The whole of the Trust How to access

							Document name:           Disciplinary Appeals Guidance
                         Notes for Directors/Managers
                         Hearing Appeals
Document type:           Human Resources Guidance



Staff group to whom it   Directors and Managers hearing
applies:                 Appeals



Distribution:            The whole of the Trust



How to access:           Intranet and internet



Issue date:              July 2004



Next review:             January 2010



Approved by:             Director of Human resources and
                         Workforce Development


Developed by:            James Corson Human Resources
                         Manager


Director lead:           Director of Human Resources and
                         Workforce Development


Contact for advice:      James Corson Human Resources
                         Manager or other Human
                         resources Manager
                                  CONTENTS




                                                     Page Number


1.    Introduction                                        1

2.    Purpose of the Disciplinary Appeal                  1

3.    Types of Appeal                                     2

4.    Role of the Director/Manager                        2

5.    Role of the Human Resources Representative          2

6.    Procedure at an Appeal                              3

7.    Evidence                                            3

8.    Decision                                            3

9.    Summary of the Main Points for Consideration        4




Appendix 1   -       Procedure for the Appeal
                        DISCIPLINARY APPEALS
               GUIDANCE NOTES FOR DIRECTORS/MANAGERS


1.   INTRODUCTION

     These guidance notes are designed to set out briefly the main points, which
     need to be considered by Directors/Managers when hearing Appeals against
     disciplinary warnings.

2.   PURPOSE OF THE DISCIPLINARY APPEAL

     The Trust's Disciplinary Procedure is based on accepted good employee
     relations practice (namely the ACAS Code of Practice), current employment law
     and the principles of natural justice. An important element of a fair and effective
     Disciplinary Procedure is a mechanism for the employee, where dissatisfied, to
     appeal against disciplinary action taken against him/her.

     The Appeals mechanism serves as a safety net for both the organisation and
     employee by providing an early opportunity to review the decision and where
     there are errors, for these to be rectified quickly.

     The purpose of an Appeal is to enable an independent review to be carried out
     as to the 'reasonableness' of the previous manager's decision. It is particularly
     important that the appeal does not become another disciplinary hearing but
     focuses on reviewing the process followed and the reasonableness of the
     decision, which has been taken.           In considering reasonableness, the
     Director/Manager will want to satisfy him/herself on the following points:

        Has a thorough and sufficient investigation been conducted?

        Was the manager's decision to take disciplinary action reasonable based on
         the evidence relating to the case?

        Was the disciplinary action decided upon reasonable, given the
         circumstances of the case?

        Is the treatment of the employee consistent with the Trust's general
         approach to similar cases?

        Has the matter been handled fairly and appropriately and is it consistent with
         the Trust's Disciplinary Procedure?

        Has the manager been (unknowingly) biased or prejudiced in anyway when
         reaching the decision?

        Is there any new evidence, which if known at the time would have altered the
         decision?



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        Is there any new evidence, which should now be considered?

        Particularly in cases of capability, has appropriate action been taken to try to
         assist the employee to maintain an acceptable standard?

3.   TYPES OF APPEAL

     The Disciplinary Procedure gives the opportunity to appeal against formal
     disciplinary action (ie oral, written, or final written warnings or dismissal).

     The appeal is normally to the next level of management, who has not been
     previously involved. In cases of dismissal, this would be a Sub Committee of
     the Trust Board.

     Where the appeal is to a Manager or Director, it may not be necessary for the
     whole case to be re-heard. A review, rather than a re-hearing of the case, is
     often appropriate.      The Human Resources representative may find it
     appropriate to facilitate discussion between the management and staff side
     representatives to seek agreement as to what issues are in dispute and how
     the appeal should be structured. If no agreement can be reached, it may be
     necessary for the appeal to take the form of a rehearing.

4.   ROLE OF THE DIRECTOR/MANAGER

     The Director/Manager must not have been involved in the case previously.

     In exceptional circumstances a professional adviser may be co-opted to assist.
     This would normally only be used where there are a number of professional
     issues involved in the case and the Director/Manager feels professional advice
     is needed to enable the case to be reviewed.

     The professional adviser would contribute to the decision making process, but
     the final decision would remain with the Director/Manager.

     The Director/Manager is responsible for ensuring the appeal is conducted in a
     fair and proper manner. He or she will take responsibility for chairing the appeal
     and ensuring the procedure is followed (see Appendix 1).

     A member of the Human Resources Directorate will be present to advise the
     Director/Manager. They will need to work closely together to ensure the smooth
     running of the appeal and that the proceedings comply with the principles of
     natural justice.




                                          2
5.   ROLE OF THE HUMAN RESOURCES REPRESENTATIVE

     The Human Resources representative will be an experienced member of the
     Human Resources Directorate.

