1. Understanding Discipline in the Workplace
11 December 2014
Deborah Wardle, Assistant Head of Employee Relations

2. Unit Purpose and Aims
To develop knowledge and understanding of discipline in the workplace as required by a practising or potential first line manager

3. Learning Outcomes
Understand the legal aspects and organisational policy relating to discipline in the workplace
Understand how to monitor discipline in the workplace

4. Assessment Criteria
1.1 Briefly describe the legal aspects of the disciplinary process
1.2 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 procedure
2.2 Identify the interpersonal behaviour and support skills required by a manager to monitor discipline in the workplace

5. Legal Framework
Employment Rights Act, 1996
Equality Act, 2010

6. 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’

7. 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

8. Equality Act, 2010
To prevent discrimination of 9 protected characteristics:-
Age
Disability
Gender Reassignment
Marriage and Civil Partnership
Pregnancy and Maternity / Paternity
Race
Religion or Belief
Sex
Sexual Orientation

9. The Equality Act, 2010, sets out an additional duty on public sector employers to tackle discrimination and set an example in making society fairer.

10. 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

11. Disciplinary Policies / Procedures
A revised Disciplinary Policy and Procedure is currently under negotiation and is expected to be ratified shortly by JNCC and agreed at TEG in January 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.

12. Conduct
It 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.

13. Disciplinary Procedures
These involve / may involve:
Allegations
Suspension
Investigations, including formal interviews
Disciplinary Hearings
Disciplinary Sanctions
Appeals
Employment Tribunals

14. 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?

15. 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?

16. 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

17. 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

18. 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

19. 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

20. Disciplinary Sanctions
Sanctions currently available are:
Counselling record
First Stage Warning
Second Stage Warning
Final Warning
Dismissal (with or without notice)

21. 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
Current policy expectations include four levels of warning – including dismissal
The length of warnings increase as the level increases
First warnings – 6 months
Second warnings – 12 months
Final Warnings – 12 months
Outcome letters will all include future expectations where the employee remains in post.
Where the employee is terminated, the employee will be advised of expectations to return Trust property and not to reapply to the Trust as their application should not be considered due to their dismissal
Smart objectives has been covered in an earlier session, but should also be considered when given any objectives for improvement to an employee

22. 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

23. 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

24. 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

25. Cost of case management
Suspensions
Service provision
Staff engagement
Administrative costs
Key Performance Indicators
Employment Tribunals
Reputation
Not just about the employee – the wider implications for the department and the case
Introduced Key performance indicators to ensure consistency and time spent on investigating and progressing cases to a conclusion
Cost of any case impacts on the management team’s time involved and where going to Employment Tribunal’s a substantial cost for the progression and response to the case as well as the cost of any award to the employee

26. 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