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

7. Workforce Policy Investigation Process

7.1 Aim
7.1.1 To provide a clear process to undertake full and thorough investigations in a timely manner to establish facts.

7.1.2 To support informed and transparent decision-making for cases being considered under NHSScotland Workforce Policies.

7.2 Scope
7.2.1 This policy applies to all employees and workers such as bank, agency and sessional workers involved in investigations. In terms of medical and dental staff it does not apply to investigations relating to professional conduct or competence.

7.2.2 It applies where an investigation is required under NHS Scotland employers' Conduct, Bullying and Harassment and Grievance Policies and the Capability Policy where it is not clear if conduct or capability is the appropriate route.

7.3 Definitions
7.3.1 Investigation Team – the individuals who have been commissioned to undertake the investigation.

7.3.2 Manager – the manager will normally be the direct line manager of the employee.

7.3.3 Physical evidence – this includes items such as case notes, log books, invoices or computer equipment.

7.4 Roles and Responsibilities
7.4.1 Manager

• Advise employee at the earliest opportunity when they are subject to investigation;
• Be approachable and take time to make themselves available for those who they manage;
• Keep employees fully informed on progress relating to the investigation.
• Feedback the outcome of the investigation to the employee and offer appropriate support.

7.4.2 Employee

• Actively participate in the process in an attempt to address the issue without delay;
• Be open and honest with the investigation team to ensure facts are established;
• Consider the position of any complainants and witnesses as well as their own.

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

7.4.4 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>.

7.5 Procedure
7.5.1 The procedure for undertaking workforce policy investigations is shown in the flowchart <Link to flowchart>.

7.5.2 Other resources are also available to support employees participating in investigations <Link to Guide for Employees>, witnesses <Link to Guide for witnesses > and what support is available to assist <Link to standard support section>.

7.5.3 Pre-Investigation Stage
7.5.3.1 When the manager identifies a concern or incident they must take immediate action to ensure safety of persons, the environment and physical evidence.

7.5.3.2 The manager should assess the risk to determine whether alteration to duties or suspension is required <Link to suspension guidance in the conduct policy>. They should also consider the requirement for referral to external agencies such as the Counter Fraud Service, Regulatory Bodies, Child Protection or Adult Support and Protection networks, Disclosure Scotland etc <Link to referral to other agencies guidance>.

7.5.3.3 The manager should meet with the employee to advise that a concern has been raised, an investigation is being arranged and offer support. Where it has been determined that alteration to duties or suspension is required this will be undertaken in line with the guidance contained in the conduct policy <Link to suspension guidance in the conduct policy>. The outcome of the meeting will be confirmed in writing within 7 calendar days and where possible this communication should advise who will be undertaking the investigation <Link to standard investigation initiation letter or confirmation of suspension letter>.

7.5.4 Initial Investigation Stage
7.5.4.1 The manager will inform witnesses that they may be required to participate in an investigation and will request statements <Link to Guide for Witnesses/statement template>.

7.5.4.2 An investigation team will be identified comprising an investigation manager and HR representative. In cases where there are clinical or technical issues out with the investigation manager's area of expertise, an appropriate professional or technical adviser should be appointed to the team. If the investigation relates to an employee in training, an educational/Deanery adviser should be considered.

7.5.4.3 In identifying the team to undertake the investigation, the manager should consider the complexity, nature and scale of the case. This will determine the level of training and skill required of the investigating manager and the time commitment to undertake the investigation in a timely manner <Link to guidance on expected training for complex or bullying & harassment cases>.

7.5.5 Investigation Planning
7.5.5.1 The investigation team will meet to formally plan the investigation <Link to investigation planning document>.

7.5.5.2 In Bullying and Harassment or Grievance investigations, the investigation manager will write formally to the complainant to confirm who the investigation team are and arrange a mutually agreeable date to meet <Link to standard notification letter>. At the same time they will write to the employee who is subject to the complaint to confirm they have been appointed to undertake the investigation and offer to meet with the individual to hear their initial response to the allegations making clear full allegations and information will not be available at this stage. On this basis, a further investigation meeting will be necessary. There is no requirement for the employee under investigation to participate in a meeting at this stage.

7.5.5.3 In cases where the outcome potentially falls within conduct or capability, the investigation manager will write to the individual under investigation to confirm who the investigation team are and arrange a mutually agreeable date to meet for an initial meeting regarding the allegations <Link to standard notification letter>. Following the meeting, the investigation manager will provide a provisional timescale for completion of the investigation dependent on the need for witness meetings and any further meeting with the employee to allow them to respond to the full documentation relating to the investigation.

7.5.5.4 The investigation manager will write formally to any witnesses to confirm who the investigation team are and arrange a mutually agreeable date to meet <Link to standard witness letter>.

7.5.6 Investigation
7.5.6.1 The investigation team will collate and consider relevant documentation including policies, procedures and protocols. Any patient and/or other confidential data to be used should be anonymised.

