Disciplinary procedure

1. Purpose and scope

1.1 RoS is committed to ensuring that its employees carry out their duties with integrity and in accordance with the Civil Service Code, (opens in new tab). The disciplinary policy and procedure outlines RoS’ approach to managing misconduct, including gross misconduct.

1.2 It aims to reinforce the expectation that all employees will maintain satisfactory standards of conduct throughout the course of their employment.

1.3 It also aims to provide a consistent, fair, and reasonable approach for managing misconduct, including gross misconduct.

1.4 The disciplinary policy and procedure apply to all employees at RoS.

1.5 This procedure should be read in conjunction with the accompanying disciplinary policy.

2. Guiding principles

2.1 The guiding principles for the disciplinary policy and procedure are set out in the accompanying disciplinary policy.

3. Informal management of minor misconduct

3.1 Managers should manage minor conduct issues informally in a timely manner through regular discussions and as part of their day-to-day line management responsibilities.

3.2 In all cases managers must establish the facts and consider whether there might be any underlying reasons for changes in the conduct of the employee. Managers should keep a file note to record discussions regarding informal management of minor misconduct.

3.3 Managers must also consider whether any training, coaching or support is required for the employee. The emphasis of the informal discussion should be on finding ways for the employee to improve or address the conduct issue and making sure the employee understands any improvements which require to be made, and the timescales involved (where applicable).

3.4 The People and Change team is available to assist managers with informal issues and must always be consulted where the formal procedure below is required.

4. Formal disciplinary procedure

4.1 In cases where minor misconduct is repeated or if allegations are of a more serious nature, it may be appropriate to instigate the formal disciplinary procedure.

4.2 The formal procedure must not be followed without first obtaining advice and support from the People and Change team. Where there is agreement with People and Change that the formal procedure is appropriate, a fact-finding investigation should take place.

5. Fact finding investigation

5.1 Prior to any formal disciplinary hearing being held, the facts must be clearly investigated in a fact-finding investigation.

5.2 Purpose of a fact-finding investigation

5.2.1 RoS has a duty to investigate all allegations that are made in a fair and reasonable way. The purpose of a fact-finding investigation is to establish a fair and balanced view of the facts and determine whether there is a case to answer. The nature and extent of the investigation will depend on the conduct complained of.

5.2.2 Depending on the nature of the allegation, an investigation may also involve a review of records, paperwork, systems and may include interviewing potential witnesses.

5.3 Suspension during a fact-finding investigation

5.3.1 It may be appropriate to suspend an employee whilst an investigation takes place.

5.3.2 Suspension will be at full pay and employees must be available to return to work when requested. The period of suspension will be reviewed on an ongoing basis and will be for no longer than is reasonable to allow the allegation to be fully investigated. Should it be found during the investigation that there is a case to answer, the employee will be invited to a disciplinary hearing.

5.3.3 While suspended from work, any booked holidays or dates you are unavailable to work due to other commitments should be taken and recorded in the HR system as normal, however at all other times, colleagues must be available for work.

5.4 Appointment of an investigating manager

5.4.1 The Employee Relations (ER) team will appoint an appropriate manager to act as the investigating manager.

5.4.2 The investigating manager will identify any information or witnesses which may be relevant to the allegation and will investigate the allegation(s) thoroughly.

5.5 Notification and attendance of a fact-finding meeting

5.6.1 The investigating manager will promptly write to the employee advising them of the nature of the allegation and inviting them to attend a fact-finding meeting.

5.5.2 It is not always necessary to hold a fact-finding meeting with the subject of the investigation, however, if a meeting is required, the employee will be given reasonable advance notice and time to prepare. At the meeting the employee will have the opportunity to put their point of view across and discuss the allegation(s).

5.5.3 There is an expectation that all employees who are asked to participate in a fact-finding investigation (including witnesses) will cooperate with the investigating manager by attending meetings as requested and answering questions as fully and honestly as possible. If the employee has any reasonable adjustments that they would like to be considered, they should contact the ER team in advance of the meeting.

5.6 Accompaniment at fact finding meeting

5.6.1 Employees may be accompanied by a RoS recognised trade union representative or RoS colleague. The companion will be bound by the same confidentiality requirements as the employee.

5.7 Outcome of fact-finding investigation

5.7.1 When the fact-finding investigation is complete the investigating manager will consider all the information and facts at their disposal and will prepare an investigation report clearly stating the allegation(s), evidence that has been gathered both in support of and contrary to the allegation and any recommendations which the investigating manager makes which may include:

• whether there is a case to answer including whether they recommend that a disciplinary hearing be held
• whether any training needs have been identified
• identifying any processes that need reviewed.

