Action Plan Guidance for Disciplinary Procedure by ahr13625

VIEWS: 144 PAGES: 9

									                Guidance for drafting a Disciplinary Procedure

These notes (updated April 09) set out the key things you need to think about
and decide on when you are drafting a new or revised Disciplinary Procedure.
It is intended to be used in conjunction with the sample Disciplinary
Policy/Procedure available on this site. Every care has been taken to ensure
the information given is accurate and based on current law and best practice.
Each of the Policies and Guidance notes in the Community Toolkit download
file library are intended for guidance only and are not a substitute for
professional advice. The author, Glasgow Council for the Voluntary Sector,
Voluntary Action Orkney, Scottish Council for Voluntary Organisations, the Big
Lottery Fund or Skye and Lochalsh Council for Voluntary Organisations
cannot accept any claims arising from error or misinterpretation.

At the end you will find links to documents and websites that will also be
useful. Sample letters are also attached.

1      Existing procedures
If you currently have rules and regulations governing dealing with disciplinary
issues, even if they are not written down in a document, it may be that these
existing rules will have to be incorporated into your new written policy. You
should take professional advice about what you need to do if you already
have rules and regulations governing disciplinary issues before you plan to
implement a new policy.

2       The law
The law on handling disciplinary issues changed on 6th April 2009. Prior to
this, failure to follow the statutory minimum procedure would mean that a
dismissal would be automatically unfair. The new regime requires employers
to follow the ACAS Code of Practice, which does not have the weight of
statute, but does set out minimum standards of dealing with discipline and
dismissals. Make sure, therefore, that the disciplinary procedure that you
develop is in accordance with this. The Code of Practice is a slim document,
but is supplemented by a Guide which is more comprehensive. Links to both
are in the Resources section below. Bear in mind that transitional
arrangements are in place, and if disciplinary action was started before the 6 th
April 09 it is likely that the old statutory procedure will apply. If in doubt, seek
professional advice.

3     Disciplinary rules
You should clearly set out the rules relating to your organisation. Examples
are show in section 7 of the sample policy but it is important that you
customise these as appropriate for your own organisation. ACAS guidelines
recommend the involvement of staff and managers in drawing up the rules.

4        Informal action
It is true that to settle potential disciplinary issues through an informal process
is the preferred way to proceed and this should be considered at all times
before formal disciplinary procedures are invoked, unless the issue is very


Version 01 Updated 19 June 2009   Page 1 of 9
serious. The new ACAS Code and guidelines promote alternative methods of
handling disputes, such as mediation, prior to using formal procedures. The
sample policy calls the informal action „counselling‟, and shows an optional
section on Mediation. Mediation can be done in-house if staff are trained
appropriately and can be impartial. External mediators may be preferred. This
will cost money, but a speedy and effective settlement of disputes is likely to
be cost-effective in the long run.

5       Deadlines
The sample policy gives timings, in working days, for all parts of the
procedure to be implemented. You should check that these timings are
realistic for your organisation and if they are not you should decide the
timescales that would be realistic and make the appropriate changes. If the
timings to implement each stage are too short or too long this may impede the
process. It is necessary therefore to look at your available resources to deal
with discipline and decide what is right for your organisation. Bear in mind that
the Code requires that issues are dealt with promptly and without
unreasonable delay.

6      Recording Proceedings
You should make provision for the accurate recording of all meetings and any
investigation that happen as a result of a discipline. Confidentiality of all
records is vital.

7    Who Does What ?- Assigning roles
Formal disciplinary action involves 3 roles
 Person/s to gather the facts (investigator)
 Person/s to take the disciplinary hearing and make the decision on what
   action to take.
 Person/s to take the appeal hearing if the decision is appealed.

Decide what level of management and management committee (MC) will
conduct the investigation, hearing and appeal at the outset. Although not
legally required, it is certainly strongly recommended to designate a different
person or persons to each role. For example if someone from the MC or
staffing sub-committee conducts the investigation they would not be involved
in any other part of the process.

Where a disciplinary investigation is about the manager it is good to have a
sub-committee to conduct the investigation leaving other members of the MC
to conduct any subsequent disciplinary hearing and possible appeal. As
always you have to work within the resources you have and if you are in any
doubt about who will take on the roles please check with GCVS Employers
Advice Service or other professional advisers when you are customising this
policy.

8     Suspension
The sample policy allows for the suspension of one or more members of staff
that may be involved in the disciplinary issue. You should only include this


Version 01 Updated 19 June 2009   Page 2 of 9
section in your disciplinary procedure if the contract of employment contains a
clause allowing suspension. Otherwise you would be acting in breach of
contract as it is an implied term of a contract that the employer will provide
work. The clause in the contract should read: “The organisation may suspend
you from work on full pay during disciplinary proceedings, in order to
undertake investigations”.

Note that suspension is not disciplinary action and should be on full pay.
Suspension is normally to allow an efficient investigation and any subsequent
disciplinary action to take place. It is essential that if members of staff are
suspended, pending investigation or disciplinary hearing, the process is
followed through quickly, and within the any timescales set out in the
procedure.

