared when dealing with staff disciplinary matters, especially where the outcome may possibly result in a member of staff being dismissed.

3.2 All governors should undertake timely and relevant training on staff disciplinary matters. Governors who are members of the staff disciplinary and dismissal committee and staff disciplinary and dismissal appeals committee should also receive refresher training in more detail, when they have been made aware that they will have to deal with a disciplinary matter. Clerks to governing bodies, headteachers and staff should be included in this training.

3.3 By law, LAs15 are required to provide training for governors free of charge on a range of issues which will help them discharge their functions and responsibilities effectively and as considered necessary and appropriate. It is very likely therefore that your LA will already have a training programme in place covering staff disciplinary issues. Governors should contact their LA for details.

3.4 Training for governors, clerks, headteachers and staff should cover:

• relevant legislation, i.e. employment and education legislation, Acas’ Code of Practice 1 – Disciplinary and grievance procedures, equal opportunities legislation, Equalities Act 2010, data protection, Freedom of Information requests and case law

• essential features and principles of effective and fair governing body procedures

• how to carry out an investigation• conduct of a disciplinary interview or hearing• skills and techniques for questioning• confidentiality• impartiality• child protection matters• whistleblowing• record keeping

15 At the time of publication this duty was still in section 22 of the Education Act 2002.

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• notification to the General Teaching Council for Wales (GTCW) where appropriate, and the Independent Safeguarding Authority (ISA) which is being replaced by the Disclosure and Barring Service (DBS).

3.5 Training on staff disciplinary and dismissal issues is not mandatory. However, in order to give governors a better understanding of the disciplinary process and their role, the Welsh Government’s expectation is that the governing body should ensure that members of the staff disciplinary and dismissal committee and the staff disciplinary and dismissal appeals committee receive appropriate and timely training. Waiting until a disciplinary case arises is too late and may cause unnecessary delays in the disciplinary process.

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Section 4: Fair procedures and impartiality

4.1 A governing body must reach decisions in a procedurally fair way. A person against whom allegations are made has the right to a fair hearing. Accordingly the headteacher, chair of governors and governing body must follow the procedures they have adopted. Under any procedures the initial letter informing the member of staff that disciplinary action is to be taken should:

• inform the member of staff of the allegation against them at the earliest opportunity, and provide any supporting evidence

• state the possible sanctions that could apply if the allegation is upheld

• state the member of staff’s rights under the terms of the school’s staff disciplinary procedure, including the right to representation

• provide opportunity for the member of staff to obtain their own advice and representation to enable them to prepare their response to the allegations and for any disciplinary hearing

• include details of membership of the staff disciplinary and dismissal committee and disciplinary and dismissal appeals committee and afford opportunity to object to any member of either committee on the basis of evidence that calls into question their ability to act impartially in the circumstances of the case noting the reasons why

• provide the member of staff with a copy of the relevant policies.

The Welsh Government suggests that this list is used as a template for all such letters.

4.2 In order to protect the integrity and impartiality of the governors who are members of the staff disciplinary and dismissal committee, any objection to the membership should be made to the chair of governors. It would be for the chair of governors (subject to delegation of this responsibility to them by the governing body) to make a decision as to whether the objection is valid; the chair of governors may discuss the matter with the LA and should take account of the advice received. If the objection is accepted, the chair of governors may contact governors on a reserve list previously agreed by the governing body in priority order. The chair should inform those involved who the substitute would be. The decision of the governing body to allow the chair to take the decision regarding the objection and to choose a substitute from a reserve list agreed by the governing body should be clearly minuted.

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4.3 Members of the committees must be impartial and unbiased and must address the issues objectively and independently, giving due proper and equal consideration to the representations from all parties16. Under regulation 63(2) of the 2005 school government regulations17 a governor must declare any interests they may have and withdraw from the meeting without voting if there is a conflict of interest or reasonable doubts about their ability to act impartially, or if they have a pecuniary interest. Where there is dispute about these matters the other governors present at the governing body or committee must vote to decide the issue (regulation 63(5) of the 2005 school government regulations applies). If a member of the staff disciplinary and dismissal committee withdraws after declaring an interest they should be replaced. If this declaration is made at a governing body or staff disciplinary and dismissal committee or staff disciplinary and dismissal appeals committee meeting, it is the responsibility of the governing body or committee members to decide who the replacement should be. However, if a governor notifies the chair of governors of any conflict of interest outside of a meeting, the chair may seek an alternative governor to be a member of the staff disciplinary and dismissal committee from the priority list agreed by the full governing body, provided the governing body has delegated authority to the chair to do so – see Section 5 paragraphs 5.4 and 5.5.

4.4 No governor must take part in deciding appeals against their own decisions. Accordingly, regulation 55(6) of the 2005 school government regulations18 prohibits members of the staff disciplinary and dismissal committee from taking part in the proceedings of the staff disciplinary and dismissal appeals committee.

4.5 Cases should only be discussed by members of the staff disciplinary and dismissal and the staff disciplinary and dismissal appeals committees as part of the proceedings of those committees. When the chair reports progress on a staff disciplinary matter to the governing body the information the governing body should receive is that the case is being, or has been, dealt with in the appropriate manner in accordance with school procedures. If other detailed information is revealed the chair’s report could generate questions from governors and subsequent discussion. Should this happen the chair should stop the discussion immediately. Should the discussion continue then the governing body could put themselves at risk as members of the staff disciplinary and dismissal committee and the

16 The Seven Nolan Principles of public life. www.archive.official-documents.co.uk/document/parlment/nolan/seven.htm17 www.opsi.gov.uk/legislation/wales/wsi2005/20052914e.htm (Regulation 63(2))18 www.opsi.gov.uk/legislation/wales/wsi2005/20052914e.htm (Regulation 55 (6))

http://www.archive.official-documents.co.uk/document/parlment/nolan/seven.htm



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staff disciplinary and dismissal appeals committee may be present and would be tainted. If this happens and the member of staff decides to refer the case to an industrial tribunal then the governing body may be in some difficulty in defending its actions. Members of the governing body must at all times treat all information they receive relating to allegations against members of staff with the utmost confidentiality.

4.6 Other governors who have knowledge of the evidence or potential evidence must not discuss the case with fellow governors. If any of the members of the staff disciplinary and dismissal committee or the staff disciplinary and dismissal appeals committee were involved in such a discussion, they could be subject to a claim that they were prejudiced or tainted because they had formed a view in advance, and were consequently unable to approach the matter with an open mind. This could potentially lead to a claim for unfair dismissal being upheld by an Employment Tribunal, which could have possible financial implications for the school’s delegated budget as it may have to bear the costs.

4.7 In addition to the statutory requirements on governing bodies outlined above, the whole disciplinary process must be seen to be fair, reasonable and give expression to the principles of natural justice, to ensure that the staff disciplinary and dismissal committee’s consideration and final assessment of the facts is considered, reasonable and justified. A fair process also helps to safeguard the member of staff in what will invariably be a stressful time for the person concerned.

4.8 The principles of natural justice demand that decisions should be taken in an impartial and balanced way after taking into account all available information, including representations from the member of staff and their union representative, witnesses, which could include children, and witness statement(s) and the person presenting the case against the member of staff (refer to Section 5 paragraphs 5.3–5.7 and Section 13 paragraphs 13.1–13.4 for additional information on tainting).

Fair penalties

4.9 It is recommended that governors and headteachers consider Discipline and grievances at work: The ACAS guide. For ease of reference extracts from the text of page 27 of that document follow.

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‘When deciding whether [and what] disciplinary penalty is appropriate and what form it should take, consideration should be given to:

• whether the rules of the organisation indicate what the likely penalty will be as a result of the particular misconduct

• whether standards of other employees are acceptable, and that this employee is not being unfairly singled out

• the employee’s disciplinary record (including current warnings), general work record, work experience, position and length of service

• any special circumstances which might make it appropriate to adjust the severity of the penalty

• whether the proposed penalty is reasonable in view of all the circumstances

• whether any training, additional support or adjustments to the work are necessary; and

• any representation made by the employee or on his behalf in relation to possible sanctions.’

These factors should only be considered for the purpose of deciding whether a disciplinary penalty is appropriate after the decision on the merits of a case has been taken. Governors should not take any of the factors listed above into account when considering or determining a case.

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Section 5: The staff disciplinary and dismissal and disciplinary and dismissal appeals committees

Review of membership and remit of the committees

5.1 Governing bodies should establish and review the membership of their committees at least annually. It is good practice for this to be done at the first governing body meeting of the school year. The names of the governors identified to be members of both committees should be recorded in the governing body minutes. Membership of these committees also needs to be checked at the start of each case so that any governor who is tainted or otherwise compromised, e.g. has demonstrated partiality or has an interest in the case, is replaced.

Examples of where a governor may be tainted include where a governor:

• is the subject of the allegation(s) under consideration• is related to the member of staff against whom an allegation of

misconduct has been made or has a close relationship with any of the parties involved

• has a pecuniary interest• has demonstrated that they cannot fulfil their role impartially,

e.g. has been a member of the staff disciplinary and dismissal committee that heard the original complaint which is now the subject of an appeal, or has indicated that they have predetermined the matter

• is a person who instigates the allegation• is the subject of complaints or grievances or has prior involvement

in the allegation or events leading up to the allegation.

5.2 If the member of staff facing disciplinary action, or their union representative, can demonstrate that there are reasonable doubts about the impartiality of a member of either committee, the governing body should replace the governor, unless there are other overriding considerations, e.g. there may be insufficient impartial governors to make up the required three. Refer to Section 13 (paragraphs 13.1–13.4) for more information on issues around impartiality and to Section 4 regarding how an objection to a committee member could be raised.

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5.3 Knowledge that an allegation has been made and knowledge of the nature of that allegation does not affect impartiality provided that a governor does not hear or read any of the evidence other than as part of the hearing arrangements and as a member of the staff disciplinary and dismissal or staff disciplinary and dismissal appeals committees. The governing body and individual governors must not discuss a disciplinary case. Cases should only be discussed by members of the staff disciplinary and dismissal and staff disciplinary and dismissal appeals committees as part of the proceedings of those committees. To mitigate any risk to the confidentiality and fairness of the disciplinary process other governors who have knowledge of the evidence or potential evidence must not discuss the case with fellow governors or anyone else. If any of the members of the staff disciplinary and dismissal committee or the staff disciplinary and dismissal appeals committees were involved in such a discussion, they could be subject to a claim that they were prejudiced or tainted because they had formed a view in advance and were consequently unable to approach the matter with an open mind. This could potentially lead to a claim for unfair dismissal by a dismissed member of staff being referred to and upheld by an employment tribunal with potential consequences for the school’s delegated budget.

5.4 Where other governors have to be identified to replace any of those initially agreed by the governing body, this decision should be taken by the whole governing body. This could result in the governing body being called together quickly, using the emergency procedures, in order to avoid delays in the disciplinary process.

5.5 There are alternative pragmatic arrangements that governing bodies may wish to consider putting in place to cater for such an eventuality. Governing bodies could identify reserve governor members, in a priority order, at the time the committees are set up to cater for such an eventuality, i.e. conflicts of interests, illness and holiday commitments. This would allow the chair to contact replacement governors in a priority order. These arrangements must be clearly minuted, including the decision to allow the chair of governors to contact the reserve governors. Alternatively, the governing body could decide that if any member of the staff disciplinary and dismissal committee is tainted and unable to act, the governors identified to be the staff disciplinary and dismissal appeals committee should take over the role of the staff disciplinary and dismissal committee (provided they are not tainted). This could

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provide sufficient time for the governing body to identify governors for the staff disciplinary and dismissal appeals committee in priority order as established by the governing body.

5.6 Governing bodies must make alternative arrangements clear as part of the school’s agreed staff disciplinary procedure and must minute decisions made or agreements reached. Where these alternative arrangements have to be implemented all parties should be immediately informed and given the reasons.

5.7 The opportunity can be taken when reviewing the membership of the committees to review and confirm or amend the disciplinary procedures adopted by the governing body. If the governing body considers that the disciplinary procedure requires amendment it must consult the relevant trade unions, the LA and, if appropriate, the diocesan authority in good time before making any amendments (refer to Section 1 for further information).

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6.1 The chair of governors should not normally sit on either the staff disciplinary and dismissal committee or the staff disciplinary and dismissal appeals committee, as it is possible that they could have prior knowledge which could lead them to form a judgement on the case. For example, it would be usual for a headteacher to inform the chair of governors that a gross misconduct allegation had been made against a member of staff and that the governing body’s staff disciplinary and dismissal committee would need to meet. This could generate a discussion between the headteacher and the chair of governors which could possibly taint the chair, depending on what was discussed.

6.2 If the governing body decides that the chair should be a member of the staff disciplinary and dismissal committee or the staff disciplinary and dismissal appeals committee (because of their expertise, etc.) this decision should be clearly noted in the staff disciplinary procedure, and another governor (not involved in either committee) must be nominated to act as chair in respect of that allegation. This role is usually undertaken by the vice chair, unless they are a member of the committees, or are tainted in any way.

6.3 The chair of governors, with the headteacher, would receive the report from the investigator in gross misconduct cases and decide on the action to take in respect of allegations against a member of staff. If the allegation is against the headteacher, the chair of governors and another governor will receive the investigator’s report, including any report from an independent investigator in relation to a child protection case (see Section 10 for further information), and decide on the course of action to take. For any gross misconduct cases, if the headteacher and the chair of governors (or the chair of governors and another governor in respect of allegations against the headteacher) cannot agree the way forward on receipt of the investigating report, the case must proceed to a hearing before the staff disciplinary and dismissal committee. The clerk to the governing body should be present at these meetings to record the discussions and decisions made.

6.4 The chair of governors may not sit on either committee if they have been involved at any initial stage of the investigation.

Section 6: Role of the chair of governors

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7.1 It is usual for consideration of alleged behaviour that could be considered to be lesser misconduct to be delegated to the headteacher. This is a decision for the governing body to make which must be minuted. This delegation of authority includes the imposing of all sanctions short of dismissal including a final written warning. The governing body’s disciplinary procedure needs to contain reference to these delegation arrangements. However, some lesser misconduct behaviours/allegations can be immediately discounted if the circumstances demonstrate that they did not take place. Paragraph 7.26 includes advice about dealing with lesser misconduct allegations made against the headteacher.

7.2 Annex B1 includes a list of suggested behaviours that are considered to be lesser misconduct. This is not an exhaustive list and is provided for illustrative purposes only.

7.3 Annex F provides suggested timescales in relation to lesser misconduct matters.

Informal discussion with the headteacher and/or line manager

7.4 There will be occasions when it is appropriate for a member of staff’s actions to be discussed with that member of staff as part of normal supervisory arrangements and without recourse to the formal procedures, this being a management process and not part of the disciplinary process. The facts of the matter would need to be established before any discussion took place. In these circumstances the member of staff will be given guidance and support from their line manager.

7.5 Line managers need to ensure that problems are discussed in order to encourage and help members of staff to improve. The member of staff needs to understand:

• what they need to do in relation to their conduct in question• how conduct will be monitored and reviewed and over what

period• that more formal action (paragraph 7.6) could be taken if there is

a recurrence of the conduct in question, or if the member of staff fails to produce the necessary improvements.

An agreed record of the meeting should be kept, although the process would be considered to be informal. As these meetings form part of normal management meetings where members of staff are

Section 7: Lesser misconduct

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being asked to, for example, improve timekeeping or hand in work on time, it would not be expected for members of staff to have representation at these meetings.

Stage 1 – Formal process for lesser misconduct

7.6 Where lesser misconduct allegations are made they should be dealt with in accordance with the school’s disciplinary policy. The line manager may consider that in all the circumstances it is not appropriate that they be dealt with by informal discussion as in paragraphs 7.4–7.5. The matter should then be referred to the headteacher for more formal action. Where the actions of the staff member are not improving following an informal discussion with the line manager (including the headteacher if they are the line manager) or the chair in respect of the headteacher, the headteacher or chair should arrange for these issues to be investigated. This is the beginning of the formal stage of the process which may result in a sanction being imposed. The member of staff should be informed of the allegation and that formal lesser misconduct procedures are being engaged before an investigation commences.

Investigation

7.7 An investigation will take place and should be undertaken by someone other than the person who may be required to take informal action/formal action. This may be a member of the senior management team (unless the investigation is about the headteacher) or another independent person (e.g. from the LA or diocesan authority). Persons appointed to independently investigate lesser misconduct allegations are not the same independent investigators required to investigate child protection allegations and the law in the 2006 staffing regulations about who is classed as independent does not apply. The investigation will include gathering evidence, interviewing all witnesses including those identified by the member of staff and producing a report. It is expected that schools will release members of staff who are witnesses to be interviewed. The person undertaking the investigation must look for all evidence and identify the facts against the allegation made. Refusal to interview key witnesses identified by the member of staff as having relevant evidence is not reasonable. All witnesses with relevant evidence should be interviewed; however, witnesses cannot be mandated to talk to the investigator or give evidence. Where oral statements are made these should be written contemporaneously. However,

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witnesses may also wish to present written statements to the investigator. Contact details of an LA adviser should be given to the person carrying out the investigation. Further information on the investigation process can be found in Section 9 paragraphs 9.6–9.14. An investigation will not necessarily result in disciplinary action, and this should be made clear to all parties. If the headteacher or the governing body has any concerns they should seek advice from the LA’s HR adviser.

7.8 Once the investigation has been concluded, the investigating officer will present the findings to the headteacher (or the chair of governors in respect of allegations against the headteacher) in a written report. This should be done as soon as practicable after the conclusion of the investigation. The headteacher or chair of governors may conclude that:

• no further action will be taken• matters can be dealt with under the informal procedure

(paragraphs 7.4 and 7.5)• there appears to be sufficient evidence for a hearing with the

headteacher or the chair in respect of the headteacher to be conducted

• there appears to be sufficient evidence that the allegation constitutes gross misconduct behaviours for a formal disciplinary hearing with the staff disciplinary and dismissal committee

If there is conflicting evidence the matter should be referred to a hearing before the headteacher or chair of governors, or if the allegation constitutes gross misconduct the matter should be referred to a hearing before the staff disciplinary and dismissal committee.

7.9 Where the investigation suggests that the alleged misconduct demonstrates a breach of the conditions of an existing unspent final written warning, the case must be referred to the staff disciplinary and dismissal committee.

Stage 2 – Lesser misconduct (a case to answer) – disciplinary hearing with the headteacher or chair of governors

7.10 Where the investigation demonstrates that there appears to be sufficient evidence to warrant a disciplinary hearing with the headteacher (the chair of governors would conduct the

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disciplinary hearing into allegations against the headteacher) a disciplinary hearing must be arranged. It is advisable to have a HR representative from the LA present with the chair at a hearing against the headteacher. The member of staff should be given as much information as possible, in writing, providing it does not compromise or place a member of staff or pupil in a difficult situation (e.g. identifying a pupil who may be a witness, or identifying a member of staff who has whistleblown – revealing these details could provide an opportunity for the member of staff against whom the allegation has been made to discuss the matter inappropriately with the pupil or member of staff).

7.11 The information given to the member of staff should include:

• the nature of the alleged misconduct• the stage reached in the procedure• the date, time and place for the hearing• the possible outcome of the hearing• a copy of the up-to-date procedure • their right to:

– produce written statements which will be circulated to all parties in advance of the hearing

– ask questions relating to any written statements so produced – state their case in person and/or through a representative – produce witnesses – be accompanied by a companion19, or a representative of the

member of staff’s trade union.

The member of staff and their representative should have a reasonable amount of time to prepare for the hearing. See Annex F for suggested timescales.

7.12 At the hearing, the member of staff must have the opportunity to answer allegations made, and present their evidence before any decision is reached. A contemporaneous record should be made of the meeting. A copy of the record should be provided to the member of staff for amendment and/or agreement.

19 A companion may be a fellow worker, a trade union representative or an official employed by a trade union – see Code of Practice 1 – Disciplinary and grievance procedures (Acas, 2009). Relevant case law applies: G v. the governors of X School and Kulkarni v. Milton Keynes Hospital NHS Foundation Trust.

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Stage 3 – Action following disciplinary hearing before the headteacher/chair of governors

Informal action

7.13 Following the hearing, the headteacher with support from the LA HR adviser (or chair of governors in respect of the headteacher) will determine whether matters can be dealt with by giving advice, counselling, training, instruction, coaching or other appropriate managerial strategies as is appropriate, which may be delegated to a member of the senior management team. It would not be appropriate for a member of the senior management team to carry out the actions in respect of the headteacher. This should be carried out by the chair of governors, with advice and support from the LA HR adviser.

7.14 Such advice, counselling, training, instruction, coaching or managerial strategies are not part of formal disciplinary procedures.

