Employee conduct: NHSScotland PIN policy

Appendix 1

Model Management of Employee Conduct Policy

1 Policy Statement

It is the aim of [name of organisation] to ensure that all employees are treated in a fair and equitable manner. Employees are expected to adhere to acceptable standards of conduct in the course of their employment. Where such standards are not met, a formal process should only be followed where there is no other alternative. In all cases, the primary objective must be to assist and support the employee to improve to the required standard. Dismissal on grounds of conduct should only be considered as a last resort.

Where concerns arise over potential misconduct, action is required in the interests of both [name of organisation] and the employee. A failure to deal with it may adversely affect colleagues and standards of patient care, and as a result other staff may become disillusioned and dissatisfied. Some may even look elsewhere for employment. In this way, the efficiency and the quality of the service can quickly deteriorate.

This policy has been developed in partnership with trade unions/professional organisations. It reflects the best practice identified in, and meets the minimum standards set out in, the Management of Employee Conduct Partnership Information Network (PIN) Policy. The policy also reflects relevant current employment legislation.

2 Scope

This policy applies to all directly employed staff, including bank/temporary staff and [name of organisation] staff on secondment. It applies to all employed medical and dental staff in cases of personal misconduct. However, it does not apply to matters concerning the professional conduct of medical and dental staff.

In the case of conduct issues relating to staff groups who require to be professionally registered, [name of organisation] has in place a mechanism to ensure that relevant statutory regulatory bodies are informed, as appropriate, where such issues arise [please state]. Employees must be advised in advance of any such referral being made. Decisions in relation to ongoing professional registration as a result of such issues will be for the relevant statutory regulatory body to determine. However, this policy will apply in relation to those conduct issues in so far as they relate to an individual's employment within [name of organisation].

3 Aims of Policy

This policy will ensure that conduct issues are dealt with in a fair and consistent manner. The policy provides:

• Assistance to employees to improve wherever possible when such issues arise;
• Firm but fair and consistent means of dealing with conduct issues; and
• A means of resolving conduct issues where improvement is unachievable.

In order to achieve these aims, the following principles and values apply:

• This policy will be appropriately communicated to all employees and will be made readily accessible to them;
• All employees will be made aware of acceptable standards of conduct, and of the need to adhere to such standards;
• Good standards of conduct, and special effort by individuals and teams, will be acknowledged, encouraged and reinforced;
• Issues of conduct will be addressed at the earliest opportunity and (except in more serious cases) on an informal basis in the first instance before resorting to the formal procedure;
• Issues of conduct will be addressed fairly, consistently and confidentially, irrespective of the position/level within [name of organisation] of employees with whom such matters arise;
• Issues of conduct will be addressed in a supportive manner, with every opportunity to improve being offered. Termination of employment on grounds of conduct will only ever be as a last resort;
• Joint training on the policy will be provided for managers and trade union/professional organisation representatives using a partnership model, in order to ensure that relevant staff are sufficiently skilled and competent in implementing the process;
• Specialist HR advice will be available to managers involved in implementing the process;
• At all stages of the formal procedure, an employee will be entitled to be accompanied by a trade union/professional organisation representative or work colleague; and
• This policy will be subject to ongoing monitoring to ensure that it is being fairly and consistently applied and that the stated principles and values are being met. The policy will be subject to regular review, in partnership, to ensure that any new standards and/or structures are incorporated when necessary and that it remains fit for purpose.

4 Roles & Responsibilities

Employees will:

• Ensure that they are aware of the standards of conduct expected of them, and that they seek further guidance if unclear;
• Adhere to the expected standards of conduct;
• Work with managers on any agreed supported improvement plan;
• Comply with any support/monitoring mechanisms put in place; and
• Raise concerns with the appropriate manager where they perceive others not to be adhering to expected standards of conduct.

Managers will:

• Ensure that all employees for whom they are responsible are made aware of the standards of conduct required;
• Ensure that such employees are made aware of and have access to this policy;
• Ensure that good standards of conduct, and special effort by individuals and teams, is acknowledged, encouraged and reinforced;
• Ensure that they are fully aware of and comply with the provisions of this policy, identifying and dealing with issues which arise in a fair, consistent, confidential, timely and supportive manner; and
• Ensure that they seek HR advice where necessary and appropriate when dealing with conduct issues.

