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Disciplinary Policy, Procedure and Rules and Suspension Policy
Attachment 4 Disciplinary Policy, Procedure and Rules and Suspension Policy Full Equality Impact Assessment Report 1. Name of Policy or Service: Disciplinary Policy, Procedure and Rules and Suspension Policy 2. Responsible Manager: Hendrika Santer Bream, Head of Workforce Policy and Partnership 3. Date EQIA Completed: 9 June 2008 4. Description and Aims of Policy (including relevance to equalities): The Disciplinary policy is supported by a Disciplinary Procedure and a set of rules. There is also a Suspension Policy. All organisations require a disciplinary policy which sets out the manner in which disciplinary issues are to be handled. The Disciplinary Policy states that the Trust will manage disciplinary matters in a fair and effective manner, to ensure that Trust standards of conduct and work performance are maintained. Disciplinary rules will help to promote high standards of performance and conduct. Procedures are intended to protect both the individual by ensuring fairness and consistency in their treatment and the Trust by ensuring that processes followed meet legal requirements. The Suspension Policy is intended to ensure that suspensions, whether due to disciplinary investigations or otherwise, are carried out in a consistent and effective manner. One of the ways in which people could be discriminated against could be by applying disciplinary sanctions including dismissal unfairly to certain groups. It is for this reason that public sector employers are required to monitor disciplinary outcomes by disability status, race and gender. 5. Brief Summary of Research and Relevant Data The legal requirement on carrying out an EQIA extends as far as the impact on different people directly or indirectly on the grounds of their disability status, race or gender. The Trust’s policy is to extend this review to include age, religion/belief and sexual orientation. This EQIA therefore considers the possibility that the Disciplinary Policy, Procedure or Rules, or the Suspension Disciplinary Policy EQIA draft 1 1 Policy could lead to unintended negative impacts on different people on all the six dimensions listed. The primary source of evidence was the report into the data held by the Trust on its disciplinary outcomes and procedures for the periods April 2006 to March 2007 and April 2007 to February 2008. In addition, concerns raised by Staff Side that some groups were more likely to be disciplined than others (specifically ethnic minority staff and staff in Capital, Estates and Facilities) were considered and discussed. The data was discussed at a meeting of the working group with trade union representatives and HR staff present, and included considering what measures could be put in place to avoid unfair outcomes to certain groups. The monitoring report is included as Appendix 1. The main findings of the monitoring report were that: • Ancillary staff represented 27% of the staff being disciplined in each of the two years but formed only 8% of the overall workforce, in other words they were overrepresented. • Staff in Bands 1 & 2 had the highest number of disciplinary cases within both periods. Under 15% of the overall workforce are in Band 2 posts yet 35% of the disciplinary cases were in Band 2 in 2006 – 07 and 23% between April 2007 – February 2008 • In 2006 – 07, 35% of the disciplinary action taken was against black staff. In the period April 2007 to February 2008 this rose to 37%. Black staff account for 17% of the workforce. • In 2006 – 07, 34% of the disciplinary action taken was against white staff. In the period April 2007 to February 2008 this was 29%. White staff account for 49% of the workforce. • Further analysis of the disciplinary data by ethnicity and band revealed that, within band, the disciplinary action taken against staff was roughly in proportion to the representation of ethnic groups within the band. However in 2006 – 07 there seemed to be disproportionate numbers of black and minority ethnic (BME) staff being disciplined at Band 5 & 6 compared to the numbers of BME staff employed. However this trend has not continued in 2007-08. • Men were overrepresented amongst those subject to disciplinary action, forming 47% to 53% of the group, while only forming 27% of the workforce. • Consideration of the reasons for disciplinary action did not indicate that disciplinary action being taken was unreasonable considering the disciplinary offences. There was no way of knowing