NHS 'Once for Scotland' workforce policies: consultation on core policies

4. Conduct

4.1 Aim
4.1.1 To provide a process to ensure that concerns about standards of conduct, inappropriate behaviour or wilful misconduct are managed in a fair, consistent and timely manner.

4.2 Scope
4.2.1 This policy applies to all employees and workers such as bank, agency and sessional workers.

4.2.2 It relates to any type of behaviour or conduct that falls below the standard required by the employer, or is in breach of organisational policy. <Link to Guide to expected standards of behaviour >

4.2.3 Concerns relating to regulatory standards can only be determined by the relevant regulator <Link to Guide to Referral to External Agencies>. The employer may be unable to determine the outcome of a conduct process in advance of the regulator concluding the referral. Where the concern applies to both the regulatory body and the contract of employment, the employer may determine an outcome based on the contract of employment.

4.3 Definitions
4.3.1 Final Written Warning – a conduct sanction where there are existing conduct warnings in place and there has been a further breach of the policy.

4.3.2 First and Final Written Warning – a conduct sanction where the matter is so serious that the actions have had or are liable to have a serious or harmful impact on the organisation and there are no current conduct warnings in place.

4.3.3 Gross Misconduct – either deliberate wrongdoing or gross negligence by the employee which is so serious that it fundamentally undermines the employment relationship. Gross misconduct entitles the employer to dismiss the employee without notice (known as a summary dismissal). <Link to Guide to expected standards of behaviour>

4.3.4 Misconduct – unacceptable or improper behaviour, which can include an employee acting in an intentional or premeditated manner. <Link to Guide to expected standards of behaviour>

4.4 Roles and Responsibilities
4.4.1 Line Manager

• Communicate with the employees for whom they are responsible and make them aware of the standards of conduct required.
• Assess the seriousness of the conduct issue and determine whether the matter can be addressed under early resolution.
• Ensure that good standards of conduct and special effort by individuals and teams is acknowledged, encouraged and reinforced.
• Keep employees fully informed on progress relating to the conduct process.

4.4.2 Employee

• Be aware of the standards of conduct expected of them, and discuss with their line manager if unclear.
• Adhere to the expected standards of conduct.
• Actively participate in the process in an attempt to address the issue without delay.
• 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.

4.4.3 Anyone involved in the process is required to maintain confidentiality throughout the process.

4.4.4 There are a range of standard expectations on all parties and on HR, Trade Union representatives and Occupational Health which underpin all policies <Link to standard roles and responsibilities>.

4.5 Procedure
4.5.1.1 The route for conduct is shown in flowchart <insert link to flowchart> and outlines the procedure through both the Early Resolution and Formal Stages.

4.5.1.2 The manager is expected to take action in a prompt and timely manner when alleged misconduct is initially raised.

4.5.2 Early Resolution
4.5.2.1 Managers should assess whether there are ways of addressing the alleged misconduct in a more supportive way prior to progressing to formal procedure.

4.5.3 Initial Meeting
4.5.3.1 The aim of the initial meeting is to provide a supportive environment for employees which seeks to achieve continuous improvement.

4.5.3.2 The manager should have a two-way open and honest discussion with the employee which may determine any underlying issue(s) and identify potential solutions.

4.5.3.3 Both managers and employees are responsible for ensuring that such discussions take place promptly when issues arise and that they are managed confidentially.

4.5.3.4 The timescales for any follow up/ review meetings will be by agreement by both parties.

4.5.4 Review Meeting(s)
4.5.4.1 The follow up/review meeting(s) will involve the manager meeting with the employee as required, providing guidance on what is unacceptable, reinforcing what is acceptable and setting targets and timescales for improvement. The outcome of these meetings should be documented and a copy kept by both parties, in order to ensure clarity of expectations and commitments.

4.5.4.2 At the end of the agreed timescales, where the required improvement has been met, the manager will confirm that no further action will be taken. Where the required improvement(s) are not met, the manager will advise the employee that the formal procedure will be initiated.

4.5.4.3 Prior to any formal conduct process starting, a full and thorough investigation must be carried out in a timely manner to establish the facts of the case. <Link to Workforce Policy Investigation Process>

4.5.4.4 The outcome of these meeting(s) must be confirmed by the manager in writing to the employee within 7 calendar days, <Link to standard letter>.