Possible sanctions/formal action

7.15 Where the headteacher or chair of governors (in respect of the headteacher) considers that the behaviour of the member of staff justifies more formal action, or the member of staff has failed to respond to informal action, or the headteacher/chair of governors has concluded that an allegation should be considered as lesser misconduct, allegations can usually be dealt with by means of a formal action. Subject to paragraph 7.17 this could be any one of the following:

• recorded oral warning• first written warning• final written warning.

Recording oral warning or written warnings

7.16 The decision should be given to the member of staff in writing after the disciplinary hearing. The warning must be for a fixed period of time that is expressly stated in the warning itself (see paragraph 7.19 for details). Where specific improvements are required these need to be detailed. A report of the warning should be placed on the member of staff’s personal file and the member of staff given a copy. A copy must also be provided to the chief education officer of

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the LA that maintains the school for staff employed in community, community special and voluntary controlled schools. If the written warning notice is not a final warning, the member of staff should be told that if the misconduct were repeated within the life of the current warning, the disciplinary process may be applied and if so applied could result in an extension to the current warning or the issuing of a final written warning. The member of staff’s written or oral acknowledgement of the warning and any observations on it should also form part of the record.

Warnings

7.17 It is not necessary for the warning to be given in the order listed in paragraph 7.15. In the event of a further allegation or an allegation of a more serious nature it may be possible to enter the disciplinary process at a stage that could result in the issuing of a first written or a final written warning thereby bypassing, if appropriate, the oral warning and/or the first written warning stages.

Where a formal warning20, either oral or written, is given, the member of staff should be informed of:

• the action needed on their part to avoid any further disciplinary sanction

• the consequences of any failure to take necessary action• their right of appeal against a warning.

A record of all warnings should be kept on the member of staff’s file for the duration of the warning.

7.18 Such warnings are given to the member of staff in the form of a letter with a copy placed on the member of staff’s personal file. A copy of the letter is also provided to the chief education officer for staff employed in community, community special and voluntary controlled schools. The member of staff’s acknowledgement of the warning, together with any written observations on it, should also be added to the member of staff’s personal file. A warning is described as a final warning when it is made clear to the member of staff that failure to address the behaviour in question will lead to consideration of the matter under the governing body’s formal disciplinary procedure and/or could lead to dismissal.

20 A warning that will be placed on the worker’s record – see page 26 of Discipline and grievances at work – The ACAS guide at www.acas.org.uk/index.aspx?articleid=2179

www.acas.org.uk/index.aspx%3Farticleid%3D2179

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Warning periods

7.19 Warnings should be expunged from the staff member’s file after a specified period often referred to as (“the warning period”). Suitable periods would be:

• oral warning – 3 months• first written warning – 6 months• final written warning – 12 months.

Expunged warnings should be removed from all records and therefore cannot be referred to again once spent.

7.20 It is important however, to note that the duration of the warning can vary according to the detail of the offence and the detail of the required improvement. There is discretion for warnings to be placed on record for longer than the periods set out.

Stage 4 – Appeals against formal action

7.21 The disciplinary procedures adopted by the school should provide for a member of staff to appeal against a formal warning. The member of staff should be able to appeal against:

• the sanctions imposed, e.g, that the sanctions are inappropriate in relation to the failings identified/the decision itself, e.g. where the findings of the investigation are not consistent with the evidence produced.

7.22 The disciplinary and dismissal appeals committee would hear any appeal. It should take the form of a re-hearing unless the member of staff asks for a review of the evidence. The procedure should set a time limit for notification by the member of staff to the clerk to the disciplinary and dismissal appeals committee of the intention to, and reasons for, appeal and require these reasons to be provided along with the notice of intention to appeal.

7.23 The member of staff should be informed in writing of the date and time of the appeal hearing in advance (refer to Annex F for suggested timescales to follow).

7.24 There may need to be flexibility with timescales subject to mutual agreement, e.g. where there is a large amount of paperwork involved or unavailability of staff. It may not always be necessary for

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an appeal to be a re-hearing, especially where the member of staff is appealing on a minor point of act or penalty imposed. However, the decision as to whether the appeal takes the form of a re-hearing should be a matter for the member of staff to determine.

7.25 The appeals procedure to be followed for lesser misconduct cases should be the same as that set out in Section 11 paragraphs 11.22–11.26 in relation to cases considered by the staff disciplinary and dismissal appeals committee. An appeals body cannot impose a more severe penalty than that imposed at the first hearing. Therefore, where the matter is to be considered by the staff disciplinary and dismissal appeals committee, a more severe penalty cannot be imposed than that imposed by the headteacher.

Allegations of lesser misconduct against the headteacher

7.26 If an allegation amounting to lesser misconduct is made against the headteacher, the school’s disciplinary procedures need to provide for the matter to be brought to the attention of the chair of governors. The chair would need to act in accordance with the arrangements set out in the school’s staff disciplinary procedure as informed by the guidance in paragraphs 7.4–7.25. The chair of governors should, where possible, arrange for any investigation to be carried out externally, e.g. by the LA, diocesan authority or an independent person(s).

7.27 While a person appointed under these circumstances would be independent, they would not be an independent investigator appointed within the terms of the Welsh Government’s Independent Investigation Service for child protection allegations.

Consideration under procedures for gross misconduct

7.28 If at the end of an investigation the headteacher (or the chair of governors in respect of the headteacher) or other senior manager concludes that disciplinary action for gross misconduct may be justified, they should inform the member of staff at the end of the meeting and confirm in writing that the matter is being referred to the governing body staff disciplinary and dismissal committee for their consideration.

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(See Section 9 for the procedure for dealing with gross misconduct allegations.)

8.1 This section and Section 9 are not to be used when considering child protection allegations. This is covered in Section 10.

8.2 In this guidance the term gross misconduct is used to mean an act, or omission, or a series of actions or omissions which fundamentally repudiates the contract of employment so that the governing body would be justified in dismissing or asking the LA to dismiss the member of staff. In such cases dismissal is likely to be without notice. In other words, such acts or omissions may justify summary dismissal after a disciplinary hearing, without notice or payment in lieu of notice. Gross misconduct offences should be clearly set out in the governing body’s disciplinary procedure, and the decision to dismiss must be carried out fairly and objectively.

8.3 Annex B2 includes a list of suggested behaviours that are considered to be gross misconduct. This is not an exhaustive list and is provided for illustrative purposes only.

8.4 Annex F provides suggested timescales in relation to gross misconduct matters.

Involvement of the governing body

8.5 A governing body is statutorily required to be involved in all gross misconduct matters requiring formal disciplinary action. Refer to Section 2 paragraph 2.2 for information on disciplinary and dismissal committees.

8.6 Usually the headteacher will receive an allegation made against a member of staff, and the chair would receive an allegation made against the headteacher. It is for those persons, in discussion with the LA and diocesan authority where appropriate, to determine whether, if proved, the member of staff’s alleged conduct and behaviour could reasonably fall within the category of gross misconduct and warrants consideration by the governing body staff disciplinary and dismissal committee. For allegations against the headteacher see paragraph 8.19 below.

Section 8: Gross misconduct

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Allegations of criminal behaviour to be referred to the police

8.7 Referral to the police is necessary where the allegation relates to a criminal offence (including where the allegation relates to a child protection issue – refer to Section 10 for further information). Allegations against staff of criminal behaviour relating to fraud, theft, criminal damage and the like should be referred to the police by the headteacher or chair of governors (in the case of allegations against the headteacher). The LA should be advised of the referral.An employee should not be dismissed or otherwise disciplined solely because they have been charged with or convicted of a criminal offence. The question to be asked is whether the conduct/conviction merits action because of its employment implications.

8.8 On receipt of such allegations the headteacher or chair of governors should seek advice from the LA and diocesan authority where appropriate and should make an initial assessment of, and make enquiries about (but not investigate) the nature and circumstance of the allegation. These enquiries should establish:

• that an allegation has been made• what is alleged to have occurred• when and where the episode(s) is/are alleged to have occurred• who was involved• any other persons present.

8.9 The remainder of the guidance in this section refers to the staff disciplinary process for gross misconduct allegations which are not considered to be child protection allegations. Detailed guidance on the arrangements for governing bodies to deal with allegations that involve issues of child protection is found in Section 10.

Investigation by the police

8.10 Subject to paragraph 8.12 it is recommended that any investigation by the police or other parties takes priority over the school’s disciplinary proceedings. No action should be taken by the governing body while these parties investigate the matter as it could jeopardise potential criminal proceedings. Furthermore, at this stage the governing body is unlikely to have access to the full information from the statutory authorities or other parties, making it difficult for them to make a judgement. If in doubt it is recommended that governing bodies contact their LA to discuss.

referral.An

referral.An

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8.11 If the investigation leads to a criminal conviction the staff disciplinary and dismissal committee must still consider the case in order to determine what, if any, disciplinary sanctions to impose up to and including dismissal. In this instance the governing body should consider not just the criminal behaviour, but the wider aspects of the behaviour of the member of staff in relation to the allegation or whether that behaviour is consistent with the behaviour policy for staff in that school and whether that policy has been breached.

8.12 The headteacher or chair of governors may consider suspension pending disciplinary proceedings. They may also suspend a member of staff while a criminal investigation takes place. Suspension should not be an automatic option as it is a serious step. However, after taking all the circumstances into account this may well be considered the most reasonable course of action. Refer to Section 12 for further information on suspension.

Action by the governing body

8.13 Where disciplinary proceedings have to be held in abeyance pending investigation by the police, the governing body needs to confirm the membership of the staff disciplinary and dismissal committee and the staff disciplinary and dismissal appeals committee to consider the case.

8.14 If the police pursue an allegation against a member of staff which results in them receiving a custodial or a suspended sentence, the staff disciplinary and dismissal committee must meet formally to complete the disciplinary process and to determine whether or not the member of staff’s contract should be terminated. If the decision is dismissal, the LA must be informed in respect of staff in community, community special and voluntary controlled schools, so that the LA can terminate the member of staff’s contract. For voluntary aided and foundation schools the governing body is the employer and terminates the contract, but the LA must be informed.

8.15 It is not appropriate for the governing body to conclude that because there is no prosecution or a prosecution fails, consideration of disciplinary action is unnecessary. Governing bodies need to recognise:

• that a higher standard of proof is required for criminal proceedings than for disciplinary proceedings

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• that disciplinary proceedings may well involve wider behavioural issues of the member of staff in relation to the allegation than those considered by the statutory authorities, e.g. did the member of staff not comply with a school procedure or a decision made by the headteacher or their line manager

• the general duty of care the governing body has to pupils and others.

8.16 It is recommended that the governing body should commence disciplinary proceedings promptly after the investigation by the statutory authorities has ended.

8.17 Statements made to the police by potential witnesses may be made available to the investigator for use in disciplinary proceedings, provided consent is given by the maker of the statement. The police should seek to disclose this information wherever possible, in order that the investigator, presenting officer and member of staff can have access to all relevant information, ensuring that their disciplinary procedures are effectively and fairly implemented.

8.18 If a member of staff is convicted of a criminal offence and or subsequently dismissed, the governing body should take the opportunity to consider whether there is a need to review and/or revise any of its policies or procedures, i.e. financial procedures, or other relevant policies, to guard against recurrence of the problem (refer to Annex D for information about supply of information).

Allegations of gross misconduct against the headteacher

8.19 These should be handled in the same way as allegations against any other member of staff except that the chair should receive the allegation and will need to initiate consideration of the allegation. The investigation of the allegations ought to be carried out externally, by the LA or another appropriate person, but the governing body must maintain control of the investigation in line with its responsibility for staff disciplinary procedures.

8.20 Locally elected councillors should neither be considered to be independent for the purposes of investigation in any category of school, nor should employees or representatives of the diocesan authority be considered for this role, in respect of faith-based schools. It is appropriate, however, for the LA or diocese to be involved in giving advice and identifying an appropriate independent person, such as a retired headteacher.

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Receipt of allegation of gross misconduct

9.1 As soon as an allegation is received in the school a decision has to be made on whether it is or could be a matter of gross misconduct. The person most likely to receive the allegation and make this decision would be the headteacher or the chair of governors (if the allegation is about the headteacher). The headteacher or chair of governors should make an initial assessment of, but not investigate, the nature and circumstances of the allegation. This should establish:


9.2 The headteacher or chair is not expected to make this decision in isolation. The headteacher should discuss the allegation with the chair and the LA HR adviser if in any doubt. If the allegation is about the headteacher, the chair is strongly recommended to contact the LA HR adviser. If following this initial assessment the decision is that the allegation, if proven, constitutes gross misconduct, the chair of governors should inform the members of the staff disciplinary and dismissal committee that they will be needed. If the headteacher/chair and LA HR adviser cannot agree on a way forward, then gross misconduct procedures should be applied.

The investigation

9.3 All gross misconduct allegations will be subject to staff disciplinary proceedings, which means that the allegation should be promptly and fairly investigated. Arrangements for an investigation should be commenced as soon as possible after the allegation has been received. The person making the allegation and the person against whom the allegation has been made should be notified that an investigation is to be undertaken. A full investigation must be completed but its extent may depend on the exact issue in question. Members of the staff disciplinary and dismissal or staff disciplinary and dismissal appeals committees should not be involved in carrying out the investigation in order to preserve their impartiality and objectivity.

Section 9: Stages of the procedure for considering allegations of gross misconduct

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9.4 Preferably the investigation should be carried out externally, e.g. by a person not associated with the case or the school. However, if this is not possible and the investigation is to be undertaken internally, it should be undertaken after seeking advice from the LA and/or diocesan authority (if appropriate). The person identified to investigate should be either a senior manager in the school, a LA or diocesan officer or another agreed appropriate person who has no involvement in the issues included in the allegation. If the LA carries out the investigation the investigator needs to be a different person and act independently from any LA officer who is acting as the adviser or clerk to the governing body to avoid any conflict of interest. If the allegation is against the headteacher, the same principles of impartiality and objectivity would apply to any person appointed to investigate the allegation. This person should not be a member of staff in the school.

9.5 If the investigation is to be external the LA (or diocese) may be in a position to advise on a suitable independent person. Often it will be possible for an officer from another LA to carry out the investigation. This should always be the case if the LA itself has brought the allegation which is to be investigated to the attention of the headteacher or governing body. The member of staff has the right to object to an investigator where there is concern, supported by evidence, about an individual’s ability to act impartially and without bias. Although not prescribed in law, the Welsh Government recommends that employees or representatives of LAs or diocesan authorities in whose authority or diocese the school is, together with locally elected councillors, should not be appointed as an external impartial investigator.

Conduct of the investigation

9.6 The responsibility of the investigator is to:

• explore the facts relating to an allegation, starting by interviewing the person who has raised the concern/allegation, the member of staff against whom the allegation has been made, any witnesses from both parties, etc.

• produce a balanced factual report of the evidence from the investigation, in accordance with the suggested investigation framework in paragraph 9.9, for the chair of governors. It should not include any recommendations or conclusions, but should include clear findings of fact.

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9.7 The person investigating needs to:

• be clear about the nature and content of allegations• read all the documentary evidence• define the areas to be investigated and the parameters of the

investigation• draw up lists of people to be interviewed and the order of

interview• draw up a list of issues/topics to be raised in the interviews to

clarify the allegations • consider whether they need to use a note taker for the interviews

and/or to tape record interviews (in the latter case having sought the agreement of the person being interviewed)

• consider whether translation or interpretation facilities are required

• consider confidentiality issues• write up or arrange to have written up all interview notes, which

should be signed and dated promptly• produce a report in accordance with the investigation framework

set out below• pass all documents to the headteacher and chair of governors

and ensure that duplicates are held. For allegations against the headteacher, the chair and another governor will be given the papers

• provide the member of staff with a record of all documents to ensure that all evidence is released should the matter proceed to a hearing.

9.8 In order to avoid any duplication of interviews the suggested order for interviews would be:

• the person making the allegation• their witnesses• the member of staff against whom the allegation has been made• any further witnesses identified by them.

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Suggested framework for the investigation report

9.9 The investigation report should be clear, recording the evidence/facts gathered, lists of witnesses, findings, etc. A suggested template would be:

• date allegation received by the investigator• name of the referrer (who should be the chair of governors)• details of the allegation• name of the person making the allegation• name of the member of staff against whom the allegation has

been made• list of person/witnesses interviewed• list of persons not interviewed and the reasons why• list of documents considered, i.e. school policy, reports, police

evidence, etc.• evidence and analysis of facts gathered• summary of the factual findings• name of the investigator• date investigation completed.

9.10 The investigator should not investigate any matter that is not included in the referral from the governing body. Therefore the chair of governors has to be very clear about what issues require investigating. If the investigator is asked to investigate or otherwise identifies additional issues, they should immediately contact the chair of governors and the member of staff or their representative and await instructions from the chair about how to proceed.

9.11 The report must not contain any expressions of personal opinion or judgement on the part of the investigator in relation to evidence, witnesses or the staff member under investigation, e.g. ‘person x was uncooperative because they refused to meet despite numerous dates being offered’. The report must not contain recommendations or conclusions as to what action should be taken next and should state this at the start of the report.

9.12 The investigator should not give undertakings of confidentiality to those making allegations or interviewed. Evidence compiled in the investigation must be made available to the parties in any subsequent disciplinary proceedings and those giving evidence should be informed before giving their evidence that this will happen.

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9.13 The point at which the member of staff is first interviewed by the investigator will depend on the nature of the allegation(s) made against the member of staff where they trigger other procedures (for instance there may be a delay if the matter is being investigated by the statutory authorities). Prior to the interview the member of staff should be informed in writing of their rights under the school’s disciplinary procedure, including the right to be accompanied by a work colleague or a representative of the member of staff’s trade union at all meetings held in connection with the disciplinary matter (if such advice has not already been given). As disciplinary hearings are not courts of law, it is recommended that members of staff and witnesses do not appoint legal representations such as lawyers to act on their behalf.

9.14 Where allegations are made against a trade union representative the investigator should first, where practicable, discuss the case with a senior representative or full-time official of the union concerned prior to commencing the formal investigation.

Interviewing a member of staff

9.15 At the start of the investigation interview, the member of staff should be informed of the allegation(s) and be given as much information and evidence as possible and be invited to respond. However, there may be instances where disclosure of detailed information at this stage might hamper the investigation and/or put vulnerable witnesses at risk of intimidation. In such situations the member of staff should be given as much information as appropriate. The individual has the right to respond or to decline to respond.

9.16 The member of staff should be invited to identify any persons who may have information relevant to the investigation. They should be added to the list of people to be interviewed by the investigator.

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Interviewing witnesses

9.17 A suitable venue and time should be arranged with witnesses. This may mean meeting at a non-school site, e.g. the LA offices, or outside of school hours. Witnesses should be offered the opportunity to bring a companion, or the member of staff’s trade union representative with them. The Welsh Government strongly recommends and considers it is best practice to request, in writing, the consent of the parents, carers or guardians before any child is interviewed. Any child or vulnerable adult should also be accompanied at interview by a parent, carer, guardian or any other person the child or vulnerable adult wishes to be present. At the beginning of each interview the interviewer should provide details of the allegation and explain the purpose of the investigation.

Record of interviews

9.18 A note should be taken during interviews and minutes of the interview ought normally to be completed within two school days of the interview, using any agreed tape recording or recording method to assist in this, e.g. handwritten notes or records, signed and dated by the relevant parties. All present at the meeting should be asked to agree the minute as a true and accurate record of the interview.

Outcome of investigation for allegations other than child protection

9.19 Once all the relevant persons have been interviewed and all the evidence has been considered, the investigator needs to complete their report for the headteacher and chair of governors (or chair of governors and another governor in respect of the headteacher). The investigator’s report should be factual and objective and based on evidence gathered. If agreement cannot be reached between the headteacher and the chair of governors (or chair of governors and another governor in respect of the headteacher) on the way forward, it is recommended that the matter should be referred to a disciplinary hearing in front of a staff disciplinary and dismissal committee. The clerk to the governing body should be present at these meetings to record the discussions and decisions made and to ensure that appropriate letters can be written and arrangements for any hearing commenced.

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9.20 If an investigation which meets the standards and criteria for a sound investigation determines that there is no case to answer in that there is no evidence to support the allegation, then no disciplinary action needs to be taken. However, if there is contradictory evidence in the report and it is not conclusive, the case should be heard. The member of staff would need to be informed immediately of any decision made.

9.21 The role of the headteacher and chair of governors (or chair of governors and another governor in respect of the headteacher) is to decide, based on the information in the report, what action to take. This could be that:

• there was no evidence to support the allegation and therefore no disciplinary action needs to be taken

• based on evidence, the allegation(s) do not amount to gross misconduct but to lesser misconduct which can be dealt with by the headteacher, chair of governors or senior management of the school (see Section 7)

• the allegation(s) are supported by evidence and sufficiently serious to require full consideration by the disciplinary and dismissal committee of the governing body.

