Disciplinary - HR Procedures - Human ... - University Of York

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1. 1. Procedure
2. 2. Guidelines

3. 3. Documents

Procedure

1. Application and Scope

1.1 The University expects satisfactory standards of behaviour, conduct and attendance from all its employees. The disciplinary procedure provides a framework for dealing with instances where employees are alleged not to have met the required standards of conduct. The aim is to ensure prompt, consistent and fair treatment for all employees and to assist in enabling both the employee and the University to be clear about the expectations of both parties.

1.2 The procedure applies to all employees employed by the University of York under a contract of employment.

1.3 Trade union representatives – Where disciplinary action is being considered against an employee who is a trade union representative the normal disciplinary procedure will be followed. Depending on the circumstances, however, and after obtaining the employee’s consent, it is advisable to discuss the matter at an early stage with an official employed by the union. As this will normally involve contact with the Regional Union Office this will be dealt with by Human Resources.

1.4 Criminal offences - If an employee is charged with, or convicted of, a criminal offence (outside of employment) this will not normally in itself be considered a reason for disciplinary action. Consideration will be given to the relevance and effect the charge or conviction has to or on the employee’s suitability to do their job and their relationship with the University, work colleagues, students and customers.

2. General Principles

The following principles will apply to the application of this procedure:

2.1 Informal Resolution - University managers are responsible for addressing conduct and behaviour issues as early as possible and for taking appropriate action. Where appropriate, steps will be taken to resolve issues on an informal basis without recourse to the formal procedure.

2.2 Investigation – Before disciplinary action is taken an investigation shall be undertaken. Where the manager with authority to hear the case considers it appropriate the contents of an investigation undertaken under another procedure (e.g. Academic misconduct) may be used as part of this process.

2.3 Nature of allegations – The employee against whom an allegation has been made shall be advised in writing of the nature of the allegations made against him/her and will be given the opportunity to state his/her case before any decision is made to take disciplinary action.

2.4 First breach of discipline -Dismissal will not be a sanction for a first breach of discipline except in the case of gross misconduct.

2.5 Suspension - At any stage in the procedure, if appropriate, an employee may be suspended. Suspension is not a penalty and is not an indication of culpability, there is therefore a presumption that suspension will be on full pay. The decision to suspend will be taken by a Senior Manager1after consultation with HR.

2.6 Right to be accompanied - All employees who are the subject of this procedure have the right to be accompanied at any formal meeting or disciplinary hearing held under the procedure by a trade union representative or work colleague.

2.7 Equality and Diversity - To ensure fair treatment and, where appropriate, provision of support by the University in the application of this procedure, employees should be invited to provide information about any equality or diversity issues which may be relevant.

2.8 Confidentiality – All parties involved in these procedures must ensure that they maintain, as appropriate, the confidentiality of the process within and outside the University.

2.9 Involvement of Human Resources – A member of the human resources team will be consulted and will advise on suspension, investigation and the formal procedure.

2.10 Appeals against Sanctions including dismissal - Sanctions or warnings issued as a result of procedures will remain in force pending the outcome of any appeal.

2.11 Timescales - While every endeavour will be made to comply with timescales, due to the complexity and or specific circumstances of cases, timescales may be extended. In such circumstances the employee will be advised of the reasons for any delay.

3. Informal Procedure

3.1 It is part of the normal supervisory process that managers bring to the attention of the employees the standards required and any failure to meet those standards.

3.2 Cases of minor misconduct, (e.g. recurrent lateness) should be dealt with by the employee’s line manager/immediate supervisor/ head of department (hereafter referred to as the manager) informally and without delay. The manager must speak to the employee, in private and should encourage them to conduct themselves in accordance with the required standards.

3.3 The purpose of these discussions is to ensure that the employee understands the nature of the concerns, expectations of improvements in conduct and where appropriate timescales and the nature of any support available.

3.4 It is advisable to confirm the outcomes of any discussions in writing to the employee. The line manager should retain any note of these informal discussions or meetings.

3.5 Following a satisfactory outcome to the use of the informal procedure, the matter will be considered resolved.

3.6 However, where an issue has been discussed with an employee informally and if:

• the issue has not been resolved and the problem persists
• the required improvements in conduct are not achieved
• further information becomes available during discussions which make the matter sufficiently serious

the formal procedure should be invoked.

4. Formal procedure

4.1 Where the informal process has not led to improved conduct, or where the alleged misconduct is of such seriousness that the manager considers informal action to be inappropriate, formal action will be initiated. Examples of misconduct are shown in Appendix A.

4.2 An investigation of the facts will be conducted as outlined in section 5 to determine whether there is a disciplinary case to answer.

4.3 Where an investigation indicates that there may have been an act of misconduct the employee will be required to attend a formal disciplinary hearing at which s/he shall be given the opportunity to respond and state his/her case.

4.4 Authority to take formal disciplinary action Appendix B details employees who are authorised to undertake disciplinary action in accordance with this procedure and following consultation with Human Resources.