what other disciplinary offences were taking place which were not being brought to hearings. • There were no particular concerns arising from the data in relation to disability, age, religion or sexual orientation. • The numbers of appeals were small and made meaningful statistical analysis difficult. Disciplinary Policy EQIA draft 1 2 6. Methods and Outcome of Consultation Consultation took place through the following means: • Input was sought from Staff Side, managers and HR managers at an early stage • A working group with Staff Side and HR discussed issues and considered drafts • The Trust Joint Staff Committee discussed the policy’s development • Personnel and Workforce Subcommittee received an early report and gave feedback • Towards the end of the development of the policies and procedures, all staff were invited, via GTi, to make comments on the drafts and seven responses were received (appendix 2). The drafts are the result of the work between management and Staff Side to draw together the results of the early consultation. Detailed work was done in the working group to consider the data report and to look at causes for the particular findings and possible measures to create a more balanced outcome in future. 7. Results of Initial Screening or Full Equality Impact Assessment: Equality Group Assessment of Impact Age No specific concerns were identified Gender Men were overrepresented amongst those subject to disciplinary action. In the consultation on the impact assessment, the view was taken that this finding was consistent with other organisations. However, this required consideration of measures which would mitigate the effect. Race Black staff were overrepresented amongst those subject to disciplinary action. This required consideration of measures which could prevent discrimination being the cause. Sexual No specific concerns were identified Orientation Religion or belief No specific concerns were identified Disability No specific concerns were identified Staff band Staff in lower bands were overrepresented amongst those subject to disciplinary action. It was felt that this required action and steps to be taken to mitigate this, particularly as ethnic minority staff are more highly represented in the lower bands. Disciplinary Policy EQIA draft 1 3 8. Decisions and/or Recommendations (including supporting rationale) Clearly, although the results of the analysis of data revealed that some groups were more likely than others to have been subjected to disciplinary action, a disciplinary policy and procedure are needed. Through discussion at the working group, it was agreed that the following actions should be taken to mitigate the likelihood of discrimination: • Clear communication about rules and standards so that all staff are aware of expectations on them and less likely to breach them without being aware • Training for managers in managing a diverse workforce to minimise the risk of inconsistent application or lack of cultural sensitivity (this is already in place) • Communication of the policy so that managers and staff behave and are treated consistently • Enforcement of consistent standards. In addition, further monitoring would need to take place to enable the further review of disciplinary action. Responses to and amendments made as a result of the consultation are set out in Appendix 3. 9. Equality Action Plan • Communicate the policy widely and clearly and make it an explicit expectation on managers that they communicate the rules to their staff on joining and at regular intervals • Continue with the training for managers in managing a diverse workforce and in managing discipline • Set in place a process within HR for reviewing consistency of approaches and outcomes at the time of launching the new policy • Continue with monitoring and analysis of data in order to meet our statutory duty, including all formal outcomes and suspensions, providing data to the Personnel & Workforce Board Sub-Committee for Trust Divisions on a regular basis • Continue to focus on reducing the number of staff whose demographic information is unknown to improve the validity of future monitoring data. This is particularly important for ethnic origin and disability where it is a statutory requirement that the Trust undertakes monitoring • Continue to raise awareness of Trust’s Values and the standards of behaviour expected by staff 10. Monitoring and Review Arrangements (including date of next full review) Monitoring will be as set out in paragraph 7. The policy will be reviewed again within three years. Disciplinary Policy EQIA draft 1 4 Appendix 1 Disciplinary Data for the periods April 2006 –March 2007 and April 2007 – February 2008 1.0 Introduction Within the period April 2006 to March 2007 122 staff were subject to disciplinary action. Within the current year April 2007 to February 2008 (11 months) there were 73 staff subject to disciplinary action and as the year has not yet ended a further 27 cases still being investigated. The following charts highlight the breakdown of these disciplinary cases by staff group, ethnicity, band, gender and disability. 