9.22 Steps need to be taken to ensure that the investigation report and any supporting documents are stored securely until required for the disciplinary hearing. A copy of the investigation report, including all interview notes, should automatically be provided to the member of staff against whom the allegation(s) have been made, if the case is to proceed.

9.23 The member of staff against whom the allegation has been made should be advised of the outcome as soon as possible in writing by the clerk to the staff disciplinary and dismissal committee.

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9.24 Where the investigation report as submitted is not fit for purpose, for example:

• it does not meet the investigation criteria set out in the framework• it does not deal with the allegations as set out in the brief• where it is otherwise clear that it is not based on the facts or is in

some material way prejudiced.

Consideration should be given to reopening the investigation to ensure the report is complete and balanced. This should be done following discussions and with the consent of all parties.

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Please note that at the time this guidance is being issued electronically, the Welsh Government is reviewing the legislation surrounding the Independent Investigation Service(IIS), as referred to in paragraph 7(3) of the Staffing of Maintained Schools (Wales) Regulations 2006. We will be consulting on any proposed changes but until such time as changes are made the guidance in this section is relevant and should be taken into account.

10.1 Guidance, definitions and other documents relevant to the consideration of child protection allegations are noted in Annex C. Governing bodies should also be particularly aware of the All Wales Child Protection Procedures 2008. There is no definition of child protection in law but the opinion of the Welsh Government is that referral to an independent investigator in accordance with education law should only occur in the circumstances set out in paragraph 10.14.

Receipt of allegation

10.2 Allegations involving issues of child protection should be brought immediately to the attention of the headteacher (or the chair of governors if the allegation is against the headteacher) and the designated child protection officer in the school.

10.3 The headteacher (or chair of the governing body if the allegation is in respect of the headteacher), should make initial enquiries (but not investigate) to determine the nature and circumstances of the allegation. These initial enquiries should establish:


If after making these initial enquiries the headteacher considers unequivocally that the allegation is false because the circumstances of the allegation show that it is not possible for it to be true, they must discuss the matter with the chair of governors and the lead child protection officer in the LA to determine whether a referral to social services and/or the police is required. If the decision is that it is not then the headteacher may not take any further action against

Section 10: Procedures for handling child protection allegations

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the member of staff and no referral to the statutory authorities is required. If the allegation is about the headteacher, the chair of governors would probably be the person who makes enquiries about the circumstances of the allegation. The chair must then have a discussion with the LA lead child protection officer as to whether further action is required.

10.4 If, following these enquiries, the initial assessment by the headteacher and/or chair of governors indicates that an allegation might be true or raises concerns about the behaviour of the member of staff, there needs to be an immediate referral to the statutory authorities (social services and/or the police) in accordance with local child protection procedures. At this point the headteacher/chair may consider whether suspension of the member of staff is required. See Section 12 for information.

10.5 The member of staff and their union representative would normally be informed that a referral is being made, but there will be some circumstances where this will not be appropriate (an example would be where knowledge of the referral could lead the member of staff to seek to tamper with evidence).

Referral to the statutory authorities

10.6 Following receipt of a referral, the social services will make a brief initial assessment and hold a strategy discussion. The purpose of the strategy discussion is to share and discuss in detail all information gathered to date, as well as the nature of the allegation. The strategy discussion may agree that a strategy meeting should be held. Local protocols and procedures should describe the circumstances under which a strategy meeting should be arranged21. If they do not agree that a strategy meeting should be held then the allegation is referred back to the headteacher and/or chair of governors.

21 www.awcpp.org.uk/9547.html?diablo.lang=eng All Wales Child Protection Procedures 2008, pages 62–64

www.awcpp.org.uk/9547.html?diablo.lang=eng

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Role of the statutory authorities

10.7 The strategy meeting decides whether enquiries by the social services and/or police will proceed further, and if so plans the process and management of the enquiries. All decisions made and the basis for them should be clearly recorded. In the event of a request for copies of the minutes to be provided to anyone other than those invited to attend the strategy meeting, the chair of the meeting will consider what, if any, information is disclosed having sought legal guidance22. Information about the scope and purpose of the strategy meeting can be found in the All Wales Child Protection Procedures 200823.

10.8 The statutory authorities may decide to pursue the allegation and refer the matter to the Crown Prosecution Service because of potential criminal behaviour.

10.9 While the statutory authorities are considering the allegation, the governing body should not take any action other than to review and confirm the membership of the staff disciplinary and dismissal and staff disciplinary and dismissal appeals committees. Governing bodies should appoint all members of the staff disciplinary and dismissal committee and staff disciplinary and dismissal appeals committee and must record their choices. Members of either committee should not be related to one another. Where appropriate at this stage the governing body should also inform other relevant authorities such as the diocesan authority and any trustees if appropriate.

10.10 Once the statutory authorities have completed their consideration of the allegation, the matter is referred back to the governing body to complete the staff disciplinary process. This must happen even if the statutory authorities take the decision not to pursue a criminal investigation.

22 www.awcpp.org.uk/9547.html?diablo.lang=eng All Wales Child Protection Procedures 2008, pages 64–67

23 www.awcpp.org.uk/9547.html?diablo.lang=eng

www.awcpp.org.uk/9547.html

?diablo.lang

www.awcpp.org.uk/9547.html

?diablo.lang

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10.11 It is not the role of the statutory authorities to:

• recommend that a member of staff should be suspended• decide whether a disciplinary hearing should be held• determine whether the allegation is referred for independent

investigation• make the referral• prevent a referral being made• contact the independent investigator and cancel a referral• brief the investigator or intervene in the investigation.

10.12 The headteacher, chair of governors, the school’s designated child protection officer (as appropriate) and LA lead child protection officer should discuss:

• whether the allegation constitutes child protection, and the actions of the member of staff, if proven, would be considered to amount to gross misconduct and therefore the matter should be independently investigated

• whether there is evidence of misconduct which should be dealt with through the school’s agreed lesser misconduct procedure

• whether no further action is required.

10.13 If there is any doubt at all, or agreement between the headteacher, chair of governors and LA lead child protection officer cannot be reached on whether the issue is a gross misconduct matter, the Welsh Government recommends that the matter is referred for an independent investigation.

Referral for independent investigation

10.14 The chair of the governing body must refer the matter for independent investigation if the allegation is considered to be a child protection issue which relates to a member of staff in the school. This must be done prior to the hearing of any disciplinary proceedings.

A referral for independent investigation should be made in the following circumstances:

• where the pupil has suffered or is likely to suffer significant harm• where the pupil has not suffered or is not likely to suffer

significant harm but the allegation relates to inappropriate behaviour or poor safeguarding practice which may constitute gross misconduct

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• where a child protection case has gone to court and a criminal conviction has been secured

• where a child protection case has gone to court but no criminal conviction has been secured

• where a child protection case has been referred to the CPS, but has not resulted in a prosecution

• where the police and social services have concluded that there is insufficient evidence to take the issue forward through the criminal justice system.

10.15 Where a child protection case has gone to court and may result in a caution or a custodial sentence being imposed, the independent investigator is still required to consider the evidence and make a report to the governing body. This is because the governing body is required to complete the disciplinary process. The staff disciplinary and dismissal committee will need to formally determine whether or not the member of staff’s contract should be terminated in accordance with the law in the 2006 staffing regulations.

10.16 If a member of staff resigns after an allegation has been made, the disciplinary process still needs to be completed by the governing body and the appropriate authorities informed if the outcome is that the member of staff would have been dismissed had they still been employed (refer to Annex D concerning supply of information).

Appointment of an independent investigator for child protection allegations against school staff

10.17 Regulation 7(3) of the 2006 staffing regulations24 places a requirement on governing bodies to appoint an independent investigator to investigate allegations involving child protection issues made against school staff, prior to the hearing of any proceedings relating to those allegations. The governing body must record their decision to refer the matter for an independent investigation in the minutes.

10.18 A restriction is imposed – Regulation 7(4)25 – on who can be appointed by the governing body as an independent investigator. The independent investigator cannot be:

• a governor of the school in question

24 www.opsi.gov.uk/legislation/wales/wsi2006/20060873e.htm (Regulation 7(3))25 www.opsi.gov.uk/legislation/wales/wsi2006/20060873e.htm (Regulation 7(4))

www.opsi.gov.uk/legislation/wales/wsi2006/20060873e.htm


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• a parent/carer of a current or former pupil of the school in question

• a current or former member of staff at the school in question• a person currently employed by the LA that maintains the school.

10.19 Subject to these restrictions, a governing body can choose who to appoint as an investigator. To assist governing bodies the Welsh Government has established the IIS to provide trained and experienced investigators to investigate child protection matters. This service is free of charge to governing bodies. Governing bodies are free to choose other independent persons to investigate child protection allegations provided they comply with the criteria in paragraph 10.18. The LA or diocesan authority (where appropriate) may recommend suitable persons to carry out the investigation. However, governing bodies must be aware that if they choose to appoint such an investigator they will have to meet the costs from the school’s delegated budget.

10.20 It is important to note that the independent investigator’s contact in relation to the running of the investigation should be with the governing body (e.g. the chair of governors) and not the LA or headteacher. Should the IIS receive a referral from the headteacher or LA the investigator will be required to approach the chair of governors and obtain their agreement to the referral being made and confirmation that the chair/headteacher and the LA lead child protection officer agree to the referral being made. (Refer to Annex H for information on the IIS.)

10.21 Where a governing body has made a referral to the Welsh Government’s IIS, governing bodies or the member of staff may object to the investigator assigned if they have evidence that the person:

• is in one of the categories excluded by regulation • is known to any member of the staff disciplinary and dismissal

committee • is known to any member of the staff disciplinary and dismissal

appeals committee• is known to the staff member or their union representative• if there is a question as to their impartiality.

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In these circumstances the chair of the governing body would need to present the evidence to the Independent Investigation Service Manager and ask for another investigator to be assigned. Any complaint about the investigation or the investigator should be dealt with before the report is submitted.

The role of the investigator

10.22 The role of the investigator is to:

• operate within the investigation framework set out in Section 9• define the areas to be investigated and the parameters of the

investigation• consider all the evidence, including that supplied by the statutory

authorities, and explore the facts relating to an allegation This may mean interviewing witnesses although the investigator will try to minimise this where information can be obtained from documentary evidence

• produce a report with factual findings based on evidence provided • present the report at the disciplinary hearing and any appeal

hearing, if requested.

10.23 Once an independent investigation is requested by the chair of governors, it is the responsibility of the investigator to determine the questions to be asked. No persons or body should seek to put forward or influence questions to be asked. The report of the investigation belongs to the school’s governing body and should be returned to the governing body as it is responsible in law for the disciplinary process. It should not be sent to the LA.

10.24 In line with paragraph 10.10, the independent investigator should not commence their investigation until after the statutory authorities have completed their investigation.

10.25 At all times, the investigator will focus on factual evidence. The investigator will present findings impartially in the report and in any presentation to the committee. The investigator should not represent the views of any of the parties involved. The investigator should not make any comments, or express any personal opinions on the member of staff, the allegation or evidence gathered, the governing body or the LA.

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Sharing of information

10.26 In undertaking the investigation of any child protection allegation against school staff, an independent investigator may seek the agreement of the statutory authorities to the sharing of information gathered during a child protection investigation. The sharing of such information should take place within the framework of local multi-agency protocols, which are in place in each Local Safeguarding Children Board’s area. There is a presumption that all information will be shared and that any information collected during the independent investigation will be shared with all parties.

10.27 Therefore, in order to avoid re-interviewing children and vulnerable adults, where information is held by the statutory authorities and any necessary parental/carer/guardian consent has been obtained, the relevant and appropriate information should be shared with the independent investigator. Consideration should also be given to obtaining the consent of the child, where necessary.

The investigation and the subsequent decision‑making process

10.28 The purpose of the independent investigation is to ensure a completely impartial and unbiased investigation is carried out. The report, once completed, should be given to the headteacher and chair of governors (or chair of governors and another governor in respect of the headteacher), who are responsible for taking decisions on the report. They will need to consider these findings and decide whether based on the findings of the report:

• there is evidence to support a decision that the child protection allegation has some foundation and constitutes gross misconduct and that it will therefore require a staff disciplinary and dismissal committee hearing

• there is evidence to support a decision that the allegation constitutes lesser misconduct which can be dealt with by the headteacher (or chair of governors if the allegation is against the headteacher)

• there is no evidence to support the child protection allegation and no further action needs to be taken against the member of staff.

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The clerk to the governing body should be present to record the decision of the headteacher/chair of governors (or chair of governors and another governor if the allegation is against the headteacher).

10.29 It is not the role of the investigator or any other individual or body to take this decision. In considering the investigation report, it is important for all parties to have regard to and comply with the Data Protection Act 1998. The parent/carer/pupil should be informed that following an investigation a decision has been reached.

10.30 If the headteacher and chair of governors (or chair of governors and another governor in respect of the headteacher) cannot reach an agreement on what action to take, the Welsh Government recommends that a full disciplinary hearing before the staff disciplinary and dismissal committee should be convened.

10.31 If the decision is to have a full disciplinary hearing, the independent investigator may be invited to attend the hearing as a witness in order to present their report only. The investigator will not act on behalf of any party.

10.32 The member of staff and union representative must be informed of the decision as soon as is reasonably practicable.

10.33 The chair of governors will ensure that all relevant papers, including the full investigation report, is sent to the member of staff and/or their union representative and the person presenting the case against the member of staff in time for them to prepare their case. The timescale should be set out in the governing body's own agreed staff disciplinary procedure. However, in the timescales set out in Annex F the Welsh Government considers this should be at least three weeks prior to the disciplinary hearing. The staff disciplinary and dismissal committee must also be given all evidence from the investigator at the appropriate time. In the timescales in Annex F the Welsh Government considers therefore that copies of all documentation should be sent to the committee at least two days prior to the hearing. Again the governing body must also take account of the timescales set out within its own agreed procedure. No party should remove any evidence from the investigation report before it is sent to the governing body staff disciplinary committee.

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Appointment of independent non‑governor member on staff disciplinary and dismissal committee and staff disciplinary and dismissal appeals committee

10.34 Under regulation 55(3) of the 2005 school government regulations,26 the governing body must appoint an independent non-governor member to the staff disciplinary and dismissal committee and staff disciplinary and dismissal appeals committee. The independent member has voting rights and must not be:

• a governor of the school in question• a parent/carer of a current or former pupil of the school in

question• a current or former member of staff from the school at which the

person subject to the disciplinary hearing is employed• an employee of the LA that maintains the school• related to any other member of either committees.

The independent member may, however, be a governor, parent/carer of a pupil or a member or former member of staff at another school either within or outside of the maintaining LA area, or an employee of another LA.

10.35 Although not prescribed in law, the Welsh Government considers that locally elected councillors should not be appointed as an independent non-governor member with voting rights. Also, in respect of faith-based schools, employees or representatives of the diocesan authorities in whose diocese the school is situated should also not be considered as independent members (although a diocese may suggest a person such as a retired headteacher for this role). Such a person would not be regarded as a ‘representative’ of the diocesan authority for the purposes of this section.

10.36 Parties should be afforded the right to object to the non-governor member on the basis of evidence that calls into question their ability to act impartially in the circumstances of the case. The objecting party should put the reasons for their objections in writing to the chair of governors as soon as possible to avoid delays in the process.

10.37 The non-governor should normally take the place of one of the three governors assigned to sit on the staff disciplinary and dismissal committee and the staff disciplinary and dismissal appeals committee.

26 www.opsi.gov.uk/legislation/wales/wsi2005/20052914e.htm (Regulation 55(3))


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This maintains an odd number of governors to make decision making easier and avoid the chair of the committee having a second or casting vote. The non-governor member cannot be chair of either committee. A different independent non‑governor member is required for each committee.

10.38 The non-governor member of the governing body does not take the place of the adviser from the LA (whose role is to provide procedural advice to the staff disciplinary and dismissal committee on the case in question). The role of the non-governor member is to carry out the same responsibilities as other governor members of the staff disciplinary and dismissal committee, e.g. they will:

• receive all relevant papers for the hearing at the same time as the other governors

• sit as part of the committee during the hearing and ask questions • take part in discussions to assist the committee to reach fair and

balanced decisions based on the evidence• take part in discussions after the hearing to help focus the

committee’s attention on the relevant facts to assist it to reach fair and balanced decisions based on the evidence.

If the allegation is withdrawn

10.39 Children and young people may withdraw an allegation for a variety of reasons. However, it is important that effort is made to understand why the child or young person has withdrawn an allegation and whether the issue still needs review. It is also recommended that a record is kept of incidences where allegations have been withdrawn.

10.40 If a pupil makes an allegation it is the pupil who should withdraw it. The governing body should not accept a withdrawal of an allegation by another person on behalf of the pupil, even a parent or carer, unless the written or oral agreement of the child is obtained in the presence of the headteacher (or chair of governors if the allegation is about the headteacher), or a member of the staff disciplinary and dismissal committee.27 The child may be accompanied by an appropriate adult during this discussion.

27 School Governors’ Guide to the Law (Welsh Assembly Government, 2009). Chapter 10, pages 34–35 www.wales.gov.uk/topics/educationandskills/schoolshome/schoolfundingandplanning/schoolgov/schoolgovguide/?lang=en

www.wales.gov.uk/topics/educationandskills/schoolshome/schoolfundingandplanning/schoolgov/schoolgovguide/%3Flang%3Den


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10.41 If the person making the child protection allegation withdraws it for any reason, at any point in the process, there may not be a need to appoint an independent investigator. If an allegation is withdrawn when the independent investigation has already commenced, the investigation may be stopped with no report going to the headteacher and/or the chair of governors (or the chair of governors, and another governor if the allegation was about the headteacher). It is however up to the governing body to decide whether there are any staff discipline matters that still need to be considered. Such staff disciplinary matters, however, may not require independent investigation and may be investigated by the school.28

Anonymous allegations

10.42 Complaints or allegations that are made anonymously will not normally be considered. However, such allegations may be handled at the discretion of the headteacher and/or chair of governors and may be considered using other procedures. Anonymous complaints relating to child protection issues could be referred to the relevant authorities if it was considered, on the balance of probability, that the complaint could have substance.

Malicious/false allegations

10.43 If the investigation shows that the allegation was malicious and/or vexatious, or made for personal gain, then the governing body should consider taking disciplinary action where appropriate against the person or pupil who made the allegation in line with the relevant policy, e.g. school behaviour policy, as appropriate.

10.44 Where it is shown that a parent/carer or a non-employee has made a false or malicious/vexatious allegation against a member of staff, the staff member should seek their own legal advice on what courses of action are open to them. This is not a matter for the governing body to become involved in.

28 School Governors’ Guide to the Law (Welsh Assembly Government, 2009) Chapter 10, pages 34–35 www.wales.gov.uk/topics/educationandskills/schoolshome/schoolfundingandplanning/schoolgov/schoolgovguide/?lang=en




Section 11: Disciplinary hearing

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Guidance Circular No: 007/2011

(This applies to all gross misconduct allegations.)

A case to answer

11.1 Where the investigation demonstrates that there appears to be sufficient evidence to warrant a disciplinary hearing with the staff disciplinary and dismissal committee, a hearing must be arranged. It is advisable to contact the LA HR department for all gross misconduct hearings. It is also advisable to have a HR representative from the LA present with the chair at a hearing if the hearing is against the headteacher. The member of staff should be given as much information as possible, in writing, providing it does not compromise or place a member of staff or pupil in a difficult situation, e.g. by identifying a pupil who may be a witness, or identifying a member of staff who has whistleblown. (Revealing these details could provide an opportunity for the member of staff against whom the allegation has been made to discuss the matter inappropriately with the pupil or member of staff.)

11.2 The information given to the member of staff should include:

• the date and time of the hearing • the detail of the allegation(s) together with any supporting

documents• the names of any witnesses to be called if appropriate• who will be advising the headteacher or chair of governors• a copy of the up-to-date procedure• the right to be accompanied by a companion or a representative

of the member of staff’s trade union• the possible outcome of the hearing.

11.3 The member of staff and their representative should have a reasonable amount of time to prepare for the hearing (see Annex F for suggested timescales).

Arranging the hearing

11.4 The clerk to the governing body should arrange a date, time and venue for all interested parties. See paragraph 11.16 for role of the clerk.

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Provision of written documents

11.5 The member of staff needs to supply the clerk with a list of witnesses and any supporting documentation. Papers ought to be given to members of the staff disciplinary and dismissal committee before the hearing to give them time to read and absorb the information, in accordance with the timescales in the governing body’s own agreed disciplinary procedures. To help governing bodies the Welsh Government has set out suggested timescales in Annex F. Submission of any written documentation and additional witnesses at the hearing will be permitted at the discretion of the committee.