4.5.5 Suspension
<Link to Guide to Suspension>

4.5.5.1 The use of suspension is not in itself disciplinary action but does form part of this policy. Careful consideration needs to be given to appropriate circumstances for its use in situations where the allegation or employee poses an unmanageable risk to clinical, financial or staff governance, or a risk to self, others, patients or the organisation. In all cases suspension should be deemed a last resort. Consideration will 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.

4.5.5.2 Suspension during investigations and formal processes 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, whilst the terms of the suspension will remain in place, the employee will receive occupational sick pay (according to their entitlement) during the sickness absence period.

4.5.5.3 Where workers are removed from duty under this policy they will be entitled to reasonable payment for any pre-arranged shifts / work but will receive no further payment for the duration of the investigation / conduct process.

4.5.5.3 The manager will maintain regular contact with the employee during suspension to offer support and keep the employee advised of progress with the investigation. Where suspension is extended this will be confirmed in writing.

4.5.6 Formal Approach
4.5.6.1 Where early resolution has not been successful, or in more serious cases, a formal approach will be required.

4.5.7 Conduct Hearing
< Link to Guide Conduct Hearings>

4.5.7.1 Once an investigation has been concluded and it is determined that the matter should be referred to a conduct hearing, written notification will be sent to the employee within 7 calendar days of the manager receiving the final investigation report.

4.5.7.2 The conduct hearing will comprise of a Chair, according to the scheme of delegation, and two other panel members one of whom will be an HR representative. In matters of technical/clinical misconduct it may be necessary to have a relevant advisor as one of the three panel members. To ensure impartiality, panel members, including the Chair, must have had no prior involvement in the case.

4.5.7.3 Persons in attendance may include:-

• The employee.
• Accredited Trade Union Representative and/or work colleague not acting in a legal capacity.
• The investigating officer.
• HR support to the investigating officer.
• Any witnesses called by either party who will have the right to be accompanied. Witnesses will only be present when giving their own evidence.

4.5.8 Process
4.5.8.1 The nominated Chair will be responsible for identifying the membership of the conduct hearing panel.

4.5.8.2 The Chair will also be responsible for ensuring that the panel, employee and their representative (if known) are advised in writing of the arrangements, and provided with the investigation report, no later than 14 calendar days prior to the hearing.

4.5.8.3 Should the employee wish to provide a written statement of case, this should be submitted no later than 7 calendar days before the hearing and will be shared with all other parties.

4.5.8.4 It is the responsibility of any party calling witnesses to inform them of the arrangements for the hearing.

4.5.9 Outcome
4.5.9.1 Following the hearing, the panel will adjourn to consider the case.

4.5.9.2 There are three potential outcomes:-

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

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

• First Written Warning – 6 months.
• Final Written Warning – 12 months.
• First and Final Written Warning – 12 months.
• Alternatives to Dismissal.
• Dismissal.

4.5.9.4 The sanction applied by the conduct panel should take into account the seriousness of the allegations against the employee, the evidence presented and any mitigation which is offered.

4.5.9.5 Previously issued warnings which have expired must be disregarded. However, consideration may be given to circumstances where the background to such warnings demonstrates a repeated pattern of behaviour taking account the time that has lapsed.

4.5.9.6 Where the outcome of the conduct hearing is such that dismissal would be an appropriate action, it may be that because of mitigating circumstances, some form of conduct action other than dismissal may be deemed appropriate. Any such alternatives should be based on the general principles of equity and consistency, and will be in conjunction with an appropriate level of warning.

4.5.9.7 Alternatives to dismissal may include:-

• A period of re-training.
• A permanent or temporary demotion (protection of earnings will not apply in such cases).
• Redeployment/relocation to another suitable post/location.
• A warning with an extended timeframe.

4.5.9.8 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.

4.5.9.9 Dismissal as a result of repeated misconduct will be with notice. In the case of summary dismissal i.e. on grounds of gross misconduct there is no entitlement to notice.

4.5.9.10 In misconduct cases involving Workers <link to scope definition of Worker>, if the behaviours / actions are considered so serious that continued engagement with the organisation is not appropriate the individual will be offered no further shifts / work.

4.5.9.11 All disciplinary hearing outcomes will be confirmed in writing to the employee and their representative within 7 calendar days following the hearing.

4.5.9.12 Outcome letters should be copied to the employee's manager to ensure they are aware of the outcome and any matters that may need to be taken forward or implemented.

