The investigating officer will conduct the investigations but may be accompanied by a third party who will take notes confidentially on behalf of the investigating officer. The decision as to who is the investigating officer will be taken as soon as there is a known incident to investigate. This should not be the direct line manager of the staff member under investigation if at all possible.
As soon as a disciplinary matter arises the investigating officer should first establish the facts, using investigatory interviews with those identified as being involved in or witnesses to the incident. Other useful evidence may include emails and other organisational documents and in some case photographs, or CCTV footage.
In some cases, for example unsatisfactory timekeeping or attendance, there may be no requirement for investigatory interviews. In such cases, the evidence gathered at this stage of the process may include file notes, return to work interviews etc. The important point is that all available evidence is gathered before a decision is taken about formal or informal action.
Timescales of Investigations
Initial investigations should be carried out immediately, while the events remain clear in the memory of those involved. All efforts should be made to ensure that investigations, including formal interviews are completed within two weeks of the alleged misconduct arising, although we acknowledge that more complex cases may take longer and when this is the case PVCSE will keep the employee informed.
Where a participant/client is involved, an assessment should be made about whether it is appropriate for them to be interviewed by the investigating officer, taking into account their own personal circumstances. If the participant/client is interviewed, then they can choose to have an appropriate staff member or other person of their choosing present for support.
The employee may be accompanied by a work colleague or trade union representative, providing this does not unnecessarily delay the investigation. There is no statutory right to be accompanied to an investigatory interview.
Once all investigatory interviews have been held and the investigation is concluded, the investigating officer should prepare a summary report to be passed on to the disciplining officer, along with any supporting evidence including notes of investigatory interviews and other relevant documents.
Decision to Act
The disciplining officer may or may not be the same person as the investigating officer and will then decide whether:
- no further action is necessary, or
- informal action should be taken, including an informal warning or letter of concern, or
- a formal disciplinary hearing is required.
1) If no further action is necessary, then the employee concerned should be told of the outcome of the investigation by the disciplining officer within 24 hours of the decision being made.
2) If informal action is necessary, then the employee concerned should be invited to an informal counselling meeting by their line manager, as outlined below. This meeting is informal and should not turn into disciplinary action. The meeting should be private, involving a two-way discussion, with the emphasis on finding ways to improve the situation, and take place within 48 hours of the investigation. It is essential that decisions and agreements are confirmed in writing within five working days of the meeting taking place.
Informal counselling can be considered as one option.
Formal disciplinary action is regarded by PVCSE as the last resort. We recognise that cases of minor misconduct may best be resolved through informal counselling, goal or target setting, advice or training and these do not form a formal part of this procedure.
Where an improvement is required, the concern will be discussed with the employee by their line manager as soon as possible after it has been observed.
The conduct giving rise to the concern will be explained and the required improvement stated, along with a reasonable timescale for improvement. Any foreseeable problems with complying with the request should be discussed and dealt with. The line manager should ask what support the employee needs in order to make the improvement, to ensure relevant and appropriate support is available.
The line manager should make a note that the conversation has taken place, confirming any agreed action plans and that it is reasonable to expect that the improvement is sustained. The employee should be informed of this within five working days, plus the fact that it may be necessary to move to the formal disciplinary procedure in the event that the informal route is unsuccessful.
It is hoped that the majority of concerns will be successfully dealt with in this manner.
Only when these options have been exhausted, or where matters are more serious, or where the issue is one of gross misconduct, should managers enter into the formal disciplinary procedure.
3) If the discussion reveals issues of a more serious nature, then the meeting should be adjourned, and the employee advised that the matter will now be considered under the formal disciplinary process.
If a formal disciplinary hearing is required, the employee should be invited in writing to attend a formal disciplinary hearing. The employee should be given at least 48 hours’ notice of the hearing. To enable the employee to prepare their response to the allegations, the letter should contain:
- the reasons for the hearing, e.g. the alleged misconduct or unsatisfactory behaviour
- the possible consequences or outcome of the hearing, if this may be dismissal
- details of the employee’s entitlement to be accompanied at the hearing by a work colleague or a trade union representative.