5. Investigation

5.1 Before a disciplinary hearing is convened there will normally be an investigation into the circumstances of the alleged misconduct. The purpose of the investigation is to:

• establish the nature of the allegations
• gather evidence to enable a decision to be taken on whether there is a disciplinary case to answer
• consider if the matter should proceed to a formal hearing

5.2 The employee will be informed promptly of any allegation and that an investigation to establish the facts will be undertaken. The investigation must be concluded as soon as reasonably possible whilst allowing sufficient time to interview relevant parties. Employees must be kept informed if there is any unexpected delay in the process.

5.3 The employee’s manager may appoint an ‘investigatory manager’ not immediately involved in the case to investigate the facts of the situation. A member of the HR team will assist in ensuring that the matters are handled fairly, reasonably and in compliance with current legislation and University procedure.

5.4 If there is no disagreement concerning the facts of the case because the employee admits misconduct, an investigation may not be necessary before a disciplinary hearing is arranged. However, in cases where misconduct is not admitted or if there are conflicting views or evidence, further investigation will usually be appropriate before a decision is taken to proceed to a formal hearing.

5.5 Investigatory Interviews are part of the process to establish whether disciplinary action is warranted. As part of the investigation the employee who is the subject of the allegation will be asked to attend an investigatory interview at which s/he may be accompanied. The employee must inform the investigating manager of any facts or witnesses that s/he feels are relevant to the case. Where appropriate, witnesses will also be interviewed. Interview statements which are signed and dated will be produced.

5.6 The outcomes of an investigation may be:

• There is no case to answer and therefore no disciplinary action is taken
• The matter is dealt with informally, if appropriate with support and or training to resolve the matter.
• Recommendation that there is a disciplinary case to answer and a disciplinary hearing should be arranged

6. Disciplinary Hearing

6.1 Disciplinary Hearing – Preparation and conduct If following an investigation there is a recommendation that there is a disciplinary case to answer the employee will normally be given ten days notice and invited to attend a disciplinary hearing. The employee will be provided with details of the allegation(s) and an indication as to whether the alleged misconduct is considered as potentially a serious/gross misconduct case and therefore whether a sanction less than or up to dismissal may be considered. The employee will be invited to make any written submissions or bring forward witnesses. Prior to the hearing, any documentation that will be referred to in the hearing will be made available to the employee.

6.1.1 The employee will be given an opportunity to present his/her case, question witnesses and raise any issues s/he wishes to have considered. The manager conducting and hearing the case will be able to question those involved in the case.

6.1.2 The manager conducting and hearing the case will consider all representations then decide if on the balance of probabilities the allegation(s) are proven and if so what level of disciplinary sanction is appropriate.

6.1.3 The decision may be given verbally at the hearing and will in any event be conveyed or confirmed in writing within five working days of the hearing. The correspondence shall also notify the individual employee of his/her right to appeal against any sanction. In the event that the decision is taken to dismiss the employee, the letter will include the reasons for dismissal and the date that his/her employment will terminate, together with details of any notice arrangements.

7. Formal Levels of Disciplinary Sanctions

7.1 There are three levels in the formal disciplinary procedure with various sanctions dependent upon the gravity of the case and/or the on-going nature of the misconduct.

7.2 Level One Formal - Written warning

7.2.1 This is usually given if there has been either a minor breach in conduct which remains unresolved by informal action, or a first more serious breach of discipline.

7.2.2 The disciplinary sanction of a written warning given under level one will be retained on the employee’s personal file, subject to satisfactory conduct and/or improvements for twelve months from the date the decision is confirmed.

7.3 Level Two Formal - Final written warning

7.3.1 If the employee does not meet the required standard of conduct set out in level one or commits any other act of misconduct during the timescale of an existing warning, a further formal disciplinary hearing may be convened under level two of this procedure.

7.3.2 In some circumstances, where an alleged misconduct is sufficiently serious, it may be appropriate to progress straight to level two of this procedure.

7.3.3 The disciplinary hearing will be conducted following an investigation if appropriate and as described in section 6.1.

7.3.4 The disciplinary sanction of a final written warning given under level two will be retained on the employee’s personal file, subject to satisfactory conduct and or improvements for twenty-four months from the date the decision is confirmed.

7.4 Level Three Formal – Dismissal

7.4.1 If allegations are raised which are so serious as to constitute gross misconduct, such as those in Appendix A, it will be appropriate to consider taking formal action under level three of this procedure.

7.4.2 It may also be appropriate to move to level three if an employee does not meet the required standard of conduct set out in the final written warning given under level two of this procedure, or commits any other act of misconduct during the timescale of an existing warning.

7.4.3 If an investigation indicates that an act of further or gross misconduct may have occurred, the employee will be required to attend a formal disciplinary hearing.

7.4.4 The letter requiring attendance at the formal disciplinary hearing shall include a statement of the alleged misconduct and warn the employee that one consequence of the hearing may be the termination of his/her employment with or without notice.