     He/she will organise the appeal, ensuring that when statements of case are
     received, they are exchanged as soon as possible.

     The role, in addition to ensuring that administratively the appeal runs smoothly,
     is to advise the Director/Manager on procedural issues and to be available so
     that the Director can draw on their experience of disciplinary matters and
     possible precedents.

     The Human Resources representative will be present throughout the appeal and
     take notes on the case being heard.

     The Human Resources representative will also ensure that the follow-up
     documentation is sent out to all parties concerned.

6.   PROCEDURE AT THE APPEAL

     The procedure for the appeal is outlined in Appendix 1. Although minor
     variations may be allowed by the Director/Manager (as long as they do not
     jeopardise the process or disadvantage one party). Normally the procedure
     should be carefully followed. The purpose of the appeal is for the
     Director/Manager to hear the case in enough detail to reach a decision on the
     procedure followed by the manager and the merits of the case.

     The Management Side case can either be presented directly by the manager, or
     a Management Side representative (eg Human Resources Manager). If the
     case is not to be presented directly by the manager, he or she should still
     normally be present throughout the hearing and be subject to questioning at any
     time by the panel.

7.   EVIDENCE

     The Director will need to consider carefully the merits of the case and weight,
     which should be given to the evidence presented by both sides in support of
     their cases.

     New evidence that has come to light following the manager’s decision should be
     considered by the Director/Manager and may be taken into account when
     deciding the outcome of the appeal.

8.   DECISION

     The burden of proof is different than that used in the Criminal Courts. The
     decision should be that the manager taking the decision held a genuine belief
     that the incident (or circumstances took place). The circumstances themselves,
     being judged against the criteria of the "balance of probabilities", rather than
     "beyond all reasonable doubt".
                                          3
     There are three decisions that can be reached:

     1.     Not to uphold the appeal.

     2.     To uphold the appeal.

     3.     To decide that the disciplinary action was too severe and not in the band
            of reasonable action and, therefore, replace the original decision with a
            lesser warning (this may be as a result of new evidence being available).
            Additional supporting action (eg a development programme) may also be
            suggested if appropriate. The Director/Manager cannot replace the
            original decision with more severe disciplinary action. If he/she is not
            satisfied with the investigation or any other material aspect of what has
            gone before; it is for the Director/Manager to submit the matter, for further
            investigation and/or a new disciplinary hearing. The reasons for the
            decision are not usually given at the appeal.


9.   SUMMARY OF THE MAIN POINTS FOR CONSIDERATION


     1. To act in good faith and not be unduly influenced by what has gone before,
        or be committed to upholding the previous decision.

     2. To hear both sides of the case and to weigh up the pros and cons as
        objectively as possible.

     3. To be satisfied that the procedure has been followed properly and appreciate
        that the appeal hearing can put right earlier procedural deficiencies.

     4. To adjourn for further information or to refer a case back for further
        investigation, if dissatisfied with the way in which the original decision was
        reached.

     5. To consider all matters raised which are relevant to the decision, whether
        or not they were known to the manager at the time of taking the decision.

     6. Be satisfied that a thorough investigation has taken place and all
        reasonable efforts have been made to gather the relevant evidence.

     7. Was the decision of the manager consistent with other similar disciplinary
        decisions?




                                          4
                                                                  APPENDIX 1

PROCEDURE FOR THE APPEAL


1.    The management representative shall state the management case, in the
      presence of the appellant and his/her representative.

         The appellant or his/her representative shall have the opportunity to
          ask questions of the management representative.

         The Director/Manager (and professional adviser if present) shall have
          the opportunity to ask questions of the management representative(s)

2.    The appellant or his/her representative shall put his/her case in the
      presence of the management representative.

         The management representative shall have the opportunity to ask
          questions of the appellant or his/her representative.

         The Director/Manager (and professional adviser if present) shall have
          the opportunity to ask questions of the appellant or his/her
          representative.

3.    The management representative shall have the opportunity to sum up the
      case if they so wish.

4.    The appellant or his/her representative shall have the opportunity to sum
      up their case if they so wish.

      NB The appellant or his/her representative shall have the right to speak
      last. In their summing up neither party may introduce any new
      information.

5.    The management representative, the appellant and his/her
      representative shall withdraw, and are subject to being recalled if the
      Director/Manager hearing the appeal wishes to clarify any particular
      points.

6.    The Director/Manager shall announce his/her decision to the parties
      personally, if possible. The appellant shall, in any event, be notified of
      the decision in writing within three working days.

      NB Nothing in the foregoing procedure shall prevent those hearing the
      appeal from inviting either party to elucidate or amplify any statement
      he/she may have made.

The Director/Manager has the discretion to adjourn, in order that further
evidence may be produced by either party, or for any other reason.