7.5.7 Witness investigation meetings should be held. Notes of the meetings should be prepared and sent to the witnesses for confirmation of the content.* Unless otherwise agreed due to leave, notes should be returned within 7 calendar days.** Notes not returned within this period will be deemed to be a correct record <Link to a standard covering letter for notes of meetings>.

7.5.8 A formal investigation meeting will be held with the employee under investigation. The employee will be written to outlining the allegations under investigation and will be provided with all documentation and statements which apply to the allegations. The correspondence will be issued at least 7 calendar days in advance of the meeting. Notes of the meeting should be prepared and sent to the employee for confirmation of the content.* New evidence or further explanation not given at the meeting cannot be added to the notes at this stage. Where the note cannot be agreed, the employee's version will be appended to the investigation team's record for any further process. Unless otherwise agreed due to leave, notes should be returned within 7 calendar days. ** Notes not returned within this period will be deemed to be a correct record <Link to a standard covering letter for notes of meetings>.

7.5.8.1 Following the investigation meetings, the investigation team will assess whether further witness meetings are required. If so, the further evidence will then be shared with the employee under investigation for comment. Where there is extensive additional information this will be in a reconvened investigation meeting.

* Meetings can be recorded to support the preparation of notes where all parties have agreed in advance.

** Notes should be signed or attached to the covering email where they have been returned electronically.

7.5.9 Conclusion of Investigation
7.5.10 The investigation team will meet to consider the evidence and prepare the investigation report for the manager <Link to investigation report template>. Consideration should be given to:-

• Conflicting evidence.
• Why the investigating manager has accepted a particular line of evidence.
• Reasons for the conclusion and recommendations<Link to Decision-making guidance>.

7.5.10.1 There are 3 potential outcomes following the investigation:-

• The allegation is not upheld.
• The evidence and/or nature of the complaint justifies learning outcomes which may fall within the NHSScotland Capability Policy.
• The evidence justifies referral to a formal panel.

7.5.10.2 The investigation report should be completed within 21 calendar days of the completion of the investigation. The investigation team should submit their report to the manager stating their recommendations for any further consideration under NHSScotland Workforce Policies. The manager will meet with the employee to confirm the outcome of the investigation, any further action to be taken under NHSScotland Workforce Policies and offering support. This feedback will be confirmed in writing within 7 calendar days and will reflect the requirements of the relevant policy:

• Bullying and Harassment< Link to bullying and harassment policy>
• Conduct< Link to conduct policy>.
• Capability< Link to capability policy>.
• Grievance< Link to grievance policy>.

7.6 Supporting Documentation

• Flowcharts – there will be a flowchart which shows visually the key steps in the process at each stage when concerns have been raised about attendance.
• Standard letters – standard letters will be developed to ensure all the required content is included in letters for each stage of the process including invite/ review/outcome and appeal letters.
• Guide for Managers – more detailed guidance to support managers through the process with good practice highlighted.
• Guide for Employees – more detailed guidance for staff to support them through the process of investigation.
• Guide for Witnesses – more detailed guidance for staff who are required to participate in an investigation as a witness.
• Guide for investigators – more detailed guidance for investigators reflecting ACAS guidance for workplace investigations and including interviewing skills for investigators, decision-making tools such as fair blame/just culture and levels of training to be undertaken.
• Guide to the referral to other agencies – guidance to support assessment of the need to referral to other agencies including regulatory bodies, CFS and Adult/Child protection agencies.
• Guidance to Counter Fraud Service Involvement – more detailed guidance on when referral to CFS is appropriate and the links between internal investigation and that undertaken by CFS.
• Guidance to Police Involvement – more detailed guidance on when referral to the Police is appropriate and the links between internal investigation and that undertaken by the Police.
• Guidance on investigation of complaints from vulnerable individuals – outline process of the things to consider when investigating complaints from vulnerable individuals.
• Information Sharing Protocol – guidance on what information is to be shared and with whom balancing natural justice and data protection requirements.
• Standard Investigation Report Template – a standardised approach to investigation reports to support transparency of decision-making.
• Scheme of Delegation principles – guidance on how to assess the appropriate members of panels under workforce policies.

7.7 Consultation Questions

Workforce Policy Investigation Process: Section 7
(7 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:
Are the stages in the process appropriate?

Yes
No

If no, please indicate the reasons for your response

Question 6:
Should the Investigation Team make the decision on what the next stage is following an investigation under this policy?

Yes
No

If no, please indicate who should make this decision

Question 7:
Please provide any other comments you have in relation to the policy.

7.8 General Comments

(3 Questions)

Question 1:
Collectively, do the refreshed policies provide single, standardised policies that are user-friendly and place staff and managers at the centre?

Yes
No

Question 2:
Do you think that the refreshed policies will assist in supporting the working lives of NHSScotland employees?

Yes
No

Question 3:
Please provide any other comments you have in relation to these policies.