5.7.2 If, on completion of the fact-finding investigation, the Investigating Manager has determined that the allegation is unfounded and there is no case to answer, no disciplinary hearing will take place, and the employee will be informed of this outcome in writing.

5.7.3 However, if, on completion of the fact-finding investigation, the investigating manager determines that there may be a case to answer then this will be explored further at a formal disciplinary hearing at which the employee will have the opportunity to put their case forward.

5.7.4 The fact-finding investigation report should include the severity of the breach (minor or gross misconduct) and potential outcomes.

6. Disciplinary hearing

6.1 ER will appoint an appropriate and independent manager to act as hearing manager. Where possible they will be a grade higher that the Investigation Manager. The Investigating Manager will not undertake the role of the hearing manager.

6.2 The role of the hearing manager is to:

• listen to what the employee has to say during the meeting
• ask questions and seek clarification where necessary
• consider all the information available before making a decision on an appropriate outcome
• assess the severity of the misconduct, e.g. minor or gross misconduct
• recommend appropriate level of possible outcomes.

6.3 Members of the HR team will attend the Disciplinary Hearing to take notes. The ER team will also attend to advise on HR policy, procedure and employment law where appropriate.

6.4 All meeting notes will be shared with the employee(s) and witnesses (if any) for them to confirm their consent and acceptance that they are an accurate description of the discussion.

6.5 The hearing pack that the employee will receive prior to the hearing meeting will include witness statements, meeting notes from all the meetings that the Investigation Manager has done as part of the fact-finding investigation and the fact-finding investigation report.

6.6 Both the hearing manager and the employee may call witnesses and should inform the other party who they are calling in advance of the disciplinary hearing. A minimum of two days’ notice should be provided by either party should they wish to call a witness to attend. If the employee wishes to invite a witness it is their responsibility to ensure that the witness is aware of the date, time, and location of the meeting. The hearing manager and the employee will be able to ask questions of any witnesses called.

6.7 Employees may be accompanied by a RoS recognised trade union representative or RoS colleague. The companion will be bound by the same confidentiality requirements as the employee.

6.8 Inability or failure to attend the disciplinary hearing

6.8.1 In the event that an employee is unable to attend the hearing it may be rescheduled.

6.8.2 If an employee is repeatedly unable to attend the rescheduled appeal hearing then, depending on the circumstances, the hearing may proceed in their absence and a decision made based on the facts available.

6.8.3 In such cases, the hearing manager may consider written submissions or representation by an employee or trade union representative.

6.8.4 If the chosen companion is unable to attend on the proposed date, then the employee is entitled to request a postponement. The rearranged date should be where possible, within five working days of the initial date proposed.

6.9 Procedure following the disciplinary hearing

6.9.1 The disciplinary hearing will be adjourned by the hearing manager to consider the facts and, where appropriate, to request further investigation if new information has come to light.

6.9.2 The hearing manager will assess and consider all relevant evidence and what had been discussed during the disciplinary hearing. The Hearing Manager will then make a decision and the employee will be notified in writing, normally within 10 working days of the disciplinary hearing.

6.9.3 The hearing manager will not have any undue delay in reaching their decision. If the decision is delayed for any reason, the employee will be advised. All decisions will be communicated in writing, giving full reasons for the decision and details of sanction applied (where applicable).

7. Possible outcomes

7.1 There is no set tariff of penalties for particular offences. The seriousness of the misconduct will determine the penalty to be imposed.

7.2 Normally in cases of minor misconduct the possible outcomes can include no case to answer, no formal action or first written warning. In case of gross misconduct, the outcome could be any of the above, or a final written warning, action short of dismissal, dismissal with notice, or summary dismissal without notice.

7.3 Explanation of outcomes

7.3.1 No case to answer: The employee will be advised that the allegation is unfounded and there is no case to answer.

7.3.2 No formal action: The employee will be informed that following the disciplinary hearing no further formal action is to be taken. An outcome of the hearing may be that a training need has been identified and any gaps in knowledge/skill will be addressed appropriately.

7.3.4 First written warning: A first written warning will be issued if conduct or attendance does not meet acceptable standards. This will be in writing and detail the nature of the problem, the improvement required and the timescale. The letter will advise of the right of appeal. The warning will also inform the employee that a final written warning may be considered if there is no sustained satisfactory improvement or change. A first written warning will remain ‘live’ on file for 12 months after which time it will be disregarded for any future disciplinary proceedings.