11.6 The hearing should be held privately and in a place where there will be no interruptions. The member of staff may offer a reasonable alternative time within five school days of the original date if either they or their chosen companion cannot attend. The committee may also arrange another meeting if an employee fails to attend through circumstances outside their control, such as illness (refer to paragraph 11.27–11.29 for further information29).

Attendance and advice of chief education officer and diocesan representative11.7 In all maintained schools, the chief education officer or their representative are entitled to attend for the purpose of giving advice on all proceedings relating to any decision to dismiss or discipline a member of staff. The chief education officer or their representative must be notified of the meeting at the same time as the member of staff and the person presenting the case against the member of staff30.

11.8 In voluntary-aided schools, the diocesan officer or their representative has the same advisory rights as those given to the chief education officer. In foundation schools the governing body may agree with the diocesan authority to award those same advisory rights to the diocesan officer or their representative. The diocesan director should also be notified of the meeting.

29Discipline and grievances at work: The ACAS guide (Acas, 2009) www.acas.org.uk/index.aspx?articleid=217930 www.opsi.gov.uk/legislation/wales/wsi2006/20060873e.htm (Regulation 17(9))

www.acas.org.uk/index.aspx?articleid=2179


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Attendance and advice of the headteacher

11.9 The headteacher is entitled to attend all hearings of the staff disciplinary and dismissal committee and the staff disciplinary and dismissal appeals committee to give advice, except:

• where the headteacher is the person against whom disciplinary action is being taken

• where the headteacher is a witness to the incident which led to disciplinary action being contemplated

• where the headteacher is the presenting officer.

11.10 Governing bodies must take into consideration any advice offered by these persons listed in paragraphs 11.7–11.9 before making a decision31.

Role of the advisor

11.11 The person(s) advising the staff disciplinary and dismissal committee and staff disciplinary and dismissal appeals committee should not remain with the committee during their deliberation on the case. The advisers should provide advice on legal or procedural issues and should not express opinions on the merits of the case, the people involved or the evidence. All parties should agree on whether the LA gives advice in private or in front of all parties and this should be fully recorded in writing by the clerk to the staff disciplinary and dismissal committee. The advisor should also seek, through their advice, to ensure that deliberations of the governing body are sound to avoid the case ending in an employment tribunal.

Role of the presenting officer

11.12 At the hearing, the case against the member of staff and the evidence should be detailed by the presenting officer. This person is usually the headteacher (if the allegation is not about the headteacher). In the case of an allegation against the headteacher, the chair of governors or a LA officer may present the case. It must be made clear to all parties who will undertake this role. Witnesses may be called (if appropriate) and can be questioned by the other party and/or by the staff disciplinary and dismissal committee. The presenting officer and the member of staff or their union representative will have the opportunity to make a final submission to the staff disciplinary and dismissal committee at the end of the

31www.opsi.gov.uk/legislation/wales/wsi2006/20060873e.htm (Regulations 13 and 21)


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hearing. The presenting officer cannot also be the investigating officer or a witness. The presenting officer arrangements should be agreed by all parties.

Role of the committee chair

11.13 The committee chair needs to:

• check everyone present has the papers and that they are the same papers

• explain the remit of the staff disciplinary and dismissal committee at the beginning of the hearing which is to deal with the allegations investigated and any evidence relating to those allegations

• set out the order of proceedings• ensure all parties have the opportunity to make their contribution

without undue interruption• decide whether questioning by committee members should take

place during the presentation of the case or on completion of the presentation and, similarly, how questioning of the member of staff (or their representative) and witnesses should be handled

• ensure the key facts are drawn out• ensure that the disciplinary hearing is conducted in a manner

conducive to all parties being treated with respect• ensure that witnesses are put at ease• make appropriate arrangements to hear evidence from any child

witnesses including the need for advocacy support, and that the venue and time are accessible and non-intimidating for children

• adjourn the hearing for an appropriate period if it becomes aggressive or confrontational so as to calm the situation

• act with impartiality and avoid demonstrating bias.

At the conclusion of the hearing the chair should ask the parties if they have been treated fairly and consider the questions listed in Annex G.

Role of committee members

11.14 The members of the staff disciplinary and dismissal committee should read all of the papers carefully before the hearing. The functions of the committee members are to:

• consider the evidence

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• establish the facts in light of the evidence presented• be mindful of case law• after the hearing, come to a decision based on the factual

evidence• decide on any sanction to be imposed• ensure that the clerk accurately records their discussions and

decision in writing and the reasons for the decision, and presents accurate minutes.

Role of the companion or union representative

11.15 Depending on the member of staff’s choice, the companion may or may not be a union representative who should be allowed to:

• address the hearing• attend on behalf of the member of staff• present the member of staff’s case• sum up the member of staff’s case• represent the interests of the member of staff• seek clarification on behalf of the member of staff• confer with the member of staff during the hearing. • answer questions on behalf of the member of staff if they are not

present.

Where the member of staff is not present the companion/union representative cannot be required to answer on matters of evidence. A governing body or committee may not disadvantage, discriminate or victimise and blame a member of staff on the basis of advice or representations made on their behalf.

Role of the clerk to the committee

11.16 The clerk should be someone who understands the staff disciplinary process and has attended training (refer to Section 3 for more information on training).

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11.17 Before the hearing the clerk’s key tasks (with advice from the LA) are to:

• arrange the date, time and place for the disciplinary hearing, seeking agreement to dates from members of the committee, the member of staff, any witnesses appearing in person and the LA and diocesan authority, if appropriate. If the member of staff has subsequently resigned or is on sick leave they should still be invited to attend

• inform the member of staff in writing of the purpose of the hearing and the range of possible outcomes

• confirm the right of the member of staff to be accompanied by a companion or a representative of the member of staff’s trade union

• inform the member of staff in writing of the membership of the staff disciplinary and dismissal committee and of the staff disciplinary and dismissal appeals committee

• inform the member of staff (and the person presenting the case against them) of the full details of the allegation, the evidence to be presented and the names of any witnesses to be called, etc.

• inform the member of staff of who is to be the adviser to the staff disciplinary and dismissal committee and to the staff disciplinary and dismissal appeals committee

• inform the member of staff and any other parties of the date by which all relevant documentation should be received by the clerk prior to the hearing

• arrange for the documentation from both parties (including up-to-date procedures) to be distributed to the member of staff and their representative prior to the hearing and in accordance with the timescales in the policy.

11.18 During the hearing it is the clerk’s task to:

• record the proceedings (including discussions by the committee in private), decisions and reasons for those decisions

• record all procedural advice to be given in front of all parties.

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11.19 After the hearing it is the clerk’s task to:

• prepare a letter on the school’s headed paper using templates attached at Annex J to this guidance, or prepared by the LA, to notify the member of staff of the disciplinary and dismissal committee’s decision (for the headteacher to sign if the allegation is about a member of staff, or the chair of governors to sign if the allegation is about the headteacher) and the reasons for that decision. The LA and diocesan authority if appropriate should not be informed of the decision until after any appeal has been heard, or if there is no appeal, at the end of the period to submit an appeal. The letter should also inform the member of staff of the appeal process

• send notes/minutes taken by the clerk during the hearing to all parties, excluding the complainant and any witnesses.

Hearing procedure

11.20 The following are the suggested stages for the ordering of proceedings.

• The chair introduces the members of the committee and the clerk.

• The presenting officer (the person presenting the evidence against the member of staff) sets out the allegations against the member of staff, presents any written or other evidence and calls and questions witnesses.

• The member of staff and/or their representative ask questions of the presenting officer and/or witnesses. Members of the staff disciplinary and dismissal committee question the presenting officer and/or any parties called to give evidence against the member of staff.

• The member of staff and/or their representative presents their case, including any relevant written or other evidence, and calls witnesses.

• The presenting officer and/or members of the staff disciplinary and dismissal committee question the member of staff and any witnesses called on behalf of the member of staff.

• Witnesses leave the room after they have given evidence and been questioned by both parties but should remain on hand in case of further questioning by the staff disciplinary committee.

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• The presenting officer and the member of staff or their representative each sums up their case. If these persons do not wish to hear the advice from the advisors they should leave the hearing at this point.

• All parties hear any advice which the chief education officer and, if applicable, the diocesan director or their representatives, may wish to offer. These advisers, together with the presenting officer and the member of staff or their representative, then leave the hearing.

• The staff disciplinary and dismissal committee continues in private, without advisers, other than the clerk, to make its decision.

• The staff disciplinary and dismissal committee can adjourn the hearing at any time for all parties to consider any new evidence or for private discussion. In addition all parties should be able to request an adjournment at any point.

11.21 At the conclusion of the hearing all parties should:

• have understood the nature of the proceedings• have been given proper opportunity to speak, put evidence

forward and respond to questions• feel that they have said everything they wished to say• feel that they have been treated courteously• feel that the staff disciplinary and dismissal committee has

listened to and understood all the points made• be clear as to when they will be informed of the staff disciplinary

and dismissal committee’s decision.

(Refer to Annex G for a checklist for hearings).

Decision reached after the hearing has taken place

11.22 When reaching their decision the members of the staff disciplinary and dismissal committee should:

• determine whether all the evidence relevant to the allegation has been considered

• determine whether the evidence presented supports the allegation.

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11.23 Having considered all the evidence and taking into account advice provided the committee can conclude that:

• the allegation is unproven and no action is to be taken• the alleged behaviour constitutes lesser misconduct and a formal

oral, written or final written warning should be issued (refer to Section 7 paragraphs 7.14–7.21 for further information)

• the allegation of gross misconduct is proven and depending on the severity of the misconduct an appropriate sanction should be imposed, including: – specified required training and development – relegation to a lower-grade position (if practical) and/or loss

of salary – summary dismissal.

11.24 Other than in exceptional circumstances, the decision and the reason for it should be given orally to the member of staff and/or their companion or trade union representative at the end of the hearing. In some cases it will not be possible to do this. Whether or not the decision is delivered orally, it should be confirmed in writing to the member of staff as soon as possible after the end of the hearing. Where the committee decides to issue a warning or impose a penalty, this and the reasons for the decision should be set out in the letter. If the outcome is dismissal, the reason for that dismissal should also be confirmed in writing.

11.25 Where a decision to dismiss the member of staff is taken and the LA holds the contract of employment for that member of staff, the committee must copy the letter to the chief education officer once the period allowed for the member of staff to appeal has expired and they have not appealed. The LA is required to dismiss the member of staff and should do so within 14 school days of notification of the decision by the staff disciplinary and dismissal committee or by the disciplinary and dismissal appeals committee32.

11.26 Where a decision to dismiss the member of staff is taken and the member of staff is employed by the governing body of the school (voluntary aided and foundation schools), the letter of confirmation to the member of staff should also include notification of dismissal and any appropriate period of notice.

32 www.opsi.gov.uk/legislation/wales/wsi2006/20060873e.htm (Regulation 17)


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11.27 Refer to Annex D for notification to the Independent Safeguarding Authority and the General Teaching Council for Wales as appropriate for dismissal of staff in any category of school. For information the UK Protection of Freedom Act 2012 will establish a new Disclosure and Barring Service (DBS). The functions of the Independent Safeguarding Authority (ISA) and the Criminal Records Bureau (CRB) are to be transferred to the DBS.

Disciplinary hearing – appeal

11.28 The member of staff is entitled to appeal against a decision of the staff disciplinary and dismissal committee. This notice of the intention to appeal needs to be lodged with the clerk to the disciplinary and dismissal appeals committee within a specified time limit which should be set out in the disciplinary policy. The Welsh Government has suggested timescales in Annex F. At this stage the appeal notice would need to include the grounds for the appeal which could include:

• that there has been procedural flaw in the first hearing• that the findings are inconsistent with the evidence produced• that the member of staff feels that the sanctions are inappropriate• that the investigation or disciplinary procedure was in some way

unfair or biased• that new evidence has come to light that was not considered at

the original hearing.

11.29 The grounds for the appeal and all supporting documentation must be submitted to the clerk of the disciplinary and dismissal appeals committee prior to the appeal hearing within the timescales set out in the agreed policy. See timescales at Annex F for the Welsh Government’s suggested timescales.

11.30 The purpose of the appeal hearing is to enable the disciplinary and dismissal appeals committee to consider the grounds for appeal as submitted by the member of staff or their union representative. The appeal should be heard by the disciplinary and dismissal appeals committee within a specified time. Appeal hearings will focus on the issues set out in the appeal notification, therefore the appeal process may not always take the form of a complete hearing. However, under certain circumstances, i.e. where new evidence comes to light or the first hearing process was flawed or biased, it may be appropriate to rehear part, if not all, of the case. The member of staff

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should be given notice of the date and time of the appeal hearing. Mutually agreeable times and dates should be arranged for all parties concerned.

11.31 The procedure for an appeal hearing should be the same as the procedure for the disciplinary hearing, except that that the committee needs to have regard to the record of the original disciplinary hearing and its findings.

11.32 The disciplinary and dismissal appeals committee can uphold the decision of the staff disciplinary and dismissal committee, impose a lesser penalty or conclude that no action should be taken against the staff member. The committee must not impose a more severe penalty. The member of staff should be given a copy of the minutes of the appeal hearing and a copy of the staff disciplinary and dismissal appeals committee’s conclusions.

Absence due to illness

11.33 In some cases, it would be deemed reasonable to rearrange a staff disciplinary investigation/hearing, with agreed timescales, where the member of staff is unavailable due to sickness. If, however, this continues, advice should be sought from the occupational health unit as to the member of staff’s ability to attend a meeting. Governing bodies should be sensitive to the possibility that approaches which defer disciplinary matters may create uncertainty for the school and added stress for the member of staff.

11.34 If the member of staff is expected to be sick for an indeterminate time, it may be reasonable to go ahead with the disciplinary hearing provided the member of staff and their representative have been advised of this and the member of staff is given the opportunity to use a representative or submit written evidence to present their case. The representative must have the same opportunity the staff member would have had to present evidence, call witnesses and sum up the staff member’s case.

11.35 If the member of staff were to decline the opportunity to use a representative to present their case and their own state of health would cause an extended delay in the proceedings, the disciplinary and dismissal committee should still go ahead on the basis that the member of staff had been afforded reasonable opportunity to make their case and that the hearing has to be arranged to conclude the case. However, the staff disciplinary and dismissal committee would

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need to consider whether this would be consistent with the need to act fairly and within its own procedures and whether the staff member might be able to mount a claim for breach of contract or unfair dismissal.

Resignation of a member of staff

11.36 A member of staff may resign while disciplinary procedures are pending or incomplete. Where the allegations relate to gross misconduct the headteacher (or the chair of governors in the case of allegations against the headteacher) will need to advise the staff member that disciplinary procedures will continue to completion. This is necessary for the employer to comply with its obligations under the Education (Supply of Information) (Wales) Regulations 2009 (refer to Annex D). In many cases the period of notice for resignation will allow the governing body sufficient time to conclude the disciplinary proceedings. If the time is insufficient the governing body must give the member of staff the opportunity to attend, but it cannot compel a former staff member to attend a disciplinary hearing. Nonetheless the governing body must complete the process and arrive at a view on the basis of the available evidence as to whether dismissal would have been the appropriate outcome. Annex D gives details as to the action a governing body must take to notify their decision to the appropriate bodies, currently the Independent Safeguarding Authority (ISA) for child protection cases and the General Teaching Council for Wales for others. The UK Protection of Freedom Act 2012 will establish a new Disclosure and Barring Service (DBS). The functions of the ISA and the Criminal Records Bureau (CRB) are to be transferred to the DBS.

Review

11.37 On completion of consideration of a disciplinary case, the staff disciplinary and dismissal committee or staff disciplinary and dismissal appeals committee should review the relevant school procedures to see whether they should be amended in light of the outcome of the case. The outcome of the case and any recommended changes to school procedures should be reported back to the governing body. The name of the member of staff should not be revealed. Where a change to the agreed staff disciplinary procedures is recommended this should be negotiated with the professional associations/teacher trade unions.

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Use of suspension

12.1 Only the headteacher or the chair of governors may suspend a member of staff, but that suspension may only be ended by the governing body (unless it delegates this decision to the chair of governors or the chair of the staff disciplinary and dismissal committee or the staff disciplinary and dismissal appeals committee). Any such delegation must be minuted.

12.2 The member of staff should be suspended through a meeting with the headteacher (or chair of governors if the headteacher is the subject of the allegation – see paragraph 12.7). Suspension is not a disciplinary penalty pending investigation, and it should be made clear to the employee that it is not an assumption of guilt. In law the headteacher and governing body do not have to consult one another before suspending a member of staff, but they may do so as a matter of courtesy if they wish. In law however, each must immediately inform the other and the LA of the decision to suspend.

12.3 LAs cannot suspend a member of staff unless they directly employ them.

12.4 Before taking the decision to suspend a member of staff, the headteacher and/or chair of governors should consider if other realistic and reasonable options are available, such as undertaking work that does not involve contact with pupils, or working from home. Given the potential impacts on the individual concerned, the pupils and other staff at the school, any decision to suspend should be carefully considered in line with the criteria at 12.5 and 12.6 below

12.5 Suspension pending disciplinary proceedings will only be considered where:

• it appears to be necessary to exclude the member of staff from the school for the protection of pupils, other staff or property, or for the orderly conduct of the school

• the continued presence at work of the member of staff would be an obstacle to proper investigation of the allegations made against that member of staff.

12.6 The use of suspension is appropriate where allegations relate to gross misconduct (refer to Annex B2 for examples of gross misconduct behaviour).

Section 12: Suspension

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12.7 If the headteacher is the subject of an allegation, the chair of governors acting on behalf of the governing body may be delegated the authority to suspend the headteacher. The decision of the governing body to delegate authority to suspend staff must be minuted. The chair of governors will need to carefully consider whether suspension is necessary and should discuss the matter with the LA before taking any action. In the absence of the chair the vice chair may take over this responsibility on behalf of the governing body once the governing body has agreed the necessary delegation.

12.8 Suspensions need to be reviewed at regular intervals. These intervals should be set out in the governing body’s disciplinary procedure, i.e. not less than every month, every three months, etc. It is expected that the governing body will delegate responsibility for these reviews to the headteacher, who should keep the chair of governors informed. If it is the headteacher who is suspended, the chair of governors should review the position at regular intervals in accordance with the policy (or another governor if the chair is tainted or is a member of the staff disciplinary and dismissal committee or staff disciplinary and dismissal appeals committee). The outcome of a suspension review should be conveyed to the member of staff in writing. If suspension is to continue the reasons for this should be given.

12.9 Suspension must be on full pay and without loss of emoluments.

Suspension interview

12.10 Where suspension is being considered, an interview should be arranged between the headteacher and the member of staff. Where consideration of the suspension of the headteacher is being considered the interview should be conducted by the chair of the governing body.

12.11 With reference to the Acas Code of Practice 1 – Disciplinary and grievance procedures, where the member of staff is a trade union or health and safety representative, the case should be discussed, after obtaining the member of staff’s agreement, with a senior trade union representative or permanent union official before the interview is arranged. From the outset, it should be made clear that the action being taken is not an attack on the functions of a trade union.

12.12 The headteacher or chair of governors should advise a member of staff/headteacher called to an interview to seek the advice and assistance of a companion or their union representative in good time.

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12.13 The headteacher/member of staff should be informed at the start of the interview that an allegation has been made and that, at the conclusion of the interview, suspension may occur. It should also be made clear to the headteacher/member of staff at the outset that the interview is not a formal disciplinary hearing, but is for the purpose of addressing a serious matter, and could lead to consideration under the governing body’s disciplinary procedures.

12.14 The headteacher or chair of governors should give the headteacher/member of staff as much information as it is possible to disclose without interfering with the investigation of the allegation, including the reasons for any proposed suspension. The headteacher/member of staff should be given an opportunity to make representations concerning the suspension, and offered a brief adjournment prior to responding.

12.15 If, at the end of the interview, the headteacher/chair considers that suspension is necessary, the headteacher/member of staff should be advised:

• whether they are suspended from duty or not• if not, whether they are subject to restricted duties, etc.• that written confirmation of the suspension detailing the reasons

will be given, if possible within one school day of the interview• that they will be offered the name of a person not involved in the

investigation with whom they can discuss employment matters and any support needs. This nominated person would not take the place of the member of staff’s union representative, but is an additional support and point of contact. Their role might be to offer advice on the governing body’s policy and procedures or help with accessing information from the school.

12.16 Where a member of staff at a community, community special or voluntary controlled school has been suspended, the headteacher should give written notice of the suspension to the chair of governors and the chief education officer of the LA. In the case of suspension of the headteacher, the chair of governors should inform the LA.