7.4.5 The manager conducting and hearing case will consider all representations then decide if on the balance of probabilities the allegation(s) are proved and if so what level of disciplinary sanction, including and up to dismissal, is appropriate. On the basis of the information presented that manager may decide:

• To dismiss the employee (without notice in the case of gross misconduct)
• That there are insufficient grounds to dismiss the employee under this procedure;
• On the imposition, extension or renewal of a warning or final written warning issued under this procedure;
• To withhold an increment of salary
• On the removal of any title or office held in addition to the substantive appointment
• On the transfer of an employee to an alternative post within the University2
• That matters should be considered under an alternative procedure.

The above list is not exhaustive and the outcome may be varied according to the circumstances of the case.

8. Appeals

8.1 Appeals against warnings, sanctions or action less than dismissal

8.1.1 The employee has the right to appeal against a decision to issue a warning or sanction, less than dismissal, under this procedure. Any appeal should be sent to the Director of HR within ten working days of the employee receiving the written decision. The appeal must state the grounds for appeal.

8.1.2 The appeal will be heard by a manager that is senior to the manager who has made the decision to issue a sanction and who has had no prior involvement in the case. The appeal hearing will be a review of the decision to issue a sanction under the disciplinary procedure. The person conducting and hearing the appeal may substitute a different sanction from that appealed against, it is not intended that any substituted sanction would be more severe.

8.1.3 The decision may be given verbally at the appeal hearing and will in any event be conveyed or confirmed in writing within ten working days of the hearing.

8.1.4 The decision following the appeal shall be final and there will be no further internal right of appeal.

8.2 Appeals against dismissal

8.2.1 The employee has the right of appeal against a decision to terminate his/her employment under this procedure. Any appeal should be sent to the Director of HR within ten working days of the employee receiving the written decision to dismiss. The appeal must state the grounds for appeal.

8.2.2 The appeal will be heard by an appeal panel consisting of three senior managers of the University appointed by the Vice-Chancellor and will include academic representation where appropriate. The appeal panel will have had no prior involvement with the case and the appeal hearing will be a review of the decision to dismiss.

8.2.3 The decision may be given verbally at the appeal hearing and will in any event be conveyed or confirmed in writing within ten working days of the hearing.

8.2.4 The decision following the appeal shall be final and there will be no further internal right of appeal.

This procedure will be reviewed periodically to ensure compliance with changes in employment law and equality and diversity legislation.

Guidelines are available and should be referred to in the application of this procedure.

Notes

1. Senior Manager is defined in the Guidelines, Section 5: Roles and Responsibilities
2. By agreement with the individual concerned as an alternative to dismissal

Appendix A: Examples of misconduct/gross misconduct

Examples of Misconduct/Gross Misconduct

The following examples are not exhaustive but indicative of conduct that the University considers may warrant disciplinary action up to and including summary* dismissal in the case of gross misconduct:

Examples of misconduct

• Unsatisfactory attendance at work e.g. unauthorised or unreported absence or persistent lateness
• Misuse of internet, email and other University facilities
• Refusing or failure to carry out a reasonable management instruction
• Failure to comply with agreed working practices
• Failure to take reasonable care of University property or using it for personal use without necessary authorisation

Persistent offences of misconduct may lead to the termination of employment.

Any misconduct of a sufficiently serious nature may be deemed to be gross misconduct and dealt with accordingly. Examples of behaviour that may constitute gross misconduct are shown below. Again these examples are not exhaustive.

Examples of gross misconduct

• Academic misconduct – such as falsification of research data
• Assault on another employee, student or member of the public
• Breach of Confidence – serious and/or persistent breaches of confidence, including the covert recording of meetings
• Dishonesty – Theft, fraud or falsification of records
• Unlawful Discrimination – intentional unlawful discrimination or serious bullying and harassment of employee or student

*Summary dismissal - is dismissal for gross misconduct which takes immediate effect and there is no notice period or pay in lieu of notice given as a result of the dismissal.

Appendix B: Illustrative levels of authority to take disciplinary action

Level of disciplinary action	Head of Department IS line manager	Head of Department IS NOT line manager
Suspension Note: the decision to suspend will be taken after consultation with HR	Head of Department or member of University Executive Board	Head of Department or member of University Executive Board
Action or sanction less than dismissal Note: this includes Informal, Written warning (level 1), Final written warning (level 2)	Head of Department	Line Manager
Formal dismissal	Head of Department	Head of Department
Appeal for sanction less than dismissal	Senior manager	Senior manager
Appeal for dismissal	Three Senior managers not previously involved in the case.	Three Senior managers not previously involved in the case.

This table is illustrative and not exhaustive. The principles are that the line manager where sufficiently senior can deal with disciplinary action up to and including dismissal. Individuals can nominate a deputy as the authorised manager (with the exception of dismissal – although if not available or previously involved another equivalent manager could be involved, e.g. HoD of another department) but the principles of independence and having not previously been involved in the case or managing others involved in the case should apply.

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• Last reviewed: 31 May 2011