Trade union/professional organisation representatives will:

• Work in partnership with [name of organisation] to develop joint training as part of the implementation of this policy and participate in such joint training;
• Work in partnership with [name of organisation] to raise awareness of the benefits of, and the approach to, the management of employee conduct as outlined in this policy;
• Support their members, including providing representation throughout the formal stages of the procedure, ensuring that their members are aware of their rights and responsibilities under this and other relevant policies; and
• Participate in partnership monitoring, evaluation and review of this policy.

Human Resources will:

• Develop and deliver, in partnership, training on this policy for managers and trade union/professional organisation representatives;
• Advise managers on the correct implementation of this policy; and
• Support employees by providing advice on this policy.

Occupational Health will:

• Provide timely and comprehensive guidance to managers and support to employees following any referral which requires to be made in the course of managing conduct issues.

5 Disciplinary Rules

Disciplinary rules are established to promote fairness in the treatment of employees, and order in the conduct of employee relations throughout [name of organisation]. They also set standards, and enable employees to understand what is expected of them - and the consequences of failure to observe those standards.

[Name of organisation] has agreed rules necessary for the maintenance of satisfactory standards of conduct which are set out at [state]. In addition to the above, all those who are appointed as members to the board of [name of organisation] must abide by the Standards of Conduct, Accountability and Openness of NHSScotland (2001). All employees within [name of organisation], as well as board members, must abide by the principles of these standards.

Any type of behaviour or conduct at work which falls below the standard required by [name of organisation] or is in breach of [name of organisation] policy may be deemed to be a form of misconduct. Where such behaviour or conduct is so serious in itself, or has such serious consequences that the relationship of trust and confidence which is needed between [name of organisation] and an employee has been damaged irreparably, this may be deemed to be a form of gross misconduct.

6 Procedure

6.1 Informal Approach

It is recommended that, prior to invoking the formal procedure, managers need to reflect on whether there are ways of dealing with alleged misconduct in a more supportive way.

The emphasis should be on a two-way, open and honest discussion, with a view to determining the underlying issues and identifying potential remedies, resulting in a series of commitments on the part of the employee and their manager, with the aim of providing a supportive working environment for employees which seeks to achieve continuous improvement rather than punish mistakes. Managers are responsible for ensuring that such discussions take place promptly where such issues arise, and that they are managed confidentially.

If the issues continue, the manager will meet regularly with the employee, providing guidance on what is unacceptable, reinforcing what is acceptable and setting targets and timescales for improvement. These meetings should be recorded and a copy kept by both parties in accordance with standard record-keeping procedures, in order to ensure clarity of expectations and commitments.

Where the manager has followed the principles of fair and reasonable management, providing support to the employee and monitoring improvement over a reasonable time period, and where there is still insufficient improvement, the manager will advise the employee that the formal procedure may need to be invoked.

6.2 Formal Procedure

Where there has been inadequate improvement, despite having been given initial, informal guidance and support, or in more serious cases, a more formal approach will be required.

6.2.1 Right to Be Accompanied

Employees have a right to be accompanied by a trade union/professional organisation representative or a work colleague at any investigatory meeting or disciplinary (or appeal) hearing being held under this policy.

While there is no right to be accompanied at a meeting to confirm suspension, employees should (where practicable) be given reasonable notice to organise representation.

Specific to any resulting disciplinary (or appeal) hearing, the role of such a representative will be as follows:

• To prepare, present and sum up the employee's case on their behalf; and
• To provide further information after the employee's response or to respond on behalf of the employee to any views expressed, with a view to providing additional clarity to the case.
• The representative is not permitted to answer questions on the employee's behalf, with the employee being required to personally respond to any specific questions directly.

Where the employee is a trade union/professional organisation representative, no disciplinary action should be taken without discussion with a full time official of the appropriate organisation.

If the representative chosen by the employee is not available at the time proposed for any investigatory meeting or subsequent disciplinary (or appeal) hearing, the meeting/hearing must be postponed to an alternative time suggested by the employee, provided that such alternative time is reasonable and falls before the end of five working days after the original date proposed.