9      Training and Development
Anyone within your organisation that may take part in the investigation or
disciplinary hearing and appeal should receive training on the policy and how
to implement it. It is also relevant that existing staff promoted into
management positions should have their training needs assessed.

10     Disciplinary Sanctions
The sample procedure has two formal warnings prior to dismissal. Your own
procedure should have no less than this. You may, however, have more if you
wish. Many organisations build in an extra stage at the beginning – often
called a „formal oral warning‟ although it should also be recorded and
confirmed in writing.

The disciplinary sanction given must equate with the breach of disciplinary
rules. To help you decide on this it can be helpful to find out if anyone else
has been disciplined for a similar offence and what their sanction was. While
no two cases are the same there should be a feeling of equity when it comes
to deciding what the most appropriate sanction is. „Reasonableness‟ is a
word that crops up a lot in employment law and a sanction should be seen to
be reasonable in all circumstances.

11      Gross Misconduct
The sample policy gives examples, and you should tailor these to suit your
own organisation. Make sure that the contract of employment gives you the
right to dismiss without notice for gross misconduct.
The contract clause for Termination of Employment should include, for
example: “In the case of gross misconduct you may be dismissed without
notice and without pay in lieu of notice”

12    Implementation
ACAS recommends that staff should be involved in the development of rules
and procedures. Once you have considered all of the above and have a
document you are happy with, send the document to all staff, staff
representatives or recognised trade union representatives asking for their
comments by a specific date. This is called the consultation process and you


Version 01 Updated 19 June 2009   Page 3 of 9
should give staff a reasonable amount of time to read the policy and return
their comments. Having an end date for this is essential so that
implementation of the policy can take place. Take any comments into
account when making changes and issue to staff as the final policy, outlining
how the consultation process impacted on the final document.

If you have a recognised trade union agreement there may be a process of
negotiation to go through before a final policy is agreed upon.


13    Circulation
The procedure should be given to all employees upon their induction. It is
recommended that the Disciplinary Procedure is issued along with the
contract of employment, although it should not form part of the contract.

14    Using Your New Policy
Once you have gone through the action plan and implemented your policy it
should be used in all discipline issues and the procedure that you have
decided upon should be followed to the letter. This way everyone will be
treated the same in line with current legislation.

15     Policy Review
Set a date to evaluate the effectiveness of the policy, perhaps annually, and
nominate a person or team to take responsibility for this. Changes to the
policy may also be required by changes in legislation and new case law.
Remember to ensure that any changes are notified to staff and all managers.

16    Resources
For more and related information you may find the following websites and
resources useful. Click on the underlined sections to access the website.


   The ACAS site http://www.acas.org.uk/index.aspx?articleid=1461 has a
    wealth of information on a range of employment issues. The law on
    handling disputes changed on 6th April 2009. Employers must now follow
    the ACAS Code Of Practice.
    http://www.acas.org.uk/CHttpHandler.ashx?id=1041
    ACAS have also produced more comprehensive Guidance Notes
    http://www.acas.org.uk/CHttpHandler.ashx?id=1043 and you should
    ensure that your own Policy and Procedure complies with this.

 ACAS and the CIPD have produced a guidance booklet on mediation
    called Mediation: An employer‟s guide, which can be downloaded.
    http://www.acas.org.uk/CHttpHandler.ashx?id=949&p=0

   Business Link is a government-provided site with lots of useful information
    on employing people. http://tinyurl.com/darno3 They have a section
    specifically about handling disciplinary issues. http://tinyurl.com/dbrnet



Version 01 Updated 19 June 2009   Page 4 of 9
   The UK Workforce Hub http://www.ukworkforcehub.org.uk/ helps third
    sector organisations make the best of their paid staff, volunteers and
    trustees through workforce development. It is simple to register as a user,
    and the section on Human Resources and Employment Practice contains
    a variety of updates, factsheets, templates and resources.
    http://www.ukworkforcehub.org.uk/hr


                                     Sample letters

Sample Letter notifying suspension

Sample invitation to attend a disciplinary hearing

Sample First warning

Sample Final Warning

Sample Dismissal letter

Sample invitation to an appeal hearing


Sample Letter notifying suspension

Dear
In accordance with the organisation's disciplinary rules and procedures and
following our conversation of [ ], I confirm that you are suspended on full pay
pending an investigation into the [allegations of gross misconduct made
against you].

Once the investigation is complete, I will contact you further to arrange a
meeting. This suspension is in order to allow us to conduct the investigation
impartially and fairly, and is in no way a form of disciplinary action against
you.

You are requested to remain available within reason should I need to contact
you. I would ask that, at this stage, you do not contact any of the Employer's
customers, suppliers or your work colleagues [save for your union
representative for the purpose of obtaining advice].

In the meantime, should you have any information that might be of assistance
to our investigation or wish to discuss anything, please contact me, and if I am
not available, contact [name].




Sample Invitation to attend a disciplinary hearing


Version 01 Updated 19 June 2009   Page 5 of 9
Dear
This letter confirms that we would like you to attend a disciplinary interview at
[time] on [date] at [place].