Outcomes of the Formal Disciplinary Procedure
Verbal warning: for unsatisfactory behaviour or misconduct of a relatively minor nature.
The employee should be given a timescale within which his/her behaviour or conduct must improve and should be in no doubt as to what “satisfactory” or “acceptable” behaviour or conduct standards are. The employee’s performance should be reviewed at regular intervals during the timescale set for improvement.
The employee should be informed that a verbal warning is being issued and if there is no improvement, a written warning will be the next stage in the procedure.
A written record will be kept on the employee’s file for future reference. The employee should receive written confirmation of the warning and must be told of their right to appeal against the decision (see Appeal section below).
First written warning: for continued incidents of unsatisfactory behaviour or misconduct, or if an incident of more serious misconduct occurs.
If the employee’s poor conduct continues, or their behaviour fails to improve within the given timescale, or another incident of misconduct occurs, he/she should be sent a letter inviting them to attend another meeting to again discuss the shortfalls.
At this meeting the employee should be told the areas in which they failed to improve or make the required changes and should be given a chance to explain. If there is no satisfactory explanation for the failure to address the situation, the employee should again be told:
- the timescale in which his or her conduct must alter, or behaviour must improve and the standards required
- that he or she is being issued with a first written warning, and that failure to improve within the agreed timescales will result in a final written warning.
Again, the employee should receive written confirmation of the warning, and must be told of their right to appeal against the decision (see Appeal section below).
Final written warning: for further continued unsatisfactory behaviour or further misconduct, or if an incident of serious misconduct occurs.
If an employee’s first misconduct or unsatisfactory performance is sufficiently serious, it may be appropriate to move directly to a final written warning. This might be where the employee’s actions have had, or are liable to have, a serious or harmful impact on the organisation.
If the employee’s poor conduct is not addressed either partially, or fully, or should their behaviour still fail to reach a satisfactory standard, or an incident of serious misconduct occurs, a meeting should be held to discuss the shortfalls. Again, the employee should be told the areas in which his or her work or actions are unsatisfactory and should be given a chance to explain. If there is no satisfactory explanation for the failure to address this, he or she should be told:
- the timescale in which his or her behaviour must improve or conduct alter and the standard which would be considered satisfactory;
- that he or she is being issued with a final written warning, and that if he/she is unable to reach a satisfactory standard of performance, they may be dismissed.
The employee should receive written confirmation of the warning and must be told of their right to appeal against the decision (see Appeal section below).
Dismissal with notice: for continued unsatisfactory behaviour or conduct
If there is no improvement within the given timescale, the employee should receive, in writing, a clear description of the ways his or her behaviour fails to meet the required standard or where conduct continues to cause concern, and will be requested to attend another meeting at which dismissal will be considered.
It is important that the employee is informed in writing at this stage that dismissal may be the outcome of this meeting, but that no decision has yet been made. At this meeting the employee should be told the specifics of where they have failed to improve and should be given the chance to explain. If no satisfactory explanation is given, the employee may be dismissed with notice.
The employee will be given notice of dismissal in writing and must be told of their right to appeal against the dismissal, the timescale in which to appeal, and to whom they should appeal. He or she should be instructed to lodge the appeal in writing, setting out the grounds on which it is being made.
A woman who is dismissed during pregnancy, maternity or adoption leave is automatically entitled to a written statement irrespective of length of service.
The Right to Appeal
An employee who feels that a disciplinary warning or dismissal is unfair may appeal against this. An appeal must be lodged, in writing, within seven calendar days of the decision being notified to the employee concerned.
The employee should clearly state the grounds on which the appeal is made (e.g. the finding is unfair, the penalty too harsh, new evidence comes to light, or because of a procedural defect).