In the case of witnesses, they must be offered the opportunity to be supported by a trade union/professional organisation representative or work colleague at any investigatory interview or subsequent disciplinary (or appeal) hearing which they are asked to attend.

6.2.2 Suspension

The use of suspension is not a form of disciplinary action in its own right but does form part of this policy. Careful consideration needs to be given to appropriate circumstances for its use in situations where the allegation poses a risk to clinical, financial or staff governance, and in all cases consideration should be given to alternatives to suspension, including temporarily moving the employee to another work area, or considering other duties, where such an alternative removes the identified risk.

Suspension related to disciplinary investigations will be on full pay and for as short a time as possible. However, where an individual is suspended and subsequently reports as being sick, while the suspension will remain in place, the employee will receive occupational sick pay (according to their entitlement) during the sickness absence period.

6.2.3 Undertaking Investigations

As soon as an employee's manager is aware of alleged misconduct, they should contact the HR department to discuss the matter. This is to ensure that all appropriate informal steps have been taken and to provide guidance on the fair application of this policy.

Prior to any disciplinary process a full and thorough investigation must be carried out timeously in order to establish the facts of the case.

The manager will inform the employee of the alleged misconduct and advise that there will be an investigation.

The manager will be responsible for the investigation and will undertake it personally as the investigating officer (except where they are implicated or involved in any aspect of the allegation, in which case they will nominate a representative to act as investigating officer). The investigating officer may be supported by a representative of HR in undertaking the investigation (and in any formal hearings which subsequently result).

The investigating officer will seek to compile sufficient information and evidence for a management decision to be reached on whether a disciplinary hearing is necessary (i.e. sufficient supporting evidence regarding the allegations).

The investigation will involve interviewing the individual who is the subject of the investigation and any potential witnesses, and the gathering of any other relevant material.

The investigating officer will write to individuals no later than [state] days in advance of the investigatory interview, setting out:

• The date, time and location of the meeting;
• Who will be attending the meeting;
• The purpose of the meeting; and
• The right to be accompanied.

They must also ensure that all those interviewed have been provided with a copy of the local policy in advance of the meeting.

All those interviewed should be asked, following the meeting, to provide a written statement (which must be signed and dated) and be given the opportunity to consult with their representative regarding the content of this statement. Individuals may alternatively choose to sign and date the notes of the meeting produced by the investigating officer, where they agree that these are an accurate reflection of the discussion.

All those interviewed should be advised that meeting notes and any written statements may require to be shared with the individual under investigation and their representative, and other witnesses, as appropriate.

In the case of witnesses, they should additionally be advised that such meeting notes and written statements may be used as evidence should the issue proceed to a disciplinary hearing (or subsequent appeal) and that they may be asked, by either party, to attend. Where the evidence of a witness is to be used at a subsequent hearing, they must be available to attend (although this could be waived following agreement of all parties), except in cases where such witnesses are not employed by [name of organisation] and are not prepared, or are unable, to attend (in which case all effort must be made to obtain a written statement or signed, dated confirmation of any investigatory meeting notes as an accurate reflection of the discussion).

At the conclusion of the investigation, the investigating officer will make a recommendation as to whether the matter requires to be progressed. In some cases, following investigation, it might be determined that, while the matter does not require to be progressed to a formal disciplinary hearing, the findings of the investigation suggest that sufficient concerns remain which require informal action to be undertaken.

The employee who is the subject of the case must be advised of any recommendation to progress matters to a disciplinary hearing prior to such recommendation being made.

6.2.4 Attendance at Disciplinary and Appeal Hearings

Disciplinary hearings (including appeals) will comprise a Chair (according to the scheme of delegation), and two other panel members (one of whom will normally be a member of the HR department). To ensure impartiality, panel members, including the Chair, must have had no prior involvement in the case. In addition to the employee and their representative, the investigating officer (or disciplinary panel Chair in the case of appeals) will also be in attendance (who may themselves be supported by a member of the HR department). Any witnesses called, by either party, to a disciplinary or appeal hearing will additionally have the right to be accompanied.

6.2.5 Disciplinary Hearing

According to the scheme of delegation, the Chair will be notified of the need to convene a disciplinary hearing. They will be responsible for identifying membership of the disciplinary hearing panel.