1.1 Staff Group The first 3 charts illustrate the percentage of staff disciplined by staff group. The main three staff groups being disciplined are Admin & Clerical, Nursing and Midwifery and Ancillary Staff which has been consistent over the 2 periods. The only area where this is disproportionate to the staff groups employed by the Trust is Ancillary, where they represent 27% of the staff being disciplined but there are only 8% employed overall in the Trust. % of Staff Disciplined by Staff Group Apr 06-Mar 07 7% 2% 29% 28% 7% 27% A&C Ancillary Maintenance N&M PTB Senior Mgt Disciplinary Policy EQIA draft 1 5 % of Staff Disciplined by Staff Group Apr 07-Feb 08 7% 1% 23% 33% 27% 9% Admin & Clerical Ancilliary Maintenance Nursing & Midwifery PTB Other % Staff by Staff Group as at March 2007 6% 2% 3% 20% 9% 4% 8% 9% 1% 38% A&C Anc Maint N&M PTB Senior Mgt Medical & Dental PAM Pharmacist Scientist 1.2 Band Staff in Band 1 & 2 have had the highest number of disciplinary cases which is consistent within both periods. Under 15% of the overall workforce are in Band 2 posts yet 35% of the disciplinary cases were in Band 2 last year but which has dropped to 23% this year to date. Disciplinary Policy EQIA draft 1 6 Disciplinary Action Taken by Band Apr 06-Mar 07 40 35 No of Disciplinaries 30 25 20 15 10 5 0 Band 1 Band 2 Band 3 Band 4 Band 5 Band 6 Band 7 Band 8 Snr Manager Band % of staff Disciplined by Band Apr 07-Feb 08 25 20 15 10 5 0 Bank Staff Medical Band 1 Band 2 Band 3 Band 4 Band 5 Band 6 Band 7 % of Staff by Band as at March 2007 25.00% 20.00% 15.00% 10.00% 5.00% 0.00% 8a 8b 8d 6 8c 1 2 3 4 5 7 9 nd nd nd nd nd nd nd n nd nd nd nd Ba Ba Ba Ba Ba Ba Ba Ba Ba Ba Ba Ba Disciplinary Policy EQIA draft 1 7 1.3 Ethnic Group 35% last year and 37% this year of the disciplinary action taken was against black staff, 34% last year and 29% this year to date against white staff which are the largest groups identified in the charts below. When compared to the Trust overall figures black staff account for 17% of the staff employed compared to 49% of white staff. % of Staff Disciplined by Ethnic Group Apr 06-Mar 07 17% 7% 35% 34% 4% 3% Asian Black Mixed Other Specified White Not Given/Not known % of Staff Disciplined by Ethic Group Apr 07-Feb 08 2% 27% 37% 29% 2% 3% Asian Black Mixed Other Specified White Not Given/Not known Disciplinary Policy EQIA draft 1 8 % Staff by Ethnic Group as at March 2007 7% 21% 17% 2% 4% 49% Asian Black Mixed Other Specified White Not Given The charts below analyse the disciplinary cases by ethnicity and band to see if there are any trends in this area. Last year the data highlights that there seemed to be disproportionate numbers of staff being disciplined at Band 5 & 6 compared to the numbers of BME staff employed. However this trend has not continued this year and it can be seen that there are disproportionate number of staff being disciplined at Band 2 & 3 compared to the numbers of BME staff employed. BME disciplinary totals and staff in post by Band April 2006-March 2007 80.00% 70.00% 60.00% 50.00% % Disciplinaries of BME staff by Band % 40.00% % BME in post by Band 30.00% 20.00% 10.00% 0.00% f er 1 2 3 4 5 6 7 8 9 af nd nd nd nd nd nd nd nd nd ag St an Ba Ba Ba Ba Ba Ba Ba Ba Ba al M ic ed r Sn M Band/Grade Disciplinary Policy EQIA draft 1 9 BME Disciplinary Totals & staff in post by Band April 07 -February 08 120.00% 100.00% 80.00% % Disciplinaries of BME staff by Band % 60.00% % BME in post by Band 40.00% 20.00% 0.00% Band The charts below also look at disciplinary action taken by sanction and in relation to ethnicity. Disciplinary Action Taken by Ethnicity Apr 06-Mar 07 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% Dismiss - Dismiss - Dismiss - Final Warning Oral Warning Resignation Written Capability Gross Misconduct Prior to Warning Misconduct Hearing White Not Given/Not Stated Asian Black Mixed Other Specified Disciplinary Action taken by Ethnicity Apr 07-Feb 08 100% 80% 60% 40% 20% 0% No Case Informal