Employee conduct: NHSScotland PIN policy

Annex D: Guidance for Disciplinary/Appeal Hearing Chairs

While this section relates to guidance for disciplinary hearing Chairs, individuals may also be involved in chairing hearings in other circumstances (i.e. in relation to grievances, dignity at work complaints or matters of capability). While the corresponding locally developed policies which cover these other areas should detail the procedure to be following in undertaking such a role, the following general principles will apply in all cases.

1 Who is Attending?

Explain who is attending and why - please remember that although you may be familiar with all those who are attending, the employee or their representative may not.

Ensure that the person accompanying the employee is acceptable in terms of the local policy (i.e. a work colleague or trade union/professional organisation representative).

2 Why are they Attending?

Explain the reasons for the hearing, ensuring that the employee understands the allegations which have been made and what policy you are following.

Establish at the outset if witnesses are to be called and who is responsible for ensuring that they attend.

If you have a note taker explain this and what will happen in relation to the management notes (i.e. that they are management notes, not approved minutes). It is important that a note of the hearing is kept, so that it can be referred to in any subsequent appeal or employment tribunal hearing. It is recommended that arrangements are made for someone who is not involved in the case to take a note of the hearing.

3 What Process is to be Followed?

If you have to deviate from your policy (e.g. the order in which the hearing is to proceed or who is hearing the case), explain this at the beginning and seek agreement to this.

Explain the order in which the information will be presented, i.e.:

• The investigating officer will present their case, with the opportunity for questions from the employee and/or their representative, and then from the panel;
• The employee and/or their representative will present their case, with the opportunity for questions from the investigating officer, and then from the panel;
• Either party will call identified witnesses in the course of presenting their respective cases, with the opportunity for the other parties to ask questions of those witnesses; and
• Both parties will have the opportunity to provide a closing statement in summary (at which point no new evidence can be introduced by either party), with the employee and/or their representative having the last word prior to the hearing being adjourned to allow the panel to consider their decision.

Consider the setting and have appropriate breaks if necessary.

4 When to Intervene?

• You need to ensure that all the relevant evidence is heard.
• You may need to intervene if you feel that relevant questions have not been asked.
• You should intervene where it is considered that statements made by either party are irrelevant or unsubstantiated. They should be asked to explain why the statement is relevant or provide evidence to substantiate it. Where such explanation/evidence is not satisfactorily provided, it should be confirmed to all in attendance that it will not be considered when determining the outcome of the hearing.
• You should intervene if the conduct of either party during the hearing is inappropriate.

5 What must you Establish?

• The facts as you find them.
• You should form a reasonable belief as to whether the allegations are substantiated. It is not necessary for the employer to have conclusive proof of the employee's misconduct - only a genuine and reasonable belief.
• This must be on the basis that you are satisfied that a thorough investigation was undertaken and you have sufficient evidence to reach a conclusion.

6 What must you Ensure?

That there has been a fair hearing - i.e.:

• Both parties have had reasonable advance opportunity to see the case to which they are responding;
• Both parties have had the opportunity to present their case;
• Both parties have had the opportunity to ask questions of the other's case; and
• Both parties have had the opportunity to sum up, at which point they cannot introduce any new material.

7 What to do if there are Facts/Witnesses Missing

• Seek to agree with the parties how you are going to deal with the situation (i.e. a short recess to consider information, to call a witness, or to determine if the facts/witnesses are fundamental to proceeding).
• If another witness is to be called, agree who will organise this.
• As the hearing forms a fundamental part of the overall process, you should ensure that you have sufficient information on which to make a decision.

8 What is your Role Once you have Established all the Facts?

• Determine whether, having ensured that there has been a reasonable investigation, and following full and thorough consideration of the evidence presented at the hearing, a reasonable belief can be formed as to whether or not some or all of the allegations are substantiated.
• Where such a reasonable belief exists, and should you decide that there should be a disciplinary sanction, consider what is appropriate in terms of the policy, the employee's role, and fairness and consistency of application.
• Abide by your policy.
• Consider if the conduct amounts to gross misconduct - this occurs in the case of acts which are so serious in themselves or have such serious consequences that the relationship of trust and confidence which is needed between the employer and employee has been damaged irreparably.
• A decision about the above involves more than just seeing if the type of conduct falls within the list of examples of possible misconduct. Therefore you should seek the advice of HR.

9 When to Hear About any Mitigating Factors?

• Where conduct has been admitted, you should consider all factors put before you which are relevant as to why the conduct has taken place.
• You should ask about mitigating factors, if they have not otherwise been put before you.
• Mitigating factors may include previous work record, work pressure, health, domestic circumstances, dependency issues or team dynamics.