12.17 Where a member of staff at a voluntary aided or foundation school has been suspended the headteacher should give written notice of the suspension to the chair of governors and the chief education officer of the maintaining LA. It would also be good practice to give notice to the relevant diocesan authority where applicable. In the case of the suspension of the headteacher, the chair of governors should inform the LA and any diocesan authority.

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Governing body access to information

13.1 The provision of information about the nature of the allegations does not itself call into question the impartiality of (‘taint’) any governing body members who may be involved in deciding on disciplinary action. However, the governing body as a whole or individual governors must take care not to consider the substance of any allegations or make any judgements or prejudicial comments about the case. If the issue should arise at a governing body meeting, the chair must stop discussion immediately so that members of the staff disciplinary and dismissal committee and staff disciplinary and dismissal appeals committees are not tainted. If members of the staff disciplinary and dismissal committee and the staff disciplinary and dismissal appeals committee do become tainted as a result of these discussions the governing body will have to consider alternative arrangements (see paragraph 13.4).

13.2 Members of the governing body need at all times to treat all information they receive relating to allegations against members of staff with the utmost confidentiality. Governors damage their own reputation for fairness and their ability to deal with an allegation if they discuss information or share it with anyone outside the governing body, unless this is necessary for the fair conduct of the disciplinary proceedings.

Sharing information

13.3 Information can be disclosed to third parties where this is necessary to avoid injury to persons or damage to property, e.g. to assist the statutory authorities in ongoing investigations or to protect children. The governing body must comply with any legal duty to disclose such information and should always check with the specialist officer in the LA or Diocese (where relevant) before releasing any information (refer to paragraph 13.12 for further information).

Section 13: General issues

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Key Principles of Information Sharing – adapted from Safeguarding Children in Education April 2008 – refer to Appendix F of Circular 05/2008

‘The safety and welfare of a child or young person must be the first consideration when making decisions about sharing information about them.

There must be a legal basis for sharing information and a legitimate purpose for doing so.

When dealing with confidential information you will need to be satisfied that you comply with the Data Protection Act 1998. www.ico.gov.uk/for_organisations/data_protection.aspx

You must consider the significance, or the potential significance, of the information you hold. The information you share should be relevant to the purpose for which you are sharing it and you should only share information with those practitioners or agencies that “need to know”.

You should be open and honest with children, young people and their families about the reasons why information needs to be shared and why particular actions need to be taken, unless to do so would adversely affect the purpose for which the information is to be shared.

You should gain consent to share information unless it is not safe or possible to do so, or if it would undermine the prevention or detection of a crime.

Information should be accurate, held securely and kept for no longer than necessary.’

Membership of staff disciplinary and dismissal committee and staff disciplinary and dismissal appeals committee

13.4 If a situation arises where a whole governing body or a substantial number of its members is/are tainted by virtue of having discussed (or otherwise acquired detailed knowledge of) the substance of any allegations of gross misconduct, the chair of

www.ico.gov.uk/for_organisations/data_protection.aspx

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governors will need to discuss arrangements for consideration of the allegations with the LA and or the diocesan authority where appropriate. All parties will need to bear in mind that the statutory responsibility for completing consideration of the staff disciplinary process rests with the governing body. Options available to a governing body in these circumstances are as follows.

• Fill any vacancies.• Remove governors and reappoint governors who are impartial.

The governing body may remove any governor they appoint such as community governors or partnership governors; the LA may remove their governors; and the diocese may remove their foundation governors. It is understandable that this option may cause concern, particularly if good governors have to be removed. However, the outcome should achieve enough impartial governors to complete the disciplinary process.

• Enlarge the size of the governing body. The membership of governing bodies is set out in the Government of Maintained Schools (Wales) Regulations 2005. For some schools that have very small governing bodies it may be possible to increase the size of the governing body and revise the Instrument of Government. Should this be an option the governing body must increase the numbers in every category.

• Circumstances may require the LA to consider issuing a warning notice to the governing body under Section 15 of the Schools Standards and Framework Act 1998 which would allow them to appoint additional governors. In faith schools the diocese would currently have the same right to appoint a balancing number of foundation governors.

In the event that a school and LA consider that it is appropriate to use governors who may be perceived to be tainted it should take all measures possible to ensure that the consideration of the case is fair and balanced and is seen to be so. For example, non-governor members may be used on staff disciplinary and dismissal committees and disciplinary and dismissal appeals committees to assist with a balanced consideration of matters (particularly where tainted governors have to be used) but these governors would not have a vote. These circumstances are outside of the requirements to a have a non-governor with voting rights for child protection allegations. Governing bodies should be aware that if they use governors who are in fact tainted and it can be shown that have not acted fairly, perhaps because there is evidence that they have predetermined the matter, they may be the subject of an unfair dismissal claim.

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Governing body access to independent advice

13.5 Governing bodies are largely made up of lay people and it is essential that their decisions, which are likely to have far-reaching consequences for those involved, are made in an informed and timely manner. The governing body’s agreed procedure should provide for each of the staff disciplinary and dismissal and staff disciplinary and dismissal appeals committees to have access to appropriate and timely professional advice, particularly legal and personnel advice. Where it is necessary for the staff disciplinary and dismissal committee to seek advice during a hearing, any advice should be given in front of all parties and be recorded in full. It is recognised that any such advice could be challenged by any of the parties involved and that this could lead to a delay in proceedings, if an adjournment is requested. Once the staff disciplinary and dismissal committee has received all the advice they need, the committee must debate and make their decision in private without any advisers present.

13.6 In many cases the LA (or diocesan body where appropriate) will be able to provide this and it is expected that governing bodies would approach these organisations in the first instance. However, in some cases, the governing body (or the LA itself) may consider that independent advice should be sought, e.g. where the LA has itself been instrumental in bringing allegations to the attention of the governing body, or the LA is providing support to individuals involved in the case.

13.7 Unless otherwise agreed with the LA (and/or diocesan authority as appropriate), any costs incurred in obtaining independent advice should be met from the school’s delegated budget. The LA’s scheme for financing its schools and/or a school’s service level agreement with the LA should deal with this. Governing bodies should also bear in mind that under section 37(5) of the Education Act 2002, LAs can charge costs they incur in dismissing a member of staff to the school’s delegated budget if they have good reason to do this, e.g. if the LA has not been consulted about the dismissal, or any advice it has provided has not been considered by the governing body staff disciplinary and dismissal committee or staff disciplinary and dismissal appeals committee, or the advice has been considered but rejected out of hand. The advice from the LA must be reasonable, taking into account the type of school and any associated particular requirements.

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13.8 Where LAs provide advice they should not seek to impose this on the governing body, and should make it clear that the governing body is free to seek advice from other sources.

Written records of proceedings, including records of governing body meetings

13.9 The governing body’s disciplinary procedure should require that a written, contemporaneous record is kept of:

• the allegations• all steps taken in each case• all meetings involving the governing body, LA representatives,

diocesan representatives (if applicable), the member of staff or their adviser/companion/union representative

• the investigation, including interview records, documentary evidence and the investigator’s report

• the record of the staff disciplinary and dismissal hearing as well as the staff disciplinary and dismissal committee’s conclusions and the basis for them

• any appeal made by the member of staff• the record of the staff disciplinary and dismissal appeal hearing

(even if it is not a full rehearing of the case) and the staff disciplinary and dismissal appeals committee’s conclusions and the basis for them

• all professional advice, including legal and personnel advice, given at any time during the process.

All records of proceedings will be supplied to the individual employee upon request.

It is essential that this record gives in full the reasons for any decisions made. This is as important as making sure that the decision itself is lawful because such records are the means by which a decision can be shown to be lawful.

13.10 The minutes of the meetings of a governing body and its committees are public documents which must be made available for inspection at the school to anyone who asks, in accordance with regulations 48 and 62 of the 2005 school government regulations33. However, it is inappropriate for any details of disciplinary proceedings

33 www.opsi.gov.uk/legislation/wales/wsi2005/20052914e.htm (Regulations 48 and 62)

32www.opsi.gov.uk/legislation/wales/wsi2006/20060873e.htm


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to be contained in the ordinary minutes of the governing body meetings. Appropriate references should be made in the governing body minutes that a matter has been passed to the staff disciplinary and dismissal committee to consider, or that a matter has been dealt with through staff disciplinary procedures.

13.11 A separate record of confidential matters which are not available for public scrutiny should be made giving the detail of the reference to the staff disciplinary and dismissal committee and any governing body discussion of the matter; and at the end of the process, details of the report given to the governing body. These records were considered to be exempt from public scrutiny. However, Section 19 of the Freedom of Information Act 2000 requires governing bodies to have a publication scheme in place, detailing the information they will make public. The documents and minutes of all governing body and committee meetings fall within the criteria of this scheme and must now be made available to anyone who asks, subject to the relevant exceptions.

13.12 Sensitive material and personal information that is likely to be included in such minutes is potentially exempt from publication because of the Data Protection Act 1998. Where the governing body concludes that the minutes contain exempt information, this must be redacted before the material is made available. Exempt information could include references to names of pupils, members of staff and witnesses, health information, any records of conduct or discipline or anything else which is considered to be personal data. Guidance for schools on the Freedom of Information Act and model publication schemes for schools is contained in the National Assembly for Wales Circular 09/200434.

13.13 The governing body will have to consider any requests for information against the requirement placed on them by these Acts (paragraphs 13.11 and 13.12) and the exemptions that may apply. Each request will have to be judged on its own merits before any decision is taken to withhold or release the information, or to release the information with redactions.

13.14 Further information is available from the Information Commissioners Office at www.ico.gov.uk

34 www.wales.gov.uk/publications/circular/circulars04/NAFWC092004?lang=en

www.ico.gov.uk

32www.opsi.gov.uk/legislation/wales/wsi2006/20060873e.htm

www.wales.gov.uk/publications/circular/circulars04/NAFWC092004%3Flang%3Den

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Annex A: Matters outside the scope of the staff disciplinary procedures

1.1 Regulation 7 of the 2006 Staffing Regulations35 requires that schools establish three quite distinct procedures which must be made known to members of staff.

• Disciplinary – for conduct and discipline of staff. • Grievance – to enable staff to seek redress for any grievance

relating to their work at the school.• Capability – to deal with lack of capability on the part of staff at

the school.• In addition, under section 29 of the Education Act 2002 governing

bodies are also required to have a procedure in place to deal with complaints. They should also have a ‘whistleblowing’ policy, which is a means by which an employee can raise concerns with a third party, or their employer.

1.2 Disciplinary procedures must be separate and are quite distinct from grievance and capability procedures. However, in accordance with the Acas Code of Practice 1 – Disciplinary and grievance procedures, it is permissible on specific occasions to deal with combined issues under combined proceedings by the same committees (refer to paragraph 2.4).

1.3 Those responsible for operating disciplinary procedures (usually the headteacher, chair of governors, acting headteacher or vice chair) must satisfy themselves on receipt of an allegation or complaint that they are dealing with a matter of misconduct. They must also decide, after making enquiries, whether the allegation constitutes lesser misconduct which can be dealt with by the school using the school’s agreed lesser misconduct procedures, or whether it constitutes gross misconduct which will require a staff disciplinary and dismissal hearing.

Grievance procedures2.1 Grievances are concerns, problems or complaints that employees raise with their employers36. Employees should aim to settle most grievances informally with their relevant line manager in the first instance.

2.2 The person who receives the ‘grievance’ (the chair of governors if the grievance is about the headteacher) should decide, after seeking advice from the LA or diocesan authority, whether the issue is one that is properly considered to be a grievance, or whether it is in fact

35 The Staffing of Maintained Schools (Wales) Regulations 2006 No.873 (W.81)36 Code of Practice 1: Disciplinary and grievance procedures (Acas, 2009).

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a staff disciplinary matter, or whether it should be dealt with under another relevant procedure.

2.3 Although staff grievance procedures are outside the scope of this procedure, if action under the staff grievance procedure results in the need for disciplinary action, then the staff disciplinary procedure will then apply.

2.4 Where a member of staff raises a grievance or formal complaint during a disciplinary process, the disciplinary process may be temporarily suspended at the discretion of the staff disciplinary and dismissal committee or the headteacher as appropriate in certain circumstances, in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently. The committee(s) however should be mindful of vexatious or delaying grievances and governing bodies should ensure that delays are minimal.

2.5 There is no law requiring a governing body to have a separate staff grievance committee. Those governors who are identified to be the staff disciplinary and dismissal committee or staff disciplinary and dismissal appeals committee may instead be used to hear a staff grievance. This should be clearly minuted when the governing body decides on its committee structure and membership. Should this occur, it must be made clear to the governor that they are acting in the capacity of dealing with a grievance and not a disciplinary/dismissal matter. If the outcome of a staff grievance matter leads to disciplinary action being taken, those governors who have sat on the staff grievance and staff grievance appeals committee cannot be members of the staff disciplinary and dismissal committee or staff disciplinary and dismissal appeals committee that considers the matter.

Complaints

3.1 A complaint is ’an expression of dissatisfaction in relation to the school, a member of its staff or the governing body, that requires a response from the school’37. Complaints can be from an external party. If a complaint is made by a member of staff that relates to their employment this should be dealt with as a grievance.

3.2 There are other statutory processes for complaints and appeals that are not covered by the complaints procedure and these relate to the curriculum, child protection, special educational needs (SEN), religious

37 Complaints procedures for school governing bodies in Wales Welsh Government Guidance circular no: 011/2012 (2012).

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worship, admissions, exclusions, staff grievance, teacher capability, and staff discipline and dismissal.

3.3 There may be occasions when complaints brought forward under the governing body’s complaints procedure lead to consideration of the actions of a member of staff under the school’s disciplinary procedures. If concern about the behaviour and conduct of the member of staff, if proven, would likely result in disciplinary proceedings being instigated, then the matter should be dealt with under the disciplinary procedure. The complainant and the member of staff and their union representative should be advised if the matter is being dealt with as a staff disciplinary issue using the school’s agreed process.

3.4 If the matter is determined to be a disciplinary issue, it cannot be referred back to be dealt with under the complaints procedure.

3.5 Further information on complaints procedures can be found in Complaints procedures for school governing bodies in Wales Welsh Government Guidance circular no: 011/2012 (2012).

Capability procedures

4.1 Where capability is an issue and a member of staff wishes to improve or is required to improve then capability procedures should be applied. Capability procedures are successful when the member of staff cooperates, makes the necessary improvements and sustains them with help, guidance and support. If this is not achieved, this could lead to further capability procedures or disciplinary proceedings as appropriate. However, where poor performance arises from perceived negligence or lack of care by the member of staff, then the application of disciplinary procedures is appropriate without first going through capability procedures.

Whistleblowing

5.1 In addition, governing bodies should have procedures in place for whistleblowing. All members of staff should be able to raise concerns about conduct or practice within the school which is potentially illegal, corrupt, improper, unsafe or unethical, or which amounts to malpractice. They should be able to do so without fear of victimisation and with confidence that their concerns will be taken seriously and dealt with properly. Information can be found in Procedures for Whistleblowing in Schools and Model Policy Welsh Assembly Government Circular Guidance No: 36/200738.

38 Procedures for Whistleblowing in Schools and Model Policy Welsh Assembly Government Circular Guidance 36/2007 (2007).

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The list below is offered only by way of example to indicate how behaviour may be regarded. This is not an exhaustive list and is provided for illustrative purposes only. Judging the level of misconduct and how it must be handled has to be undertaken on the facts of each case.

Lesser misconduct

Breaches of discipline under this heading will not normally result in dismissal for a first offence, but may result in dismissal if repeated.

Lesser misconduct might include:

• specified conduct which is incompatible with the ethos and precepts of the school as set out in the school’s prospectus, website, school staff terms and conditions of employment, etc.

• poor timekeeping and/or unauthorised absence (e.g. absence from the workplace during school sessions without permission or in line with the school’s policy)

• refusal to carry out a reasonable instruction• causing damage to property/equipment through negligence/not

having due regard to school property• causing unintentional superficial injury to a member of staff/pupil • using inappropriate language• petty theft, e.g. making unauthorised private telephone calls or

sending personal mail at the school’s expense• breach of dignity at work policies• unauthorised use of mobile phones/text messaging/social

networking sites during lesson time.

Annex B1: Examples of lesser misconduct behaviour

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Gross misconduct

Gross misconduct can be defined as an act, or series of actions, that fundamentally repudiates the contract of employment so that the governing body would be justified in no longer tolerating the continued presence at work of the member of staff. These acts may justify summary dismissal without notice or payment in lieu of notice. The list below is offered only by way of example to indicate how behaviour may be regarded. This is not an exhaustive list and is provided for illustrative purposes only. Judging the level of misconduct and how it must be handled has to be undertaken on the facts of each case.

Gross misconduct might include:

• specified conduct which is incompatible with the ethos and precepts of the school as set out in the school’s prospectus, website, school staff terms and conditions of employment, etc.

• fraudulent acts or theft of property belonging to the LA, the school, fellow members of staff or pupils

• deliberate and serious damage to property belonging to the LA, the school, fellow members of staff or pupils

• violent behaviour including physical assault• continuous bullying • harassment or unlawful discrimination on any grounds• physical, sexual or emotional abuse of pupils• sexual misconduct at work• physical violence• gross negligence• causing loss, damage or injury through serious negligence • serious incapability at work brought on by alcohol or other illegal

substances on school premises• serious insubordination• deliberately accessing offensive or obscene material via internet

sites, social networking sites or by messaging• inappropriate texting• theft or fraud in and out of the workplace• dishonesty (e.g. tampering with examination papers, revealing

examination papers prior to examinations or altering examination results)

Annex B2: Examples of gross misconduct behaviour

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• serious violation of the LA or the school’s health and safety rules and standards

• criminal misconduct outside the workplace which reflects adversely upon the school or the member of staff’s suitability to continue to be employed at the school

• knowingly providing false information on any matter relating to the member of staff’s employment

• disclosure of confidential personal information• serious breaches of health and safety• humiliation of staff, victimisation of colleagues, parents/carers

or pupils.

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• The Government of Maintained School (Wales) Regulations 2005 as amended by the School Councils (Wales) Regulations 2005, the Staffing of Maintained Schools (Wales) Regulations 2006 and the Staffing of Maintained Schools (Miscellaneous Amendments) (Wales) Regulations 2007

• The Staffing of Maintained Schools (Wales) Regulations 2006 and the Staffing of Maintained Schools (Miscellaneous Amendments) (Wales) Regulations 2007, the Staffing of Maintained Schools (Wales) (Amendment) Regulations 2009, the Staffing of Maintained Schools (Wales) (Amendment No. 2) Regulations 2009, and the Local Education Authorities and Children’s Services Authorities (Integration of Functions) (Subordinate Legislation) (Wales) Order 2010

• School Governors’ Guide to the Law (2011) • Code of Practice 1: Disciplinary and grievance procedures

(Acas, 2009)• Safe and effective intervention – use of reasonable force and

searching for weapons Welsh Assembly Government Guidance document No: 041/2010 (2010)

• Freedom of Information Act 2000 – Model Publication Scheme for Schools National Assembly for Wales Circular 09/2004 (2004)

• Data Protection Act 1998• Reporting Misconduct and Incompetence in the Education Service

Welsh Assembly Government Circular No: 018/2009 (2009)• Procedures for Whistleblowing in Schools and Model Policy Welsh

Assembly Government Circular No: 36/2007 (2007)• Disciplinary Procedures and Rules 2012 (General Teaching Council

for Wales, 2012)• Code of Professional Conduct and Practice for Registered Teachers

(General Teaching Council for Wales) • Education Act 2002, section 175• Employment Rights Act 1996 • Employment Act 2002• Employment Relations Act 1999

• Employment Act 2008

Annex C: Guidance and other documents relevant to staff disciplinary procedures

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Reference material related to child protection• Safeguarding Children in Education: The role of local authorities

and governing bodies under the Education Act 2002 Welsh Assembly Government Circular No: 005/2008 (2008)

• Safeguarding Children: Working Together Under the Children Act 2004

• All Wales Child Protection Procedures 2008• Joint NEOST/Teacher Union Guidance on Education Staff and Child

Protection: Staff Facing an Allegation of Abuse – Guidelines on Practice and Procedure (2002)

• Definitions and Thresholds for Managing Allegations Against Education Staff (The National Network of Investigation and Referral Support Co-ordinators, 2004)

• Managing the Aftermath of Unfounded and Unsubstantiated Allegations (The National Network of Investigation and Referral Support Co-ordinators, 2004)

• Detailed information on the ISA and the Vetting and Barring Scheme can be found on the ISA website. (At the time of issuing, this information is correct.) The UK Protection of Freedom Act 2012 will establish a new Disclosure and Barring Service (DBS). The functions of the ISA and the CRB are to be transferred to the DBS from December 2012.