Verbal Written Dismissal Resigned Ongoing Referred to Action Warning Warning to answ er Hearing White Not stated/Not Know n Asian Black Mixed Other Specified Disciplinary Policy EQIA draft 1 10 ESR now enables us to easily collate and track the types of issues staff are being disciplined for which can be cross referenced which is shown in the chart below in terms of ethnicity. Nature of Allegation by Ethnicity Apr 07-Feb 08 100% 1 2 80% 12 1 1 1 3 1 2 8 1 5 1 60% 4 1 1 2 1 1 3 1 1 1 1 40% 4 1 7 1 2 3 1 1 20% 7 3 4 2 1 7 0% Convicted of a Criminal Maltreatment of Patient / Fraud Misconduct BehaviourInappropriate Negligence Maltreatment of other Safety Requirements Other Allegation Breach of Health and Disregard of Inappropriate use of Failure to Renew Prof Theft of Money or Unsatisfactory confidentiality Falsification of records instructions Timekeeping Attendance - NHS resources Breach of materials Inappropriate Behaviour Worker Offence Reg Client White Not Stated/Known Asian or Asian British - Indian Other Specified Mixed Black 1.4 Gender Over the two periods there has not been a great variance in the number of men and women being disciplined but it does show that compared to the number of men employed in the Trust 27%, compared to the number of women employed 73% this is disproportionate. % of Staff Disciplined by Gender Apr 07-Feb 08 47% 53% Female Male Disciplinary Policy EQIA draft 1 11 % of staff being disciplined by Gender Apr 06-Mar 07 47% 53% Female Male % of Staff by Gender as at March 2007 27% 73% Female Male 1.5 Disability The number of unknowns is so high that it is difficult to draw any statistical inferences from last year’s figures and the report from ESR was run without this field included so cannot be reported on for this year to date. A piece of work is underway to improve data in this area and when this is complete it would be worthwhile re-looking at it. % of staff disciplined by Disability Apr 06-Mar 07 2% 27% 71% Disabled Not Disabled Not Known Disciplinary Policy EQIA draft 1 12 1.6 Age The charts below highlight the percentage of staff disciplined in the 2 periods by age groups and compared with the age profile of the Trust this shows no areas for concern. % of Staff Disciplined by Age Apr 06-Mar 07 15% 21% 28% 36% <30 30-39 40-49 50-60 % of Staff Disciplined by Age Apr 07-Feb 08 11% 1% 22% 31% 35% <30 30-39 40-49 50-60 >60 Disciplinary Policy EQIA draft 1 13 Percentage of Staff by Age Group at March 2007 3% 16% 19% 25% 37% <30 30-39 40-49 50-60 Over 60 1.7 Religious Belief The chart below also highlights the percentage of staff disciplined by religious belief, the data for which is not available to compare for last year. The chart highlights the large number of unknowns but the largest group disciplined are Christians which is 29% and this is not disproportionate with the overall percentage of Christians employed by the Trust, 36%. % of Staff Disciplined by Religious Belief Apr 07-Feb 08 8% 29% 50% 1% 5% 6% 1% Atheism Christianity Hinduism Not w ished to disclose Islam Judaism Undefined Disciplinary Policy EQIA draft 1 14 Staff by Religious Belief as at March 2007 7% 44% 36% 1% 8% 1% 2% 0% Atheism Christianity Buddhism Hinduism 1% Islam Judaism Other Sikhism Don’t w ish to disclose Unknow n 0% 1.8 Appeals Appeals are also now recorded on to the Employee Relations module of ESR and from the 7 appeals to date this year 2 were from white staff and 5 were from black staff. The original decision of 4 of the appeals which reached the first stage of appeal were upheld. 3 appeals progressed to the 2nd level at which the original decision was upheld for 2 and 1 was overturned. 1.9 Overall Data The overall data also shown by Divisions is overleaf for each of the 2 years. Disciplinary Policy EQIA draft 1 15 Appendix 2 Responses to disciplinary consultation on GTi (edited down where possible to reduce the length and grouped into themes) General principles 1. The clause on confidentiality could inhibit a person under investigation from talking to their colleagues about their problems 2. There should be some pastoral care of people under Trust procedures and this should be addressed in the Policy 3. Could we be more explicit re: other staff e.g. contractors, agency staff and how they may be dealt with under this policy? 4. Can the Trust monitor the informal stages of this policy? 