The Chair will also be responsible for ensuring that the employee and their representative are advised in writing, no later than [state] days prior to the hearing, of the following:

• The date, time and location of the hearing;
• The allegations to be considered;
• The potential outcomes. Where the potential outcome may be dismissal (either summary dismissal due to the severity of the allegations or dismissal with notice, where the allegations are less serious, but there is a relevant live final/first and final written warning on file) this must be stated;
• Who will be attending the hearing;
• The right to be accompanied;
• Arrangements for the exchange of cases; and
• A copy of the policy.

Thereafter, and [state] days in advance of the hearing, the investigatory report will be shared with the panel and Chair, and with the employee and their representative. Similarly, should the employee wish to provide a written statement in support of their case, this should be submitted within [state] days following receipt of the investigatory report, and will be shared with the panel and Chair and those presenting the investigatory report. Such cases should include details of any witnesses which either party is calling to the hearing. It is the responsibility of the party calling the witness to inform them of the arrangements for the hearing.

6.2.6 Disciplinary Hearing Outcome

Following the hearing, the panel will adjourn to consider the case.

There are three potential outcomes:

• No case to answer;
• Informal action required; or
• Formal disciplinary sanction required.

The formal disciplinary sanctions available to the panel are as follows:

• First Written Warning - 6 months;
• Final/First and Final Written Warning - 12 months;
• Alternatives to Dismissal; or
• Dismissal (with notice, as a result of repeated misconduct, or without notice in the case of summary dismissal on grounds of gross misconduct).

The sanction applied by the disciplinary panel should take into account the seriousness of the allegations against the employee and any mitigation which is offered.

Previously issued warnings must be disregarded for disciplinary purposes after their expiry. However, consideration may be given to the circumstances which resulted in such warnings being issued where subsequent allegations of misconduct arise, where this can be shown to demonstrate a repeated pattern (although any such reference must be reasonable and appropriate, considering the severity of the earlier matter and the period of time which has since elapsed).

Where the outcome of the disciplinary hearing is such that dismissal would be an appropriate action, it may be that, following clarity around mitigating circumstances, some form of disciplinary action other than dismissal may be deemed appropriate. Any such alternatives should be based on the general principles of equity and consistency and may be subject to review, and will normally be in conjunction with an appropriate level of warning. Alternatives to dismissal may include a permanent or temporary demotion (protection of earnings would not apply in such cases), relocation to another suitable post/location or a period of re-training. Movement into another post (including demotion) will only be an option where it is identified that such a post exists. A post will not be created to facilitate such a move.

Some acts, termed 'gross misconduct', are so serious in themselves or have such serious consequences that the relationship of trust and confidence which is needed between [name of organisation] and the employee is damaged irreparably, and therefore call for summary dismissal without notice for a first offence.

All disciplinary hearing outcomes must be confirmed in writing to the employee and their representative within [state] days following the hearing. The letter should confirm the following:

• Details of who was present at the disciplinary hearing;
• The allegations considered;
• The hearing outcome (including any disciplinary sanctions issued) and the reason such a decision was taken;
• The date on which any issued warning will expire or, in the case of dismissal, the date on which employment will terminate (recognising, except in the case of dismissal on grounds of gross misconduct, the employee's contractual notice);
• In the case of warnings, the potential consequences of further misconduct prior to expiry of the warning (particularly the potential for consideration of dismissal prior to expiry of a final/first and final written warning);
• In the case of dismissal, any necessary administrative or financial arrangements; and
• Details of the right of appeal.

6.2.7 Appeals

All employees have a right to appeal against any decision taken.

Details of the right of appeal must be clearly set out within the letter confirming the outcome of a disciplinary hearing, detailing to whom such an appeal must be made and the timescale within which it must be lodged (i.e. no later than [state] days following receipt of the letter confirming the disciplinary hearing outcome).

The identified Chair, in accordance with the scheme of delegation, will be responsible for identifying membership of the appeal hearing panel.

The Chair will also be responsible for ensuring that the employee and their representative are advised in writing, no later than [state] days prior to the hearing, of the following:

• The date, time and location of the hearing;
• Who will be attending the hearing;
• The right to be accompanied;
• Arrangements for the exchange of cases; and
• A copy of the policy.