Key definitions and concepts

The definitions and concepts below are taken from Safeguarding Children in Education Welsh Assembly Government Circular Guidance No: 05/2008 (2008).

Abuse: emotional

The persistent emotional ill-treatment of a child such as to cause severe and persistent adverse effects on the child’s emotional and behavioural development.

Abuse: physical

Hitting, shaking, throwing, poisoning, burning or scalding, drowning, suffocating, or otherwise causing physical harm to a child. Physical harm may also be caused when a parent or carer fabricates or induces illness in a child whom they are looking after.

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Abuse: sexual

Forcing or enticing a child or young person to take part in sexual activities, whether or not the child is aware of what is happening, including:

• physical contact, including penetrative or non-penetrative acts• non-contact activities, such as involving children in looking at, or

in the production of, pornographic material or watching sexual activities

• encouraging children to behave in sexually inappropriate ways.

Child in need

A child is in need if:

• they are unlikely to achieve or maintain, or have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for them of services by a LA

• their health or development is likely to be significantly impaired, or further impaired, without the provision for them of such services

• they are disabled.

Child protection

Child protection is a part of safeguarding and promoting welfare. This refers to the activity which is undertaken to protect specific children who are suffering or are at risk of suffering significant harm as a result of abuse or neglect.

Children

A child is anyone who has not yet reached their eighteenth birthday. ‘Children’ therefore means ‘children and young people’ throughout. The fact that a child has become 16 years of age, is living independently or is in further education, or is a member of the armed forces, or is in hospital, or in prison or a young offenders institution does not change their status or their entitlement to services or protection under the Children Act 1989.

Development

Physical, intellectual, emotional, social or behavioural development.

Harm

Ill-treatment or the impairment of health or development, including, for example, impairment suffered from seeing or hearing the ill-treatment of another.

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Health

Physical or mental health.

Neglect

The persistent or severe neglect of a child, or the failure to protect a child from exposure to any kind of danger, including cold, starvation or extreme failure to carry out important aspects of care, resulting in the significant impairment of the child’s health or development, including non-organic failure to thrive.

Safeguarding and promoting the welfare of children

This involves:

• protecting children from abuse and neglect• preventing impairment of their health or development• ensuring that they receive safe and effective care

so as to enable them to have optimum life chances.

Significant harm

Section 31(10) of the Children Act 1989 states that ‘where the question of whether harm suffered by a child is significant turns on the child’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child’.

Welfare and well‑being

There is no statutory definition. The Children Act 1989 introduced the welfare checklist that a court shall have regard to in certain circumstances. The 1989 Act states that a ’court shall have regard in particular to:

• the ascertainable wishes and feelings of the child concerned (considered in the light of his or her age and understanding)

• his or her physical, emotional and educational needs• the likely effect on him or her of any change in his circumstances• his or her age, sex, background and any characteristics of his or

hers which the court considers relevant• any harm which he or she has suffered or is at risk of suffering• how capable each of his or her parents/carers, and any other

person in relation to whom the court considers the question to be relevant, is of meeting his needs

• the range of powers available to the court under this Act in the proceedings in question.’

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Annex D: Supply of information

The Safeguarding Vulnerable Groups Act 2006 and the Education (Supply of Information) (Wales) Regulations 2009

All employers (including teacher supply agencies) in Wales have a legal duty to report cases under the Safeguarding Vulnerable Groups Act 2006 and the Education (Supply of Information) (Wales) Regulations 2009.

In cases where employers have removed an individual from a regulated activity because the employer thinks they have engaged in relevant conduct or posed a risk of harm to children, the Safeguarding Vulnerable Groups Act 2006 provides that employers must report the case to the ISA. The UK Protection of Freedom Act 2012 will establish a new DBS. The functions of the ISA and the CRB are to be transferred to the DBS.

For governing bodies this means that where the staff disciplinary and dismissal committee has determined, following a disciplinary hearing, to dismiss a member of staff because of child protection allegations, the governing body must inform the ISA of their decision. The same would apply where the governing body would have dismissed the staff member but the staff member resigned before dismissal could take place.

In other cases the Education (Supply of Information) (Wales) Regulations 2009 provide that employers are required to make a report to the General Teaching Council for Wales in cases where employers cease to use a registered teacher’s services on grounds of:

• misconduct, or would have ceased to use their services had they not resigned

• professional incompetence or conviction of a relevant offence where the conduct does not involve the harm, or risk of harm, to a child (as defined in the Safeguarding Vulnerable Groups Act 2006).

Further guidance on the circumstances where a referral should be made and the information that should be supplied to the relevant authority can be found in Reporting Misconduct and Incompetence in the Education Service Welsh Assembly Government Circular No:18/2009 (2009) at www.wales.gov.uk/topics/educationandskills/publications/circulars/reportingmisconductcircular/?lang=en

www.wales.gov.uk/topics/educationandskills/publications/circulars/reportingmisconductcircular

www.wales.gov.uk/topics/educationandskills/publications/circulars/reportingmisconductcircular

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Information to be supplied by an employer

This should include:

• a statement of reasons for ceasing to use the person’s services• employer’s records relating to the cessation of the use of the

person’s services or any contemplated cessation, including notes and minutes of meetings, interview notes, and evidence supplied to or obtained by the employer

• employer’s records relating to the conduct which eventually led to the cessation of the use of the person’s services or might, but for the person having ceased to provide those services, have led the employer to cease to use the person’s services, including notes and minutes of meetings, interview notes, and evidence supplied to or obtained by the employer

• employer’s letters, warnings or notices issued to a person in relation to the cessation of the use of their services or contemplated cessation, or the conduct which eventually led to the cessation of the use of the person’s services or might, but for the person having ceased to provide those services, have led the employer to cease to use the person’s services, and the person’s replies or representations in relation thereto

• any other statements, representations and evidence submitted by a person to the employer in relation to the cessation of the use of the person’s services or contemplated cessation, or the conduct which eventually led to the cessation of the use of the person’s services or might, but for the person having ceased to provide those services, have led the employer to cease to use their services

• a letter advising a person’s intention to cease to provide services• any other document or information which the employer considers

is relevant to any investigation which may be carried out by an investigating committee or any proceedings which may be taken by a committee against a registered teacher.

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Annex E: Flow chart for lesser misconduct and gross misconduct

Allegation received

Informal action by head or chair as part of normal supervisory/management role,

i.e. such as advice and coaching

Lesser misconduct

Report to head or chair

No action taken

Decision upheld

Oral warning Written warning

Employee appeals

Final written warning

Sanction imposed

Appeal successful

Informal actionadvice/coaching

Head or chair (in respect of the head) arranges for an

investigation to be carried out

Formal actionreferred to staff disciplinary and

dismissal committee

Hearing with head or chair

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Gross misconduct

Referral to governing body, i.e the chair of governors

Suspension considered

Decision upheldDecisionupheld

Referral to ISA or GTCW – for

information ISA is being replaced by the Disclosure and

Barring Service (DBS)

Decision overturnedDecisionoverturned

Sanction via lesser misconduct

No evidence ofcriminal activity

and no child protection issues

Non-child protection issue

Action taken under lesser misconduct, i.e. advice

coaching or sanction imposed

Sanction imposed other than dismissal

Decision taken not to holddisciplinary hearing

Referred to police

Contains evidence of criminal activity and/or child protection issues

No furtheraction

Dismissal

Formal action – decision taken to hold a disciplinary hearing

Referred to statutory authorities, i.e police/social serices

Investigation

Report to chair and head, or chair and another governor if about head

Referral for independent investigation for child protection allegations

AppealAppeal

Discussion with LA lead child protection officer if child protection allegation

Decision overturned

No sanctions imposed

Investigation

Criminal process completed and/or statutory authorities consideration completed

Criminal process completed

Child protection issue

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Please note that a brief outline of timescales is provided in this annex. These timescales are only indicative and it is essential that they are read in conjunction with the relevant sections in the guidance.

There may be a need to be flexible with timescales, e.g. where there is a large amount of paperwork or unavailability of staff. Timescales may be shortened or extended by mutual agreement between all relevant parties. Allegations received out of the school term should be addressed promptly once term recommences and earlier if possible.

1. Lesser misconduct – hearing with headteacher or chair of governors (in respect of the headteacher)

The lesser misconduct process should generally take no more than 25 school days or five school weeks to complete (with a further 25 days for an appeal hearing if needed). Suggested timescales are as follows.

Investigation commenced as soon as possible following receipt of allegation.

All times are calculated from receipt of the investigation report.

Day 1. Investigation report received and decision taken to deal with the matter informally as part of the management process or to have a hearing with the headteacher or chair of governors.

Between days 1–5. A mutually agreed date for the hearing before the headteacher or chair is set and a letter confirming the date is sent to the member of staff.

Between days 5–10. Documentation from the member of staff to be received by the school, chair of governors or the headteacher.

Between days 10–15. Member of staff and headteacher/chair of governors receive all documentation.

Between days 15–20. Parties have time to prepare the case.

Between days 21–23. Hearing takes place.

Between days 24–25. Written notification of outcome, detailing the right of appeal, is sent to the member of staff.

Annex F: Suggested timescales for hearings (in school days)

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2. Lesser misconduct – appeal hearing

All times are calculated from notification of the outcome of the chair/headteacher hearing.

Between days 1–5. Lodge notice of intention to appeal to the clerk within five school days after receipt of notification of outcome.

Between days 5–10. A mutually agreed date for the appeal hearing is set and a letter confirming the date is sent.

Between days 10–15. Documentation from either party to be forwarded to the clerk of governors.

Between days 15–18. Documentation is sent to all parties by the clerk.

Between days 19–22. Parties prepare for the hearing.

Day 23. Date of appeal hearing – oral outcome given (other than in exceptional circumstances).

Between days 24–25. Written notification of outcome sent to the member of staff.

3. Gross misconduct – hearing procedure before the staff disciplinary and dismissal committee

The general timescales have allowed up to 40 school days for a hearing and a further 40 school days for an appeal hearing. These periods may be shortened or lengthened as needed.

All times calculated from receipt of investigation report.

Day 1. Investigation report received and decision taken to go to a hearing. See Section 9, paragraph 9.15.

Between days 5–10. A mutually agreed date for hearing is set and a letter confirming the date is sent by the clerk of governors to the member of staff including the following:

• date and time of the hearing• purpose of the hearing and range of possible outcomes• the right to be accompanied by a companion or a representative

of the member of staff’s trade union

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• the membership of the staff disciplinary and dismissal committee and staff disciplinary and dismissal appeals committees

• details of any other persons to be present and in what capacity• the full details of the allegation, an outline of the evidence to be

presented and the names of any witnesses to be called, etc.

Inform the person presenting the case against the member of staff of:

• date and time of the hearing• the full details of the allegation• an outline of the evidence to be presented• the names of any witnesses to be called, etc.

Between days 10–20. Documentation from both parties to be forwarded to the clerk.

Between days 20–25. Exchange of documentation between the parties undertaken by the clerk.

Between days 26–34. Member of staff and presenting officer to prepare the case.

Day 33. Papers sent to members of the staff disciplinary and dismissal committee.

Day 35. Date of hearing – oral outcome given if decision is agreed by committee (other than in exceptional circumstances).

Between days 36–40. Written notification of outcome, detailing the right of appeal, is sent to the member of staff.

4. Gross misconduct – appeal hearing

All times calculated from notification of the outcome of the gross misconduct hearing.

Day 1–5. Lodge notice of intention to appeal (five school days after receipt of decision by committee).

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Between days 5–10. A mutually agreed date for the appeal hearing is set and a letter confirming the date is sent by the clerk of governors to the member of staff including the following:

• date and time of the appeal hearing• purpose of the hearing and range of possible outcomes• the right to be accompanied by a companion or a representative

of the member of staff’s trade union• the membership of the staff disciplinary and dismissal appeals

committee• details of any other persons to be present and in what capacity• the full details of the allegation, an outline of the evidence to be

presented and the names of any witnesses to be called, etc.

Inform the person presenting the case against the member of staff of:

• date and time of the hearing• the full details of the allegation• an outline of the evidence to be presented• the names of any witnesses to be called, etc.

Between days 10–20. Grounds for appeal and all supporting documentation to be sent to the clerk.

Between days 20–25. Documentation sent to the member of staff/union representative and presenting officer by the clerk.

Between days 26–34. Preparing a case for appeal.

Day 33. Papers sent to the members of the staff disciplinary and dismissal appeals committee.

Day 35. Date of appeal hearing – oral outcome given if decision is agreed by committee (other than in exceptional circumstances).

Between days 37–40. Written notification of outcome is sent to the member of staff.

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er t

he f

ollo

win

g qu

estio

ns.

The

first

six

que

stio

ns s

houl

d be

con

side

red

in r

espe

ct o

f ea

ch

alle

gatio

n an

d th

e re

mai

nder

bef

ore

deci

ding

wha

t pe

nalty

if a

ny t

o im

pose

. Ea

ch a

llega

tion

requ

ires

a se

para

te f

indi

ng,

but

one

deci

sion

can

be

mad

e in

res

pect

of

all o

f th

em.

Resp

onse

s sh

ould

be

reco

rded

an

d ke

pt w

ith t

he o

ther

rec

ords

of

the

disc

iplin

ary

hear

ing.

Qu

esti

on

Yes/

No

Co

mm

ents

1.

Has

the

re b

een

as m

uch

inve

stig

atio

n as

is r

easo

nabl

e in

the

circ

umst

ance

s?

2.

Wer

e th

e in

vest

igat

ion

and

the

pres

enta

tion

of t

he in

vest

igat

ion

repo

rt f

actu

al,

impa

rtia

l, re

liabl

e, c

ompr

ehen

sive

and

unb

iase

d?

3.

Hav

e th

e re

quire

men

ts o

f th

e di

scip

linar

y pr

oced

ure

been

pro

perly

com

plie

d w

ith u

p to

thi

s po

int,

incl

udin

g ad

vanc

e no

tice

to t

he e

mpl

oyee

of

the

mat

ter(

s) t

o be

con

side

red

at t

his

hear

ing?

4.

Hav

e I p

aid

suff

icie

nt r

egar

d to

any

exp

lana

tions

put

for

war

d by

or

on b

ehal

f of

the

mem

ber

of s

taff

?

5.

From

wha

t I h

ave

hear

d at

the

hea

ring,

do

I gen

uine

ly b

elie

ve t

hat

the

mem

ber

of s

taff

has

co

mm

itted

the

mis

cond

uct

as a

llege

d?

6.

Hav

e I r

easo

nabl

e gr

ound

s on

whi

ch t

o su

stai

n th

at b

elie

f on

the

bal

ance

of

prob

abili

ties,

i.e.

is

it m

ore

likel

y th

an le

ss li

kely

tha

t th

e m

embe

r of

sta

ff d

id w

hat

is a

llege

d, a

ckno

wle

dgin

g th

at t

he li

kelih

ood

dim

inis

hes

as t

he s

ever

ity o

f th

e al

lega

tion

incr

ease

s?

7.

Is t

he m

isco

nduc

t su

ffic

ient

ly s

erio

us t

o ju

stify

the

dis

cipl

inar

y de

cisi

on I

am c

onte

mpl

atin

g?

8.

If th

e ci

rcum

stan

ces

(incl

udin

g an

y m

itiga

ting

fact

ors)

are

indi

stin

guis

habl

e fr

om o

ne o

r m

ore

earli

er o

r co

ncur

rent

dis

cipl

inar

y pr

ocee

ding

s ag

ains

t m

embe

rs o

f st

aff

in a

sim

ilar

posi

tion

to

this

mem

ber

of s

taff

in t

he s

choo

l, is

the

dec

isio

n I a

m c

onte

mpl

atin

g re

ason

ably

con

sist

ent

with

dec

isio

ns in

tho

se in

stan

ces,

or

am I

just

ified

in d

istin

guis

hing

one

fro

m t

he o

ther

?

9.

Is t

he d

ecis

ion

I am

con

tem

plat

ing

free

of

bias

aga

inst

the

mem

ber

of s

taff

and

not

rel

ated

to

the

mem

ber

of s

taff

’s se

x, m

arita

l sta

tus,

rac

ial o

rigin

, di

sabi

lity,

sex

ualit

y, r

elig

ion,

or

trad

e un

ion

activ

ities

(m

embe

rshi

p or

non

-mem

bers

hip)

?

10.

Hav

e I p

rovi

ded

the

mem

ber

of s

taff

and

/or

thei

r re

pres

enta

tive

with

an

oppo

rtun

ity a

t th

is

hear

ing

to p

ut f

orw

ard

any

poin

ts f

or m

e to

con

side

r in

miti

gatio

n be

fore

dec

idin

g th

e di

scip

linar

y sa

nctio

n, a

nd h

ave

I had

reg

ard

to t

hese

and

to

any

resp

onse

to

them

by

the

seni

or m

anag

emen

t’s r

epre

sent

ativ

e?

11.

Is t

he d

ecis

ion

with

in t

he b

and

of r

easo

nabl

e re

spon

ses

of a

rea

sona

ble

empl

oyer

in t

he

circ

umst

ance

s?

Annex H: Independent Investigation Service

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An independent investigator must be appointed in all cases where allegations involving issues of child protection are made that may lead to disciplinary proceedings under the Staffing of Maintained Schools (Wales) Regulations 2006.

To help governing bodies meet these requirements, the Welsh Government has established an Independent Investigation Service that governing bodies can use free of charge.

Contact details:

Leah Fox Operational Manager Servoca PLC 41 Whitcomb Street London WC2H 7DT

Tel: 0203 031 4769 Fax: 0845 073 7801 Mob: 07823 530262 e-mail: [email protected] Web: www.servoca.com

If you wish to request an investigator you can also e-mail Servoca at [email protected]

mailto:[email protected]

www.servoca.com

mailto:[email protected]

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Annex I: Model staff disciplinary procedure for maintained schools

Name of school: ...............................................................................

Introduction

This model procedure presupposes that a delegation is in place allowing the headteacher to deal with accusations constituting lesser misconduct. Where this is not the case, suitable adjustments will need to be made.

1. This staff disciplinary procedure applies to school staff (with the exception of some school-based staff employed by the LA), supply staff provided by agencies and any self-employed supply staff. Members of staff have been made aware of this procedure and copies will be given to any member of staff who is the subject of any allegation.

2. All timescales included in this staff disciplinary procedure have been agreed by the governing body and the school’s local staff unions. Depending on the circumstances of the case, there may need to be flexibility with these timescales, e.g. where there is a large amount of paperwork or unavailability of staff.

3. Where required throughout this procedure the chair of governors will take appropriate action unless they are compromised, in which case the vice chair of governors will take over the role and actions normally carried out by the chair. If the vice chair is also compromised the governing body will have to select another governor who is not compromised and minute this decision.

Purpose and scope

4. The governing body is responsible for the conduct and discipline of school staff and is required to have a procedure in place for dealing with staff disciplinary matters.

5. Disciplinary procedures are necessary for promoting orderly employment relations, achieving fairness and consistency in the treatment of individuals and minimising disagreement about disciplinary matters.

6. This disciplinary procedure is intended to help and encourage all employees to achieve and maintain acceptable standards of conduct and to make clear to all concerned the procedure to be followed by this school and governing body to address concerns

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about an individual’s behaviour or conduct and any subsequent disciplinary action that may be taken.

7. The aim of the procedure is to ensure consistent and fair treatment for all members of staff within the school.

Matters outside the scope of the procedure

8. The following matters are outside the scope of this disciplinary procedure:

• where employment is terminated: – by reason of redundancy – by an employee reaching the end of a temporary or

fixed-term contract • where any deficiencies in performance on the part of the staff

member arise from a lack of aptitude or skill (in such cases the capability procedure will be used)

• staff grievances and grievances lodged as a result of disciplinary action. If, however, action under the staff grievance procedure results in the need for disciplinary action then this disciplinary and dismissal procedure will apply

• termination during or at the end of a probationary period, whether or not extended beyond its originally specified duration

• matters which ought to be dealt with through the governing body’s general complaints procedure and which do not raise staff disciplinary issues for individual members of school staff

• for Foundation and voluntary aided schools only – the function of the staff disciplinary and dismissal committee of a foundation school, foundation special school or voluntary-aided school to decide that a person employed at the school should not have their contract of employment renewed.

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Principles

9. This procedure is a way of helping and encouraging improvement in members of staff whose conduct is unsatisfactory and is not to be viewed as simply a means of imposing sanctions or punishment.

10. In all cases, the school and governing body will ensure that disciplinary cases are dealt with in an unbiased, open and fair way.

11. The principles in summary are as follows.

• Where appropriate, every effort will be made to address concerns about behaviour or conduct without recourse to formal procedures.

