Understanding Discipline in the Workplace

11 December 2014

Deborah Wardle, Assistant Head of Employee Relations

Unit Purpose and Aims

To develop knowledge and understanding of discipline in the workplace as required by a practising or potential first line

manager

Learning Outcomes

1. Understand the legal aspects and organisational policy relating to discipline in the workplace

2. Understand how to monitor discipline in the workplace

Assessment Criteria

1.1 Briefly describe the legal aspects of the disciplinary process1.2 Identify an organisation’s employment policies and

procedures that could guide the manager in dealing with disciplinary issues

2.1 Describe the purpose of the disciplinary procedure2.2 Identify the interpersonal behaviour and support skills required by a manager to monitor discipline in the workplace

Legal Framework

1. Employment Rights Act, 1996

2. Equality Act, 2010

Employment Rights Act, 1996

Provides a definition of what is an employee: ‘an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment’

There were key individual employment rights introduced by this Act including:

•Right to receive a written statement of terms and conditions ie the “contract of employment”, which includes details of pay, contracted hours of work, holidays, sick pay, notice periods•Right not to be unfairly dismissed•Maternity rights•Redundancy provisions, including right to a redundancy payment•Statutory minimum notice period for dismissals

Equality Act, 2010

To prevent discrimination of 9 protected characteristics:-AgeDisabilityGender ReassignmentMarriage and Civil PartnershipPregnancy and Maternity / PaternityRaceReligion or BeliefSexSexual Orientation

The Equality Act, 2010, sets out an additional duty on public sector employers to tackle discrimination and set an

example in making society fairer.

Conduct – Discipline

Disciplinary issues arise where there has been an alleged breach of conduct by one or more members of staff

The Trust’s Disciplinary Procedure provides a framework for managing conduct issues and potential disciplinary processes

Former PCT staff who transferred to the Trust as a result of TCS and hold PCT contracts of employment are subject to the PCT’s Disciplinary Procedure

Disciplinary Policies / Procedures

A revised Disciplinary Policy and Procedure is currently under negotiation and is expected to be ratified shortly byJNCC and agreed at TEG in January 2015.

This new Policy and Procedure will apply to all employees of the Trust, including PCT transferees.

Where there are conduct issues relating to Medical and Dental staff these are dealt with via the Trust’s Conduct, Capability, Ill Health and Appeals Policies and Procedures, where there is conflict between the two procedures.

ConductIt is important that a manager establishes whether there has been a deliberate act rather than a failure on the part of the employee to perform to the standards to which they should be capable. In the event of a deliberate, wilful, failure to perform this may be addressed by a disciplinary procedure as an act of misconduct. Where the investigation process indicates the failure is not deliberate, it may be more appropriate to consider utilising the Trust’s Capability procedure.

Disciplinary Procedures

These involve / may involve:

•Allegations•Suspension•Investigations, including formal interviews•Disciplinary Hearings•Disciplinary Sanctions•Appeals•Employment Tribunals

Allegations

Allegations may be received in a number of ways.

Once an allegation has been made it is really important to act without delay.

What are you going to do next?

Suspension – a Neutral act

Suspension from duty is normally carried out under the following circumstances:

•Where an allegation is potentially gross misconduct•Where a fair investigation cannot take place while the employee continues to carry out their duties, where the employee may be in a position to influence or interfere with the investigation in some way

Consider alternatives to suspension – can the employee continue to work with some temporary adjustments?

Investigations including formal Interviews

• Investigations should be commenced as a matter of urgency following receipt of an allegation.

• Investigative interview should be arranged by the manager without delay.

• Appropriate notice should be given of investigation

meetings and interviews, which does depend on the type of meeting being arranged - Suspension or formal interviews

• Where possible, meetings should be arranged within the normal working hours

• The invitation letter should be clear about the purpose / stage of the meeting and why it has been arranged

• The employee must be informed of their right to be represented at the meeting

• The letter should be clear about the potential consequences / outcome of the meeting as set out in the stages of the procedure

Disciplinary Hearings• A panel is arranged and chaired by a manager with the

correct authority

• The investigating manager presents their case, which may involve witnesses. The investigating manager may be asked questions by the panel and the employee.

• The employee or their representative presents their case (responds to the allegations), which may involve witnesses. The employee or their representative may be asked questions by the panel and the investigating manager

• Further questions may be asked of the investigating manager and the employee or their representative

• The investigating manager summarise their case

• The employee or their representative summarise their case

• Panel adjourns to consider their decision

• Employee and investigating manager are informed of the decision, which is then confirmed in writing

Disciplinary Sanctions

Sanctions currently available are:

•Counselling record•First Stage Warning•Second Stage Warning•Final Warning•Dismissal (with or without notice)

Appeals• Employees have the right of appeal against a disciplinary

sanction

• Appeals are heard by a Panel who review the decision taken at the Disciplinary Hearing

• The Appeal format mirrors that of a Disciplinary Hearing but the Employee / Representative presents the reason for appeal before the management respond

• The Panel adjourns to consider their decision which is then communicated in writing

Employment Tribunals• An employee may make an Employment Tribunal

application for a number of reasons eg unfair dismissal, discrimination

• An Employment Tribunal is independent, and may order the employer to re-instate, re-engage or pay compensation if the individual wins their case

• Applications to Employment Tribunals usually have to be made within 3 months of the employment ending, or the problem happening at work

• An Employment Tribunal is a legal ‘court’ chaired by an Employment Judge and follows strict legal procedures

• A full ET hearing will take place only following an extensive process whereby alternative solutions such as settlement have been explored.

• There is a strict legal framework concerning attendance at the ET, witnesses, statements and availability

• STH always defends ET applications, with full legal advice and representation

HR Key Performance Indicators

The HR team has a set of KPIs we are working towards:

•Suspension 8 weeks•Investigation 4 weeks•Disc Hearing 3 weeks from end of the investigation•Outcome Letter max 7 days from Disciplinary Hearing•Appeal Hearing 4 weeks from receipt of Appeal•Outcome Letter 7 days from Appeal Hearing

Cost of case management

• Suspensions• Service provision• Staff engagement• Administrative costs• Key Performance Indicators• Employment Tribunals• Reputation

Some Metrics• There are currently 93 live Disciplinary cases in the Trust

• 34 people are currently suspended from duty

• Longest ongoing suspension in the Trust is currently 43 weeks

• Financial remedies in Unfair Dismissal claims can be up to £76,500

• Financial remedies in Discrimination claims are unlimited