5. Could we promote diversity and equality by saying the Trust monitors the use of the policy as part of our statutory employment monitoring duties? Informal stages and record keeping 6. Informal talks can be misinterpreted. The manager may believe that they have conducted a discussion which is an informal procedure, but the employee does not recognise this. After any level of procedure, there should be a letter written by the manager to the employee setting out what was said and agreed, and that it was part of trying to settle a problem informally. People from outside the UK may not be familiar with ‘chats’ and they are then deemed not to have responded correctly to informal procedure. 7. The draft Operational Procedure does not explain the nature of the file note mentioned in paragraph 8 and in the informal action guidelines: it should specifically state that the file note should be a brief note not a detailed account. It does not specify that a file note should be kept by the manager on his files rather than being placed on the employee’s personal record. It does not specify a mechanism for ensuring that the employee is given the right to agree the content of the note. The ACAS code distinguishes informal warnings and counselling from warnings that become part of the employee’s record. If the disciplinary warning becomes part of the employee’s record it becomes a formal warning. 8. For informal discussion it will only be a file note or a letter – from my experience staff may question the genus of a file note especially at a later stage. Suspension 9. Should we mention something about people whose work permit or visa expires and confirmation of renewal has not been submitted to HR department in time as previously requested? They will be on suspension with no pay 10. Are you taking out the suspension review periods? 11. It would be useful to include advice about annual leave and sickness absence while an individual is suspended. Investigation 12. Welcome the extension to 4 weeks of investigation time limits but would suggest if that is exceeded then justification is provided as a matter of course. 13. The 20 days period for an investigation is a short time. 14. I think it would be useful if the Trust could recommend for an independent manager to undertake any investigations. Formal stages 15. The roles/responsibility of the supporting colleague need to be specifically described. The supporting colleague needs protection by explicit delineation of acceptable behaviour. Disciplinary Policy EQIA draft 1 16 16. Will the formal oral warning have to be done by a panel and will a management case have to be presented? If that is the case the line manager will not be able to issue this - see p10 in contrast to p25. 17. Section 25 on Authority to take action seems to pre-determine the outcome of the hearing in part and contrary to natural justice. Would like to suggest that the level of misconduct should determine the level of the manager rather that the disposal. 18. On the clause in the guidance on formal disciplinary hearings (paragraph 2), given that it is normal in the Trust for the investigation manager to present I could see much argument about the need to have them there or not, and about defining what is a complex case. Would suggest that the need to have the investigation officer there is determined either by the possible disposal or the level of misconduct? 19. Could we be more explicit about levels of authority to take action for senior posts and say that such cases would involve a Board member e.g. NED or someone external to the Trust at a sufficiently senior level in reviewing the case? 20. Do you think that in paragraph 12 if employee fails to attend a second time “...exceptional reasons" we might consider to omit the exceptional as this might cause dispute and just say that "the decision may be taken in their absence" and leave it to the panel to decide and give their reasoning. 21. Should we be more explicit and say that, ‘disciplinary and appeal panel hearings would reach decisions based on the balance of probabilities and not beyond all reasonable doubt’ Rules 22. Under “breach of statutory requirement” (rules, paragraph 5) should we add: “In such cases unpaid leave (or maybe use the word suspension without pay) and for professional registration unpaid leave or downgrading to an unqualified role will take place“ 23. Could we use the rules to promote the Trust’s Values, by reference along the lines of: ‘employees are expected at all times to promote the Trust’s Values and ethos…’ and then perhaps spell the Values out? 24. On the area of criminal action, could we differentiate between certain criminal offences e.g. disregard speeding offences. However, I can see a situation e.g. inter-Trust bus driver needing us to inform us of such offences and also say a situation where a senior anaesthetist caught drink-driving should inform the Trust and we may wish to consider action, but what about more general staff, should they routinely inform their line manager of each incidence of penalty points for careless driving e.g. speeding? Typing errors and minor drafting comments 25. On page 11 of 20 “Smoking with the Trust buildings or vehicles” should be within. 