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Disciplinary Policy, Procedure and Rules and Suspension Policy
Document Sample
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