The purpose of the interview will be to discuss the issues explained in the
attached document. This document provides details of your job
performance/conduct, which we believe to be unsatisfactory when viewed in
the light of the Employer's policies, rules and standards.

You may, if you wish, bring a colleague or trade union representative of your
choice to the interview. The interview will be conducted by [ ] [and [ ] will also
be present].

Depending on the facts established at the interview, the outcome could be
disciplinary action against you, but a decision on this will not be made until
you have had a full opportunity to put forward your version of events and the
interview has been concluded.

Yours sincerely



Sample Letter giving a first written warning
Dear..
Following the disciplinary interview held on [ ] at [ ], this letter is to confirm that
the outcome of the disciplinary proceedings is that you have been given a first
written warning.

The circumstances giving rise to the issue of this warning were [summary of
the misconduct or unsatisfactory performance]. We discussed the matter fully
at interview and, having taken your explanations into account, have concluded
that your [conduct/performance] justifies a first written warning.

 [ This is in accordance with the Employer's [disciplinary/capability] procedure
following your earlier oral warning dated [ ].]

It was agreed at the interview that you would strive to [improve your
performance/ensure that there is no further misconduct on your part]. You
were also informed that a failure to improve/a repeat of similar misconduct or
any other instance of misconduct of any kind under the organisation's rules
within [ ] months will lead to the next stage in the procedure, ie a final written
warning.

This warning will remain active on your file for a period of [ ] from the date of
this letter, after which it will be disregarded.

You have the right, if you wish, to appeal against the decision to give you a
formal written warning. If you wish to appeal, you should do so in writing


Version 01 Updated 19 June 2009   Page 6 of 9
within [ ] working days of the date of this letter to [ ]. Your written notice should
state the grounds for your appeal.

Yours sincerely




Sample Letter giving a final written warning
Dear [ ]
Following the disciplinary interview held on [ ] at [ ], this letter is to confirm that
the outcome of the disciplinary proceedings is that you have been given a
final written warning.

The circumstances giving rise to the issue of this warning were [summary of
the misconduct or unsatisfactory performance]. We discussed the matter fully
at interview and, having taken your explanations into account, have concluded
that your [conduct/performance] justifies a final written warning. This is in
accordance with the disciplinary procedure/capability procedure following your
earlier [ oral and ] written warnings dated [ ].

It was agreed at the interview that you would [strive to improve your
performance/ensure that there is no further misconduct on your part]. You
were also informed that a [failure to improve/repeat of similar misconduct or
any other instance of misconduct of any kind under the Company's rules]
within [ ] months will lead to your dismissal.

This warning will remain active on your file for a period of [ ] from the date of
this letter, after which it will be disregarded.

You have the right, if you wish, to appeal against the decision to give you a
final written warning. If you wish to appeal, you should do so in writing within [
] working days of the date of this letter to [ ]. Your written notice should state
the grounds for your appeal.

Yours sincerely

Sample letter of dismissal for misconduct
Dear [ ]
I refer to the disciplinary meeting held in accordance with the organisation‟s
disciplinary procedure on [date]. As you are aware, this meeting was held in
relation to the allegation of [state type of misconduct] on [state date of alleged
misconduct].

During the meeting, it was established to the panel‟s reasonable satisfaction
that the alleged misconduct had occurred.
[It was also confirmed to you that the organisation has had cause to speak to


Version 01 Updated 19 June 2009   Page 7 of 9
you on [state dates of previous meetings and the stages of the disciplinary
procedure that they represented] with regard to past misconduct. You were
informed at the meeting on [date] that if you committed any further incident of
misconduct of any kind within [state length of time that final warning was to be
active], the organisation may would dismiss you.]

Despite listening to your representations [at the most recent meeting], I was
not able to find any mitigating circumstances and I am therefore writing to
confirm that the organisation has decided to terminate your employment.

The termination of your employment will take effect on [date] upon completion
of your [length of notice] notice period.
[OR]
Your dismissal will take effect as of today's date [state date] and the
organisation will make you a payment in lieu of your notice period of [state
length of notice period]. This will be paid to you within [ ] days of this letter.
Your form P45 will also be sent to you within [ ] days. All terms and benefits
associated with your employment will cease as of the end of today.]

You have the right to appeal against the decision to dismiss you. If you wish
to appeal, you should do so in writing within [five working days] to [named
person], stating the grounds for your appeal.

I have also enclosed a copy of the disciplinary procedure, which explains the
appeal procedure. You may also wish to speak with [name of person] or your
union representative with regard to the possibility of an appeal.

Yours sincerely




Sample invitation to a disciplinary appeal hearing
Dear
You have lodged an appeal against the [recorded oral warning/first written
warning/final written warning/notice of dismissal] confirmed in our letter to you
of [date].

Your appeal will be heard on [date] at [time] by [person], and will take place in
[room number, etc].

You have the right to be accompanied at the appeal hearing by a fellow
worker or trade union official if you so wish.

Please note that the decision at the appeal hearing will be final and there is no
further right of appeal.

Yours sincerely


Version 01 Updated 19 June 2009   Page 8 of 9
Version 01 Updated 19 June 2009   Page 9 of 9

								
To top