An appeal hearing will be arranged without unreasonable delay. Where possible, the appeal will normally be heard by a member of staff senior to the person making the original decision, and not previously connected with the disciplinary process so that an independent decision may be made. If this is not possible, then a further independent party or other external party may be requested to attend the hearing and advise.
The person conducting the appeal is advised to be accompanied by a trustee (from the HR sub committee) of PVCSE, who will act as a witness and take full notes of everything that is said. Where there is no such person available, or where matters of confidentiality require that it should not be a staff member, then an external person may be invited to attend in this capacity.
The employee has a statutory right to be accompanied and may, if he/she so wishes, be accompanied by a supporter, a work colleague, a trade union representative (who must be certified in writing by the union as having experience of, or having received training in, acting as a worker’s companion at disciplinary or grievance hearings) or by an official employed by a trade union at any appeal hearing. The employee should tell the person conducting the appeal hearing in advance whom he or she has chosen as a companion. As with a disciplinary hearing, the companion will be able to address the appeal hearing, ask questions on behalf of the employee and to confer with the employee but not to answer questions on behalf of the employee.
If either the employee or his/her chosen companion is unable to attend an appeal meeting arranged under this procedure for a reason which was not foreseeable at the time the meeting was arranged then we will attempt to rearrange the meeting for a date within five days of the original planned date.
If the employee is disabled, reasonable adjustments will be made to ensure that he or she is not disadvantaged at the hearing. This may include the provision of further assistance where necessary. Arrangements may also be made to assist any employee who does not have English as his or her first language and who may need an interpreter.
The grounds of the appeal will be considered when deciding the extent of any new investigation: it may be that a complete re-hearing will be held should there be any suspected procedural defects.
The employee will be notified of the appeal decision in writing within five working days, and the decision taken at the appeal hearing will be final.
Procedures relating to records: duration and removal of warnings
A copy of the written confirmation of any warnings, dismissal, suspension or other disciplinary penalty (plus any appeal documentation) will be given to the employee and a copy placed on the employee’s personnel file. Such documentation will be regarded as confidential.
Warnings will remain ‘active’ for the following periods unless a different period is confirmed in writing to the employee:
- verbal warning: six months from the date the warning is notified to the employee or such other period as may be specified
- first written warning or improvement note: twelve months from the date the warning is notified to the employee or such other period as may be specified
- final written warning: twelve months from the date the warning is notified to the employee, or indefinitely, depending on the circumstances resulting in the warning.
Following completion of the appropriate period, the warning will no longer be active and will normally be disregarded for the purposes of any future disciplinary action.
Records of disciplinary warnings will however be retained on file for purposes of disclosure as required by regulation 11 of the Transfer of Undertakings Regulations 2006.
Penalties other than dismissal
There may be circumstances where we consider alternative disciplinary action to dismissal to be appropriate. Such disciplinary action could include suspension for up to ten days, demotion (which may result in a reduction in pay for the employee), or transfer to another position which may result in a reduction of pay.
We reserve the right at any stage of this procedure to suspend the employee. Such suspension is not disciplinary action and does not involve any prejudgment. Only senior staff and the HR subcommittee have the right to enact a suspension.
A suspension is deemed necessary:
- Where relationships have broken down
- In gross misconduct cases
- Where there are risks to the employee’s or the organisation’s property or responsibilities to other parties
- Where there are reasonable grounds for concern that evidence has been tampered with, destroyed or witnesses pressurised before the meeting.
Suspension will be on full basic pay and will be for as short a period as possible in order to carry out any investigation of an alleged serious offence or to prevent any recurrence.
If suspended, the employee must be available to attend any fact finding interview called during the suspension period. Contact will be maintained with the employee throughout the period of suspension to keep him/her informed of the investigation. An employee who is suspended will only be allowed contact with PVCSE, through a nominated person and will only be allowed onto PVCSE premises in certain circumstances relating to the procedure, and only with the prior knowledge and consent of the suspending officer.