4.5.9.13 If the conduct issue(s) relates to a regulated professional it may be necessary to refer them to a regulatory body. Employees in regulated work will also be referred to Disclosure Scotland where they have been removed from regulated work. Employees should be informed in advance that a referral will be made. In the case of Workers appropriate referrals will also be made.

4.5.10 Appeal Hearing Process <Link to Guide to Appeal Hearings>
4.5.10.1 All employees have a right to appeal against any decision taken during the formal process. When exercising this right the employee must identify the reason for their appeal.

4.5.10.2 The appeal panel Chair, in accordance with the scheme of delegation <link to Guide to Appeal Hearings>, will be responsible for identifying membership of the appeal hearing panel.

4.5.10.3 The Chair will also be responsible for ensuring that the panel, employee and their representative are advised in writing of the arrangements, no later than 14 calendar days prior to the hearing <Link to standard letter>.

4.5.10.4 The employee and the Chair of the conduct hearing are required to provide a written statement of their case. These should be submitted no later than 7 calendar days before the hearing and will be shared with all other parties.

4.5.10.5 It is the responsibility of any party calling witnesses to inform them of the arrangements for the hearing.

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

4.5.11 Outcome
4.5.11.1 Following the hearing the Chair will write with the outcome of the appeal hearing to the employee and their representative. This should include the rationale behind any decisions taken in response to the employee's grounds for appeal. The letter will be issued within 7 calendar days following the appeal hearing <Link to standard letter>.

4.5.11.2 The outcome of the appeal will be final.

4.5.12 Criminal Offences/Police Involvement
4.5.12.1 Disciplinary action should not be taken automatically against an employee because they have been charged with or convicted of a criminal offence committed outwith the course of employment. Each situation should be considered individually on the basis of whether the employee's conduct warrants action because of its employment implications or because it is unacceptable to other employees. The manager should also consider information regarding any previous convictions. In a situation where the employee refuses to co-operate s/he should be advised in writing that unless further information is provided a decision will be taken, up to and including dismissal, on the basis of the information available. In some cases the nature of the offence may have no bearing on the employee's employment but the employee may not be available for work because they are in custody or on remand. In these circumstances, the employer will need to decide whether, considering the needs of the service, the employee's job can be kept open. <Link to Guidance on Police Involvement><Link to Guidance on Counter Fraud Service Involvement>

4.5.13 Grievances/Bullying and Harassment Complaints
4.5.13.1 Where an employee raises a grievance or bullying and harassment complaint during a conduct process, the process may be temporarily suspended in order to deal with the grievance/complaint. Where the grievance/complaint and conduct case are related, it may be appropriate to deal with both issues concurrently.

4.6 Supporting Documentation

• Flowcharts – there will be two/three flowcharts which show visually the key steps in the process at each stage when concerns have been raised about conduct.
• Standard letters – standard letters will be developed to ensure all the required content is included in letters for each stage of the process including suspension confirmation and invite/ review/outcome and appeal letters.
• Guide to expected standards of behaviour – this document will outline the types of behaviour or actions that might be deemed misconduct and gross misconduct (breaches which might lead to dismissal).
• Guide to Suspension – this document will outline the situations in which suspension might be appropriate and alternatives that should be considered to assist in assessing the risk. A checklist will be provided to ensure that the key steps are taken when suspension is being considered.
• Guide to Hearings – this document will outline the procedure which will apply during the hearing, the expectations of the parties and the key individuals who will be involved.
• Guide for Appeal Hearings – this document will outline the procedure which will apply during the hearing, the expectations of the parties and the key individuals who will be involved.
• Guide to Supportive and/or difficult conversations – guidance for managers and staff in how to have more honest conversations with a view to providing support and improvement.

4.7 Consultation Questions

Conduct: Section 4
(6 Questions)

Question 1:
Is the policy easy to read and clear to all parties?

Yes
No

Question 2:
Is the policy fit for purpose?

Yes
No

Question 3:
Does the language reflect our vision for policies to be user-friendly and supportive reflecting NHSScotland core values?

Yes
No

Question 4:
Are there any additions required to the supporting documents listed?

Yes
No

If yes, please specify

Question 5:
Does 'early resolution' fit with the conduct policy?

Yes
No

Please indicate the reason for your response

Question 6:
Please provide any other comments you have in relation to the policy.