• No disciplinary action will be taken against a member of staff until the case has been fully investigated by a person who has no connection with the case in question.

• An investigator will be impartial, suitably qualified and experienced. Reasonable objections to an investigator relating to their inability to act impartially, or their competence for the role, will mean that the investigator will be changed.

• Where it is decided to deal with a disciplinary matter through lesser misconduct procedures, the member of staff will be informed of the allegation against them and will be given the opportunity to defend the allegation at the disciplinary hearing before the headteacher, or the chair of governors for allegations against the headteacher.

• A member of staff will not be dismissed for a first breach of discipline in cases of lesser misconduct. However, should this lesser misconduct be repeated it may result in the member of staff being disciplined for gross misconduct as they are not moderating or amending their behaviour. This should be made clear to the member of staff when discussing their behaviour and the improvements/changes expected.

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• Where it is decided to proceed to the formal stage, i.e. the allegations amount to gross misconduct, the member of staff will be informed of the allegation, date, time and place of any hearing before the governing body staff disciplinary and dismissal committee (subject to mutual agreement), the purpose of the hearing and the stage reached in the disciplinary procedure.

• The member of staff will be provided with the membership of the staff disciplinary and dismissal committee prior to a hearing and advised of their right of objection to any committee member on the basis of evidence that calls into question their ability to act impartially in the circumstances of the case.

• The member of staff will be provided, prior to the hearing, with the name of the presenting officer, the names of persons who will be present at the hearing and in what capacity, full details of the allegations, an outline of the evidence to be presented with supporting evidence, the names of any witness to be called and copies of written statements.

• The member of staff will have the right to be accompanied by a companion or a representative of their trade union during the investigation, the disciplinary hearing and the appeal hearing.

• Dismissal for gross misconduct will take place immediately following the decision of the staff disciplinary and dismissal committee or following the outcome of any appeal by the member of staff. Dismissal under these circumstances will be without notice or payment in lieu of notice.

• A member of staff will have the right to appeal against any disciplinary sanction imposed by the headteacher or chair of governors (in respect of lesser misconduct matters), or the staff disciplinary and dismissal committee (in respect of gross misconduct matters).

• The process will be supportive towards the needs of the member of staff.

• Investigations and hearings will be conducted (all or part) in English or Welsh, or with access to interpretation, at the request of the member of staff.

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Informal discussion with the headteacher – outside of disciplinary process

12. There will be occasions when it is appropriate for a member of staff’s actions to be discussed with them as part of normal supervisory arrangements and without recourse to the formal procedures. In these circumstances the member of staff will be given guidance and support from their line manager. This could take the form of advice, counselling, training instruction, coaching or other managerial strategies as is appropriate. Such activity may be delegated to a member of the senior management team. In respect of the headteacher however, this would be carried out by the chair of governors with advice and support from the LA HR advisor.

13. The aim of this action is to ensure that problems are discussed so as to encourage and help the member of staff to improve and understand:

• what they need to do in relation to their conduct• how future conduct will be monitored and reviewed• the period of time over which conduct will be monitored• that formal action might be taken if the conduct in

question recurs.

14. Where discussions and support structures which have been put in place to help the member of staff do not lead to the necessary improvement or the relevant changes in conduct, within the agreed timescale, the member of staff will normally be advised in writing of further action to be taken, which may be formal.

Formal procedure for lesser misconduct

15. Responsibility for disciplinary matters where the allegation could constitute lesser misconduct is usually delegated by the governing body to the headteacher.

16. If an allegation which could constitute lesser misconduct is made against the headteacher, the chair of governors will be responsible for disciplinary action.

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The investigation

17. As soon as the alleged breach of discipline has been brought to the attention of the headteacher or the chair of governors (in the case of the headteacher) a full investigation must be carried out. Where possible the headteacher or chair of governors will arrange for any investigation to be carried out externally, e.g. by the LA, diocesan authority (where appropriate) or a person who is unbiased.

18. The member of staff who is the subject of the alleged breach of discipline, and all witnesses, will be interviewed and requested to provide a signed statement. Notes will be taken at all investigation meetings and a copy given to the party involved. No undertaking of confidentiality will be given to witnesses; however, the overall confidentiality of the disciplinary process will be respected.

19. The member of staff will be given the opportunity to respond to the allegation and will have the right to be to be accompanied by a companion or a representative of their trade union at an investigation interview meeting.

20. Once the investigation has been concluded, the investigating officer will present the findings to the headteacher or the chair of governors (in the case of a headteacher) in a written report. This will be done as soon as practicable after the conclusion of the investigation. The investigation report will be based on matters of fact and not opinions; references to or expressions of views on the personalities of individuals will not form a part of the report.

21. The headteacher or chair of governors (in the case of a headteacher) may conclude that:

• no further action will be taken• matters can be dealt with by informal discussion (refer to

paragraphs 12–14 of this procedure)• there appears to be sufficient evidence for a hearing before

the headteacher or chair of governors (if the headteacher is to be disciplined) and the possible outcome may be sanctions short of dismissal

• there appears to be sufficient evidence that the allegation constitutes gross misconduct to trigger a formal disciplinary hearing before the staff disciplinary and dismissal committee.

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22. Where dismissal could result because a member of staff is currently on a final written warning, the case must be referred to the staff disciplinary and dismissal committee.

The hearing before the headteacher or chair of governors

23. Conduct that is considered to fall within the scope of lesser misconduct has been delegated to the headteacher to deal with. The chair of governors will deal with lesser misconduct allegations against the headteacher. A hearing will take place with the headteacher or the chair of governors (in respect of the headteacher) supported by advice from the LA or diocesan authority (where appropriate). Should the chair of governors be compromised this role should be delegated to the vice chair (providing the vice chair is not compromised).

24. The member of staff will be sent a copy of these procedures and will be informed in writing of the following information:

• the nature of the alleged misconduct• the stage reached in the procedure• the date, time and place for the hearing• the possible outcome of the hearing• their right to:

– produce written statements which will be circulated to all parties in advance of the hearing

– ask questions relating to any written statements so produced

– state their case in person and/or through a representative – produce witnesses – be accompanied by a trade union representative or

companion of their choice.

25. There are five possible outcomes following on from such a hearing:• informal action• oral warning• first written warning• final written warning• referral to a disciplinary hearing before the governing body’s

staff disciplinary and dismissal committee.

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26. In many cases lesser misconduct can be dealt with in the first instance by informal action. However, there may be occasions when it will be appropriate to give a member of staff an oral warning or a written warning. The sanctions used will depend on the circumstances of the member of staff’s behaviour.

27. Further advice on each of these sanctions is set out below. The sanctions a member of staff could receive will be in line with the nature and severity of the allegation. However, there may be occasions where a member of staff has had repeated lesser misconduct allegations against them and has not altered or improved their behaviour. This may result in a more severe sanction being given, e.g. a final written warning. Alternatively, the lesser misconduct behaviour may be serious enough to warrant an immediate final written warning instead of any other sanction.

Informal action

28. As a result of the hearing, the headteacher or the chair of governors (in respect of the headteacher), with support from the LA HR advisor, may deal with matters by giving advice, counselling, training instruction, coaching or other managerial strategies as is appropriate. Such activity may be delegated to a member of the senior management team. In respect of the headteacher however this will be carried out by the chair of governors with advice and support from the LA HR advisor.

29. The aim of this action is to ensure that problems are discussed so as to encourage and help the member of staff to improve. The member of staff needs to understand:

• what they need to do in relation to their conduct• how future conduct will be monitored and reviewed• the period of time over which conduct will be monitored• that formal action might be taken if the conduct in question

recurs.

30. Where discussions and support structures which have been put in place to help the member of staff do not lead to improvement or the relevant changes in conduct in the agreed timescale, the member of staff will normally be advised in writing of further action to be taken.

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Warnings

31. Where the member of staff’s conduct is satisfactory for the specified period of a warning such warnings will be expunged from the staff member’s file after a specified period and cannot be referred to again once spent.

Suitable periods would be:

• oral warning – three months• first written warning – six months• final written warning – 12 months.

Oral warning

32. If at the conclusion of the hearing it is decided to proceed with disciplinary action by way of an oral warning, the headteacher or the chair of governors (in respect of the headteacher) will issue the oral warning to the member of staff in the presence of their trade union representative or companion.

33. An oral warning will be confirmed in writing with a copy to any person who accompanies the member of staff in accordance with these procedures and will state:

• the nature of the misconduct• the stage reached in the procedure• what is expected for the future• the right to appeal, the time limit within which the appeal

should be made, and how the appeal should be made.

34. The member of staff will be required to indicate receipt of the written confirmation of the oral warning. A record of the warning will be placed on the member of staff’s file. Where the member of staff’s conduct is satisfactory for the specified period (usually three months) following an oral warning, such warnings shall be expunged from their record and therefore cannot be referred to again once spent.

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First written warning

35. If at the conclusion of the hearing, it is decided to proceed with disciplinary action by way of a first written warning, the headteacher or the chair of governors (in respect of the headteacher), will issue the first written warning to the member of staff in the presence of their trade union representative or companion.

36. With the agreement of the member of staff a written warning will be copied to any person who accompanies the member of staff in accordance with these procedures and will state:

• the nature of the misconduct• the stage reached in the procedure• what is expected for the future• the right to appeal, the time limit within which the appeal


37. The member of staff will be required to indicate receipt of the written warning. A copy of the warning will be placed on the member of staff’s file. Where the member of staff’s conduct is satisfactory for the specified period (usually six months) following a written warning, such warning shall be expunged from their record and therefore cannot be referred to again once spent.


38. A final written warning may be issued where lesser misconduct recurs despite attempts by senior managers to support the member of staff and improve their behaviour or conduct. A final written warning may also be issued where a single instance of proven misconduct is considered to be of a serious nature.

39. Final warnings may be given following a hearing before the headteacher or the chair of governors (in respect of the headteacher) who will issue a final written warning to the member of staff in the presence of their trade union official or companion.

40. With the agreement of the member of staff a final warning will be copied to any person who accompanies the member of staff in accordance with these procedures, and will state:

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• the nature of the misconduct• the stage reached in the procedure• what is expected for the future• that the next stage will be dismissal• the right to appeal, the time limit within which the appeal


41. The member of staff will be required to indicate receipt of the written confirmation of final warning. A record of the warning will be placed on the member of staff’s file. Where a member of staff’s conduct is satisfactory for the specified period (usually 12 months) following a final warning, such warning shall be expunged from their record and therefore cannot be referred to again once spent. At the end of the period of the final written warning, if the member of staff’s behaviour has not improved, the matter can be referred to the staff disciplinary and dismissal committee for a formal hearing which could result in dismissal. The member of staff must be informed of this at the time the final written warning is issued.

Appeals against formal warnings

42. There is a right of appeal against any disciplinary action (refer to paragraphs 79–85 of this procedure for information on appeals).

Referral for consideration under procedures for gross misconduct

43. There may be rare occasions where, at the end of an investigation into lesser misconduct matters, the evidence in the investigation report indicates that the behaviour constitutes gross misconduct. If the headteacher (or chair of governors in respect of the headteacher) with support from the LA or diocesan officer or another agreed appropriate person, concludes that this is the case, a referral for formal disciplinary action for gross misconduct may be justified. In these circumstances the member of staff will be informed immediately of the decision made and that the matter is being referred to the staff disciplinary and dismissal committee for their consideration. The most appropriate way for a member of staff or headteacher and their respective trade union representatives to be informed of this decision will be through a meeting with the headteacher or chair of governors (in respect of the headteacher). As this is likely to be a rare occurrence this meeting does not form part of the lesser misconduct process.

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Gross misconduct (where the allegation does not relate to child protection issues)

44. The term gross misconduct is used to mean an act, or omission, or a series of actions or omissions by a member of staff, that fundamentally repudiates the contract of employment. All gross misconduct allegations will be subject to a formal disciplinary hearing before the governing body’s staff disciplinary and dismissal committee. The staff disciplinary and dismissal committee and staff disciplinary and dismissal appeals committee shall each have a minimum of three governors. The staff disciplinary and dismissal appeals committee must have at least the same number of governors as the staff disciplinary and dismissal committee. No governor will be a member of both committees and both committees will also have separate advisers.

45. Where alleged gross misconduct is to be considered responsibility for the arrangements to set up a disciplinary investigation rests with the chair of governors through the clerk to the governing body.

46. Gross misconduct allegations are usually sent to the headteacher or chair of governors (if the allegation is about the headteacher). On receipt of an allegation the headteacher or chair of the governors will make an initial assessment of the situation (but not investigate) to determine the nature and circumstances of the allegation, i.e. witnesses, when it occurred, etc. If the conclusion is that the allegation may be true the member of staff and their trade union representative will be informed of the allegation immediately and that the formal disciplinary process is being engaged.

47. The headteacher or chair of governors will arrange for the allegation to be thoroughly and fairly investigated. At this point the member of staff may be suspended by the headteacher or chair of governors, on full pay and in line with the governing body’s agreed procedure. Both the headteacher and chair of governors can suspend staff but only the governing body can end a suspension. The governing body has delegated this function to the chair of governors/the chair of the staff disciplinary and dismissal committee. The decision has been minuted. Suspensions will be reviewed by the chair of governors at intervals set out in this disciplinary procedure and the outcome will be reported to the member of staff and the governing body.

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48. However, if after making the initial assessment of the allegation the conclusion of the headteacher or chair of governors (in respect of an allegation against the headteacher) is that beyond any doubt it is impossible for the allegation to be true, the headteacher or chair of governors may take no further action. The member of staff and their union representative will be informed immediately of this decision.

The investigation

49. As a possible outcome for gross misconduct hearings is dismissal, it is important that investigations into gross misconduct allegations are unbiased and thorough. Consequently, and wherever possible, all investigations will be carried out externally by an appropriate person who has no connection or involvement with the case and has the relevant skills. The governing body may engage, for example, LA or diocesan officers, ex-headteachers or ex-LA officers, who are impartial and have no connections with the case. Only in exceptional circumstances would the chair of governors, members of staff or governors be asked to investigate gross misconduct cases. The chair of governors is responsible for controlling and managing all aspects of the disciplinary process including the engagement of an appropriate investigator. The member of staff has the right to object to an investigator if they have reasonable doubts as to their ability to act impartially.

50. Prior to the investigation, the member of staff will be informed in writing of their rights under the school’s disciplinary procedure, including the right to be accompanied by a companion or a representative of their trade union, at all meetings held in connection with the disciplinary matter.

51. Notes will be taken of the meeting and a copy given to the member of staff and their trade union representative following the meeting. No undertaking of confidentiality can be given to witnesses, however the overall confidentiality of the disciplinary process will be respected.

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The investigation report

52. The report, once completed, will be given to the headteacher and the chair of governors (or chair of governors and another governor in respect of investigations into the conduct of the headteacher) who will consider the findings and decide whether, based on the findings of the report:

• there is no evidence to support the allegations and the matter is closed

• the conduct does not amount to gross misconduct but to lesser misconduct which can be dealt with by the appropriate person

• based on evidence, the conduct does amount to gross misconduct and is required to be referred to a staff disciplinary and dismissal hearing.

53. This discussion and decision will be minuted by the clerk. The member of staff will be advised of the outcome of the investigation as soon as possible in writing by the clerk to the staff disciplinary and dismissal committee.

54. A copy of the investigation report, including all interview notes, will automatically be provided to the member of staff against whom the allegation has been made, within the timescales set out in this disciplinary procedure, if the case is to proceed as outlined above.

Allegations that involve issues of child protection – receipt of an allegation

55. Allegations involving issues of child protection will be brought immediately to the attention of the headteacher or the chair of governors (if the allegation is in respect of the headteacher) and the designated child protection officer in the school and referred to the statutory authorities, e.g. the police and social services.

56. The headteacher or chair of the governors (in respect of the headteacher) will make an initial assessment (but not investigate) to determine the nature and circumstances of the allegation, i.e. witnesses, when it occurred, etc. If the conclusion is that beyond any doubt it is impossible for the allegation to be true the matter will be discussed by the chair of governors, headteacher and the lead child protection officer in the LA, to determine whether a referral to social services and/or the police is required.

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If the allegation is about the headteacher the chair of governors will have the same discussion without the headteacher being present. If the conclusion of all parties is that it is impossible for the allegation to be true the headteacher or chair of governors may not take any further action against the member of staff and no referral to the statutory authorities is required. If there is any doubt and agreement between these parties cannot be reached, the matter will be referred to the statutory authorities.

57. If however, the initial assessment by the headteacher or chair of governors (if the allegation is about the headteacher), in discussion with the LA lead child protection officer, indicates that an allegation might be true, there will be an immediate referral to the statutory authorities (social services and/or the police), in accordance with local child protection procedures.

58. The member of staff and their union representative will normally be informed of the decision, as agreed by the statutory authorities, that a referral is being made. However, there may be some circumstances where this will not be appropriate. At this point the headteacher or chair of governors (if the allegation is about the headteacher) may suspend the member of staff, on full pay, in line with the governing body’s agreed procedures. Both the headteacher and chair of governors can suspend a member of staff but only the governing body can end a suspension. The governing body has delegated this function to the chair of governors/the chair of the staff disciplinary and dismissal committee. The decision has to been minuted. Suspensions will be reviewed at intervals set out in the disciplinary policy and the outcome reported to the member of staff and the governing body.

59. After the statutory authorities (e.g. the police and social services) have completed their consideration of the allegation, it will be referred back to the governing body to complete the staff disciplinary process. This will happen even if the statutory authorities take the decision not to pursue a criminal investigation.

60. The headteacher and chair of governors or the chair of governors and another governor (if the headteacher is the subject of the allegation), with advice from the school’s designated child protection officer and LA lead child protection officer as appropriate, will discuss:

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• whether the allegation is of a child protection nature and the behaviour constitutes gross misconduct which requires it to be independently investigated prior to any disciplinary hearing

• whether there is evidence of misconduct which should be treated as lesser misconduct

• whether no further action is required.

61. If there is any doubt at all, or agreement cannot be reached as to whether the matter is a child protection issue, the allegation will be independently investigated.

Referral for an independent investigation

62. The requirement in education law is that the governing body must refer child protection allegations for independent investigation. In order to make the process easier this task has been delegated to the chair of governors and the governing body’s decision to this effect has been minuted. This must be done prior to the hearing of any disciplinary proceedings. The independent investigator’s contact in relation to the running of the investigation will be with the governing body (e.g. the chair of governors) and not the LA or headteacher. The purpose of an independent investigation is to enable the governing body to comply with the law and to provide members of the staff disciplinary and dismissal committee with a thorough and unbiased investigation report, produced by persons with appropriate skills and training, to enable them to reach fair and balanced decisions.

63. The independent investigator will be appointed as soon as the governing body makes a referral; however, the independent investigator will not commence the investigation until after the statutory authorities have completed their investigation. Once the statutory authorities have completed their investigation the independent investigator will then be able to conduct their investigation.

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The independent investigation

64. The independent investigator will set the parameters of the investigation and interview all witnesses in order to ensure a completely impartial and unbiased investigation is carried out. The report will not contain any conclusions and recommendations as these are matters for the committee to determine.

The independent investigation report

65. The report, once completed, will be given to the headteacher and chair of governors, or chair of governors and another governor in respect of investigations into the conduct of the headteacher. They will consider these findings and decide whether, based on the findings of the report:

• there is evidence to support a decision that the child protection allegations are well-founded, that they constitute gross misconduct behaviour and that they will require a disciplinary hearing before the staff disciplinary and dismissal committee

• there is evidence to support a decision that the allegation constitutes lesser misconduct behaviour which can be dealt with by the headteacher or chair of governors (if the allegation is against the headteacher)

• there is no evidence to support the child protection allegation and no further action needs to be taken against the member of staff.

66. If there is any doubt at all, or agreement cannot be reached by the headteacher or the chair of governors, or the chair of governors and another governor in respect of the headteacher, the matter will be referred for a full hearing before the staff disciplinary and dismissal committee.

67. The member of staff and trade union representative will be informed of the decision as soon as reasonably practicable.

68. The chair of governors will ensure that all relevant papers, including the full investigation report, are sent to the member of staff and/or their union representative, the person presenting the case against the member of staff, and members of the staff disciplinary and dismissal committee within the timescales set out in this procedure.

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69. No evidence will be removed by any party from the investigation report before it is sent to the governing body staff disciplinary and dismissal committee.

Appointment of independent non‑governor member on staff disciplinary and dismissal committees and staff disciplinary and dismissal appeals committees dealing with child protection allegations

70. As required in law the staff disciplinary and dismissal committee and the staff disciplinary and dismissal appeals committee will have at least two governors plus an independent non-governor with voting rights. The appeal committee will have the same number of governors as the first committee. The governors, including the independent non-governor on the appeal committee will be different from those on the first committee.