Thereafter, and [state] days in advance of the hearing, the employee's appeal case will be shared with the appeal panel and Chair, and with the manager who chaired the earlier hearing and issued the disciplinary sanction against which the employee is appealing. Similarly, [state] days following receipt of the employee's appeal case, the written case produced by the manager who chaired the earlier hearing will be shared with the appeal panel and Chair and the employee and their representative. Such cases will include details of any witnesses which either party is calling to the appeal hearing. It is the responsibility of the party calling the witness to inform them of the arrangements for the appeal hearing.

An appeal cannot result in any increase in penalty as this may deter individuals from appealing.

Following the hearing the Chair will be responsible for ensuring that the employee and their representative are advised in writing of the outcome of the appeal hearing. This should include the rationale behind any decisions taken in response to the employee's grounds for appeal. Such a letter must be issued within [state] days following the appeal hearing. The outcome of the appeal will be final, with no further internal right of recourse.

6.2.8 Grievances/Dignity at Work Complaints

Where an employee raises a grievance or dignity at work complaint during a disciplinary process, the disciplinary process may be temporarily suspended in order to deal with the grievance/complaint. Where the grievance/complaint and disciplinary case are related, however, it may equally be appropriate to deal with both issues concurrently.

6.2.9 Failure to engage

There may be occasions when an employee is repeatedly unable or unwilling to attend a meeting/hearing. This may be for various reasons, including illness or a refusal to face up to the issue. In such cases, consideration will require to be given to all the facts before coming to a reasonable decision on how to proceed. Considerations will include:

• [State any rules the organisation has for dealing with failure to attend meetings/hearings];
• The seriousness of the disciplinary issue under consideration;
• The employee's disciplinary record (including current warnings), general work record, work experience, position and length of service;
• Medical opinion on whether the employee is fit to attend the meeting/hearing;
• How similar cases in the past have been dealt with; and
• Whether, therefore, it is considered fair and reasonable in the particular circumstances to proceed in the absence of the employee.

Where an employee continues to be unavailable to attend a meeting/hearing, it may be concluded that a decision in their absence will need to be made based on the evidence available. The employee must be informed where this is to be the case.

7 Debrief & Reintegration

Regardless of whether or not a matter progresses to a disciplinary hearing, it may be appropriate to undertake a debrief in order to review the case, any lessons learned and agree any further general organisational improvement actions identified during the investigation/hearing process. Involvement in such a discussion will be determined on a case-by-case basis.

In addition to the duty of care, referred to below, it is also critical to ensure that, where the outcome does not involve dismissal, the employee is supported in being reintegrated back into their job role and within their team (or within any new job role/team, into which they are placed as a hearing outcome). Managers should liaise with HR and staff-side representatives to discuss measures which might help to support reintegration.

8 Duty of Care

In line with current health and safety legislation, [name of organisation] has a duty of care to its employees. In the context of this policy, this means that [name of organisation] needs to be mindful of the potential risks to health and safety associated with individuals who are involved (primarily the individual who is the subject of the case and any witnesses).

Where it is suspected that an individual's health and safety may be at risk, at any stage of the procedure, contact should be made with Occupational Heath as a matter of priority. Trade union/professional organisation representatives, where they perceive any potential concerns in this regard should advise their member to seek Occupational Health support, as well as advising management accordingly.

Particular consideration needs to be given in circumstances where the decision of the disciplinary panel is to dismiss an employee (or where an appeal hearing panel has upheld a decision to dismiss). Where concerns around the individual's health and safety exist, it may be helpful to arrange for the individual to meet with Occupational Health following verbal confirmation of the outcome or, where the outcome is to be conveyed solely in writing, invite the employee to attend to receive the written confirmation, with Occupational Health on-hand for immediate support.

9 Retention of Records

All records pertaining to management of an employee under this policy must be held in accordance with both the Data Protection Act 1998 and the Scottish Government Records Management: NHS Code of Practice (Scotland) Version 2. 1 (January 2012).

10 Review

This policy will be subject to ongoing monitoring and evaluation to ensure that it is being implemented fairly, consistently, effectively and in line with the policy's stated principles and values. The policy will be subject to regular review, in partnership, to ensure that any new standards and/or structures are incorporated when necessary and that it remains fit for purpose.