26. Do you think that is worth adding the Incident Decision Tree internet link Disciplinary Policy EQIA draft 1 17 Appendix 3 Comments and amendments following responses to disciplinary consultation on GTi General principles 1. It is appropriate to discourage people taking about disciplinary investigations with those who are not involved as it can breach the confidentiality of others and can be very damaging to working relationships in a department when other parties become involved. Staff may seek support from their union, from the staff counselling service and/or from a colleague who is supporting them under the procedure. 2. Contractors and agency staff fall outside the policy. 3. The informal stages take place in one-to-one meetings between employees and managers and cannot be monitored systematically. Informal stages and record keeping 1. The guidance on giving a file note to the employee following an informal chat is best practice and will misunderstanding about the requested change in behaviour. This should be kept by the manager on the employee’s file. Suspension 1. It is correct that employees whose work permit expires will be suspended and this must be on no pay as it is illegal to employ such a person. The suspension procedure has been amended to take this into account. 2. Suspension review periods are still in place. 3. Advice will be made available on the treatment of annual leave and sick leave when a person is suspended. Investigation 1. Any investigation should be carried out as quickly as possible, balancing this with the need to be fair and thorough. Following further discussion with Staff Side, the target maximum length of an investigation has been set at eight weeks and it is now proposed that, if an investigation goes beyond eight weeks, an employee may request a review. 2. Where appropriate, investigations are already carried out by an independent manager. This primarily occurs in the case of harassment or bullying allegations. Formal stages 1. Some guidance can be made available for supporting colleagues but they should adhere to the Trust’s normal rules regarding behaviour. 2. Although there must always be an investigation before a disciplinary sanction is issued, this does not have to take place at a separate meeting. Unless an investigation is complex, an issue can be investigated with an employee and a decision made at the same meeting, so long as the manager is authorised to take the level of action, and suitable opportunities have been given for the employee to give their defence, and for the manager to consider all the information properly. It is not therefore always necessary for one manager to present a case to another. 3. A manager bringing a case against an employee would have an idea as to the level of warning the misconduct, if found, would merit and should ensure that the person hearing the case is authorised to take that level of action. 4. The procedure states that a hearing can proceed if an employee fails to attend on a second occasion, but allowing for exceptional circumstances allows the manager hearing the case some flexibility, which is appropriate. Disciplinary Policy EQIA draft 1 18 5. It may be helpful to say that decisions will be made on the balance of probabilities, and the phrase has been added in Attachment 2 of the procedure. Rules 1. The points regarding breach of statutory requirement and the action to be taken are covered in other policies, such as the policy on statutory registration and the suspension policy. 2. The Values are a positive statement of the Trust’s intention, but they are not intended to be used for disciplining staff. 3. As regards disciplinary action, managers always need to consider the relevance of a criminal conviction to the post concerned. Employees must inform their managers of criminal convictions, but penalty points for careless driving do not constitute a criminal conviction. Typing errors and minor drafting comments 1. These have been taken into account. Disciplinary Policy EQIA draft 1 19
"Disciplinary Policy, Procedure and Rules and Suspension Policy"