The disciplinary hearing in respect of all gross misconduct cases

71. A disciplinary hearing will be held as soon as it can be arranged by the clerk to the staff disciplinary and dismissal committee even if the member of staff has subsequently resigned or is on sick leave.

72. The member of staff will be informed in writing of:

• the date, time and place for the disciplinary hearing, seeking agreement to dates from members of the committee, the member of staff, any witnesses appearing in person and the LA and diocesan authority (if appropriate)

• the purpose of the hearing and the range of possible outcomes

• the right of the member of staff to be accompaied by a companion or representative of the member of staff’s trade union

• the membership of the staff disciplinary and dismissal committee and staff disciplinary and dismissal appeals committee

• the name of the person presenting the case against the member of staff

• the full details of the allegation, the evidence to be presented and the names of any witnesses to be called, etc.

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• who is to be the adviser to the staff disciplinary and dismissal committee and the staff disciplinary and dismissal appeals committee

• the date by which all relevant documentation should be received by the clerk prior to the hearing.

73. The clerk will arrange for the documentation from both parties to be distributed to the member of staff and their representative prior to the hearing, including up-to-date procedures, in accordance with the timescales set out in this procedure.

74. The staff member will be afforded the right to object to any member of the committee or the investigator on the basis of evidence that calls into question their ability to act impartially in the circumstances of the case.

At the hearing

75. The hearing will be conducted in a fair manner with all parties having the opportunity to present evidence and call and question witnesses. There will also be an opportunity for the presenting officer and the member of staff and/or their trade union representative to summarise their case. The clerk to the governing body will be present to record the hearing in detail.

76. Once this part of the hearing is completed there will be an opportunity for the staff disciplinary and dismissal committee to receive advice. Once this is received members of the committee will be left alone with the clerk to discuss the evidence and make their decision. Where possible this will be given verbally at the end of the hearing. If for some reason this is not possible the committee’s decision will be given in writing to the member of staff as soon as possible after the hearing. At this point the member of staff will also be informed of their right to appeal and the timescale within which this must be made.

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Decision reached after the hearing has taken place

77. Having considered all the evidence and taken into account advice provided, the staff disciplinary and dismissal committee may conclude that:

• the allegation is unproven and there is no action to be taken• the alleged behaviour constitutes lesser misconduct and

a formal oral written warning or final written warning should be issued

• the allegation of gross misconduct is proven and, depending on the severity of the misconduct, an appropriate sanction shall be imposed.

Possible sanctions may be:

• relegation to a lower-graded position (if practical and appropriate) and loss of salary

• specified training and development• issue of a formal warning (where the alleged behaviour

constitutes lesser misconduct)• dismissal of the member of staff without notice.

78. Matters that are considered lesser misconduct will be dealt with by means of formal action set out in paragraphs 28–41.

Disciplinary hearing – appeal

79. A member of staff is entitled to appeal against a decision of the staff disciplinary and dismissal committee. The notice of the intention to appeal needs to be lodged with the clerk to the staff disciplinary and dismissal appeals committee within the specified time limit set out in this procedure. The appeal notice will need to include the grounds for the appeal.

80. The appeal will be heard by the disciplinary and dismissal appeals committee within a specified time set out in this procedure. Appeal hearings will focus on the issues set out in the appeal notification, therefore the appeal process may not always take the form of a complete hearing. However, under certain circumstances, e.g. where new evidence comes to light or the first hearing process was flawed or biased, it may be appropriate to rehear part, if not all, of the case. The member of staff will be given notice of the date and time of the appeal hearing.

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Agreeable times and dates will be arranged for all parties concerned where possible.

81. The staff disciplinary and dismissal appeals committee may, after considering all the facts presented to it, including any new evidence, come to one of three conclusions:

• uphold the decision of the staff disciplinary and dismissal committee

• impose a lesser penalty• conclude that no disciplinary action should be taken against

the member of staff.

82. The staff disciplinary and dismissal appeals committee cannot impose a more severe penalty than that imposed by the headteacher or chair of governors in respect of the headteacher (in lesser misconduct cases) or the staff disciplinary and dismissal committee (in gross misconduct cases).

83. The decision of the staff disciplinary and dismissal appeals committee will be final and the staff member will be informed in writing.

84. The member of staff will be given a copy of the minutes of the appeal hearing and a copy of the disciplinary and dismissal appeals committee’s conclusions.

85. If, as the result of an appeal, disciplinary action is withdrawn, all details thereof will be expunged from the member of staff’s personal file and they will be informed accordingly. The member of staff will be given a copy of the minutes of the appeal hearing and a copy of the disciplinary and dismissal appeals committee’s conclusions.

Suspension

86. Suspension pending disciplinary proceedings will normally only be considered where allegations relate to gross misconduct behaviour and where:

• it appears to be necessary to exclude the member of staff from the school, for the protection of pupils, other staff or property or the orderly conduct of the school

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• the continued presence at work of the member of staff would be an obstacle to proper investigation of the allegations made against that member of staff.

87. Suspension is a serious step and will not be used in a punitive way. Suspension will be on full pay and without loss of emoluments. The continued effect of the suspension will be kept under review and the outcome of the review reported to the member of staff and the governing body.

88. The decision to suspend can be taken by the headteacher or the chair of governors but only the governing body can end a suspension. However the governing body has delegated the task of ending a suspension to the chair of governors/the chair of the staff disciplinary and dismissal committee.

89. The decision to suspend will be discussed with the headteacher, chair of governors (or vice chair if the chair is not available) in consultation with the chief education officer of the maintaining LA and, where applicable, the diocesan authority, prior to implementing any suspension or redeployment. Written notice will be given to all relevant parties following a decision to suspend.

90. If the staff member is absent due to sickness, the staff disciplinary and dismissal committee will usually postpone the hearing. However, where the staff member may be absent for an indeterminate period, the staff disciplinary and dismissal committee may decide to hold the hearing provided that it has informed the member of staff and their representative and has offered the member of staff the opportunity to send a representative or submit written evidence to present their case. The representative will have the same opportunity as the staff member to present evidence, call witnesses and sum up the staff member’s case.

Summary

91. In adopting this procedure the governing body has taken due regard of advice and guidance from the LA and the Disciplinary and dismissal procedures for school staff Welsh Government circular no: 002/2013 (2013). It has also consulted the local trade union representatives.

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92. The governing body will also consult further before any amendments are made to this disciplinary procedure.

Further detailed guidance on the stages of this policy can be found in the revised Disciplinary and dismissal procedures for school staff Welsh Government circular no: 002/2013

Signed by chair of governors on behalf of the governing body:

……………………..................................................................………..

Date approved: …………....………

Date of review …..........………….... (by full governing body)

Date sent to LA ……………………

[There is no statutory requirement to do this, but it may be good practice.]

Annex J: Model letters that can be used during the disciplinary process

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Letter (i): Sample letter inviting a member of staff to attend an investigation meeting in respect of lesser or gross misconduct allegations

Date ..................

Dear

Re: Investigation meeting on ………….

I write to request your attendance at an investigation meeting with …………………. who is investigating the allegations made against you, as below:

a)……………..

b)……………..

c)……………...

The meeting will be held on ……………. at ………………

You are entitled, if you wish, to be accompanied by a companion or trade union representative.

Yours sincerely

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Letter (ii): Sample letter inviting a witness to attend an investigation meeting in respect of lesser or gross misconduct allegations

Date ..................

Dear

I am writing to request your attendance at an investigation meeting with ………………………. who is investigating an allegation made against …………………….

The meeting will be held on ……………..at ……………….

You are entitled, if you wish, to be accompanied by a companion or trade union representative.

Yours sincerely

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Letter (iii): Sample letter to a witness to request their attendance at a disciplinary hearing for either lesser or gross misconduct

The hearing in respect of lesser misconduct allegations would be before the headteacher or chair of governors if about the headteacher.

Date ..................

Dear

Re: Disciplinary hearing on ………….

I am writing to inform you that you are required to attend as a witness at the disciplinary hearing of …………………… The hearing will take place on ………………. and will commence at ………..

The headteacher (or chair of governors if allegations are about the headteacher) will be hearing evidence concerning the allegation(s).

Should you wish to discuss this matter please feel free to contact me on the above number.

Yours sincerely

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Gross misconduct allegations would be heard by the governing body staff disciplinary and dismissal committee.

Date ..................

Dear


I am writing to inform you that you are required to attend as a witness at the disciplinary hearing of …………………… The hearing will take place on ………………. and will commence at ………..

The governing body staff disciplinary and dismissal committee will be hearing evidence concerning the allegation(s).


Yours sincerely

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Letter (iv): Sample letter to member of staff to request their attendance at a disciplinary hearing for either lesser or gross misconduct

Lesser misconduct allegations would be heard by the headteacher or chair of governors if about the headteacher.

Gross misconduct allegations would be heard by the governing body staff disciplinary and dismissal committee.

Date ..................

Dear


I am writing to inform you that you are required to attend a disciplinary hearing. The hearing will take place on ………………. and will commence at ………..

The headteacher and/or chair of governors or governing body staff disciplinary and dismissal committee [delete as appropriate] will be hearing evidence concerning the allegation(s).


Yours sincerely

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Letter (v): Sample letter for lesser misconduct – conclusion from a disciplinary hearing with the headteacher/chair of governors (if about the headteacher), notice of final written warning

Date ..................

Dear


I refer to the disciplinary hearing before the headteacher/chair of governors which you attended on ……………….. I am writing to confirm the decision taken that you be given a final written warning under the provisions of the school’s staff disciplinary procedure.

The unsatisfactory conduct in respect of which this warning is given was: ……………..

The conduct improvement expected is:

•……………..

•……………..

•……………..

•……………..

This warning will be placed on your personal file, but will be disregarded for disciplinary purposes after a period of [insert number] months, subject to the maintenance of satisfactory conduct. For the avoidance of doubt this means that this warning will remain in effect until [insert date].

The likely consequence of further misconduct/insufficient improvement [delete as appropriate] is your dismissal.

You have the right of appeal against this decision in writing to the clerk of the governing body within [insert number] school days of receipt of this letter.

Yours sincerely

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Letter (vi): Sample letter for lesser misconduct – conclusion from a disciplinary hearing with the headteacher/chair of governors (if about the headteacher)

Date ..................

Dear

Oral warning/written warning/training and/or development

I refer to the disciplinary hearing before the headteacher/chair of governors you attended on ……………….. I am writing to confirm the decision taken that you be given an oral warning/written warning/training and/or development under the provisions of the staff disciplinary procedure.

The unsatisfactory conduct in respect of which this warning is given was: ………………………………………………

The conduct improvement expected is:

•……………..

•……………..

•……………..

•……………..

This warning will be placed on your personal file, but will be disregarded for disciplinary purposes after a period of [insert number] months, subject to the maintenance of satisfactory conduct. For the avoidance of doubt this means that this warning will remain in effect until [insert date].

The likely consequence of further misconduct or insufficient improvement may be a final written warning.

You have the right of appeal against this decision and your appeal should be made in writing to the clerk of the governing body within [insert number] school days of receiving this disciplinary decision.

Yours sincerely

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Letter (vii): Sample letter for lesser misconduct – notice of appeal hearing with the staff disciplinary and dismissal appeals committee

Date ..................

Dear

Invitation to attend a staff disciplinary appeal hearing

You have appealed against the training and development/oral warning/written warning/final written warning [delete as appropriate] given to you by the headteacher (or chair of governors in respect of the headteacher), and which was confirmed in writing to you on ………………

The appeal hearing [you should specify whether a complete rehearing or an appeal on specific grounds is required] will take place on [date] at [place] at [time] a.m./p.m., as agreed. It will be conducted by the staff disciplinary and dismissal appeals committee of the governing body.

You have the right to be accompanied by a companion or trade union representative. If your chosen representative is unable to attend the appeal hearing at the time given above, you may propose another date and time for the meeting to take place.

You should ensure that a copy/copies/agreed bundles of any written submissions, upon which you wish to rely at the appeal hearing, are submitted at least [insert number] school days before the hearing, together with the names of any witnesses that will be attending on your behalf. The members of the staff disciplinary and dismissal appeals committee are…………………………………..

The decision on this appeal hearing is final and there is no further internal right of review. The possible outcomes from the appeal hearing are:

•[insert details].

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If there is any aspect of this letter or of the staff disciplinary procedure, to the extent that it applies to you, that requires further clarification, please contact me.

Yours sincerely

Clerk of the Governing Body’s Disciplinary and Dismissal Appeals Committee

[In the case of disciplinary action against a headteacher, the letter should be sent by the chair of governors.]

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Letter (viii): Sample letter – conclusion of an appeal before a disciplinary appeal hearing against a training and development/verbal/written warning given by the headteacher/chair of governors

Date ..................

Dear

Confirmation of outcome of staff disciplinary appeal hearing

You appealed against the decision made at the disciplinary hearing held on ……… when you were given a ……………….. warning in accordance with the staff disciplinary procedure. The appeal hearing, before the governing body staff disciplinary and dismissal appeals committee was held on …………………..

I am now writing to inform you of the decision taken by the staff disciplinary and dismissal appeals committee who conducted the appeal hearing. The decision of ……………. stands/the decision of ……………….. is to be revoked [amend as appropriate – specify if no disciplinary action is being taken or what the new disciplinary action is].

You have now exercised your right of appeal under the staff disciplinary procedure. The decision on the appeal hearing is final and there is no further internal right of review.

Yours sincerely

[If the headteacher appeals against a warning given by the chair of governors under lesser misconduct, the appeal would be heard by the staff disciplinary and dismissal appeals committee.]

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Letter (ix): Sample letter for gross misconduct – notice of a disciplinary hearing before the staff disciplinary and dismissal committee

Date ..................

Dear

Invitation to attend a staff disciplinary and dismissal committee hearing on [insert date]

I am writing to advise you that as a result of the investigation into allegations that [set out summary details of the staff member’s alleged misconduct], your attendance is required at a formal disciplinary hearing before the governing body staff disciplinary and dismissal committee. If the allegation(s) is/are proven this could lead to the issuing of a written warning/final written warning/the termination of your employment [delete as appropriate].

The hearing will take place on [date] at [place] at [time] a.m./p.m. as agreed. It will be conducted by the staff disciplinary and dismissal committee of the governing body.

You have the right to be accompanied by a companion or trade union representative. If your chosen representative is unable to attend the hearing at the time given above, you may propose another date and time for the meeting to take place within five days of the date suggested in this letter for the hearing.

You also have the right to provide written submissions and to invite witnesses to give evidence in support of your case. You should ensure that a copy/copies/agreed bundles of any written submissions upon which you wish to rely at the hearing are submitted at least [insert number] school days before the hearing, together with the names of any witnesses that will be attending on your behalf. The governor members of the staff disciplinary and dismissal committee are……………………………………..

I confirm that Mr/Mrs/Miss/Ms [insert name] who will be the presenting officer has indicated that the following witnesses will be attending the hearing as part of the management case.

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•[Insert details]

You will also have the right to appeal against the decision of the staff disciplinary and dismissal committee.


Yours sincerely

Clerk of the Governing Body’s Disciplinary and Dismissal Committee


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Letter (x): Sample letter for gross misconduct – conclusion from a disciplinary hearing with the staff disciplinary and dismissal committee

Date ..................

Dear

Specified training and/or development/oral warning/written warning/final written warning/confirmation of decision to dismiss you from your employment [delete as appropriate]

You attended a disciplinary hearing before the governing body on …………………into allegations that………….. I am writing to confirm the decision taken that you be given specified training and/or development; or oral warning/written warning/final written warning or dismissed in accordance with the staff disciplinary procedure.

[A. The following words should be used for any sanction other than dismissal. This applies to any category of school.]

The training and development requirements identified are:……….. A letter confirming these training and development requirements will be placed on your personal file but will be disregarded after a period of ……………. provided the required training and development has been satisfactorily undertaken.

This oral/written/final [delete as appropriate] warning will be placed on your personal file but will be disregarded for disciplinary purposes after a period of …….. months [i.e. insert actual date of sanction expiry], provided that: [please list the behaviours or improvements required or are to be achieved within the life of this warning].


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[B. The following words should be used for a sanction of dismissal.]

[For community, community special and voluntary controlled schools and maintained nurseries.]

The staff disciplinary and dismissal committee considered all the information received and the reason for recommending to the LA your dismissal is as follows: [insert reason for dismissal].


Yours sincerely

[Note: For the schools mentioned above the LA will issue the notice of dismissal within 14 school days of the appeal being heard.]

[For voluntary aided and foundation schools.]

The staff disciplinary and dismissal committee considered all the information received and the reason for your dismissal is as follows: [insert reason for dismissal].


Yours sincerely

[Note: as the governing body in voluntary aided and foundation schools is the employer the governing body terminates the contract of employment and informs the local authority.]

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Letter (xi): Sample letter for gross misconduct – notice of appeal hearing before the staff disciplinary and dismissal appeals committee

Date ..................

Dear

Invitation to attend disciplinary appeal hearing

You have appealed against the written warning/final written warning/dismissal [delete as appropriate] confirmed in writing to you on ………………

The appeal hearing [you should specify whether a complete rehearing or an appeal on specific grounds is required] will take place on [date] at [place] at [time] a.m./p.m., as agreed. It will be conducted by the staff disciplinary and dismissal appeals committee of the governing body.

You have the right to be accompanied by a companion or trade union representative. If your chosen representative is unable to attend the appeal hearing at the time given above, you may propose another date and time for the meeting to take place.

You should ensure that a copy/copies/agreed bundles of any written submissions, upon which you wish to rely at the appeal hearing, are submitted at least [insert number] school days before the hearing, together with the names of any witnesses that will be attending on your behalf. The members of the staff disciplinary and dismissal appeals committee are…………………………………..

The decision on this appeal hearing is final and there is no further internal right of review. The possible outcomes from the appeal hearing are:

•[insert details].

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Yours sincerely

Clerk of the Governing Body’s Disciplinary and Dismissal Appeals Committee


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Letter (xii): Sample letter for gross misconduct – conclusion of the appeal hearing against warning/dismissal

Date ..................

Dear

Confirmation of outcome of disciplinary appeal hearing before the staff disciplinary and dismissal appeals committee

You appealed against the decision made at the disciplinary hearing held on ……… when you were given a ……………….. warning/or you were dismissed in accordance with the staff disciplinary procedure. The appeal hearing was held on …………………..

I am now writing to inform you of the decision taken by the appeals committee who conducted the appeal hearing. The decision of ……………. stands/the decision of ……………….. is to be revoked [amend as appropriate – specify if no disciplinary action is being taken or what the new disciplinary action is].

You have now exercised your right of appeal under the staff disciplinary procedure. The decision on the appeal hearing is final and there is no further internal right of review.

Yours sincerely

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Letter (xiii): Sample letter for gross misconduct – confirming suspension from duty

Date ..................

Dear

Suspension from duty with effect from [insert date]

Thank you for attending the meeting today. In accordance with the staff disciplinary procedure, I am writing to confirm your suspension from duty as from ……………….., pending the current investigation into the gross misconduct allegation [insert details]. [Insert name] has been assigned the role of investigating officer or I shall write to you again when I am in a position to be able to confirm who has been appointed to the role of investigating officer.

You are reminded that the act of suspension is not disciplinary action and does not imply a presumption of guilt. But it is a necessary means of ensuring that a full and fair investigation can take place.

You will be contacted in the near future to arrange a meeting, so that you may be given the opportunity to comment and provide a statement to the investigating officer on the above allegation.

Also enclosed is a copy of the school’s staff disciplinary procedure. Please read the section entitled ‘Suspension’ as this details all the conditions relevant to you and your employment status while you are suspended from your place of work. You will note from the procedure that you may be accompanied at the above-mentioned meeting by a companion or trade union representative if you wish.

Please provide your written undertaking that you will not contact other members of staff or visit your place of work during the suspension period, save where it is not reasonably practicable and where authorised in advance by myself or the headteacher. [For a letter in respect of the headteacher, ‘headteacher’ will be deleted.]

I am also mindful of the isolation suffered by some members of staff who find themselves in such circumstances, I will make arrangements for the LA occupational health unit to contact you directly to offer

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you any support and any help required. The continued effect of the suspension will be kept under review and I will write to you to notify you if it is considered that the suspension should continue or should come to an end, and the reasons for that decision.

Notwithstanding the above, I hope that the matters can be concluded promptly under the provisions of the school’s disciplinary procedure.

*I understand you are a member of ………….. union and that you may wish your representative to be party to all correspondence we send to you. I would be grateful if you could let me know who your representative will be by return post. I have included a prepaid envelope for this purpose.

Yours sincerely

Chair of the Governing Body/Headteacher

* Optional

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