7.3.5 Final written warning: A final written warning will be issued if the conduct concerned is of a sufficiently serious nature or where there has been a continuation of misconduct. Employees will be informed of this decision in writing, detailing the misconduct, the improvement required and the timescale. The letter will advise of their right of appeal and will also warn that failure to improve may lead to dismissal. Final written warnings will remain ‘live’ for 12 months after which time it will be disregarded for any future disciplinary proceedings.

7.3.6 Action short of dismissal: The Hearing Manager may consider punitive action, in addition to a final written warning, where the misconduct is sufficiently serious. Actions are:

• withholding an annual pay award
• downgrading
• restitution for damage caused to RoS property, equipment, or services
• suspension for up to 14 days without pay.

7.3.7 Dismissal (with notice): The decision to dismiss will not be taken lightly and will occur if there is a further disciplinary issue within a ‘live’ Final Written Warning. The employee will be notified of this decision in writing, detailing the reason/s for dismissal, the date on which the employment will terminate, and the right of appeal.

7.3.8 Summary dismissal (without notice): An employee may be dismissed without notice if it is established following investigation and a disciplinary hearing that there has been an act of gross misconduct. Gross misconduct is misconduct which is viewed as serious enough to invalidate the employment contract between the employer and the employee, making any further working relationship and trust impossible. The employee will be notified of this decision in writing and of their right to appeal.

8. Appeals

8.1 Right of Appeal

8.1.1 Employees have the right to appeal against a disciplinary outcome. The employee should submit their appeal in writing to the address specified on the decision letter within 10 working days of the date of the decision letter. The appeal letter must detail the employee’s reason for appeal.

8.1.2 ER will assess if there are grounds of appeal and will appoint a suitable manager to act as appeals manager and hear the appeal. Where possible the Appeals Manager will be one management grade above the hearing manager. The employee will be notified in writing of the proposed date, time, and location of the appeal hearing.

8.1.3 Appeals can be made if the employee believes the disciplinary outcome is too severe, the process was unfair, or if there's new evidence.

8.2 Right to be accompanied to the appeal hearing

8.2.1 Employees have the right to be accompanied by a RoS recognised trade union representative or work colleague. If their chosen companion is unable to attend on the proposed date, then the employee is entitled to request a postponement. The rearranged date should where possible, be within five working days of the initial date proposed.

8.3 Inability to attend the appeal hearing

8.3.1 In the event that an employee is unable to attend the appeal hearing they should let the appeals manager and ER adviser know as soon as possible and an alternative date will be identified as soon as possible.

8.3.2 If an employee is repeatedly unable to attend the rescheduled appeal hearing, then the hearing may proceed in their absence and a decision made based on the facts available.

8.4 New evidence at the appeal hearing

8.4.1 If an employee wishes to present additional new evidence to support their case, then this must be provided to the appeals manager at least two working days in advance of the appeal hearing.

8.5 Witnesses at the appeal hearing

8.5.1 Both parties may call witnesses and should inform the other party in writing who they intend to call and of their relevance to the allegation in advance of the hearing date. A minimum of two days’ notice should be provided by either party should they wish to call a witness to attend. The appeals manager and the employee will be able to ask questions of any witnesses called.

8.5.2 Please note that it’s the responsibility of the employee to ensure that any witnesses are notified and that they are aware of the date, time, and location of the meeting and that they have discussed attendance with their own manager. If the employee is unable to contact the witness, the ER team will assist.

8.6 The appeal hearing

8.6.1 During the appeal hearing the appeal manager needs to look at the case again to see if:

• the procedure was followed in a fair way
• the outcome was fair and proportionate.

8.6.2 The appeal manager also should:

• hear the appeal
• carry out another investigation (opens in new tab), if necessary
• see if a different outcome is appropriate
• provide the final outcome in writing as soon as possible.

8.6.3 At the appeal hearing the employee will be asked to present their case to the appeals manager. The hearing will be adjourned to allow consideration to be given to all the facts and circumstances prior to a decision being made. The employee will be notified in writing of the decision, normally within 10 working days of the appeal hearing. For all disciplinary action short of dismissal this decision will be final.

9. Employee support

9.1 RoS acknowledges that being involved in the disciplinary procedure is challenging and that employees involved in the procedure may require additional support. Internally, advice and support are available from trade union representatives, the employee’s own line manager and ER team.

9.2 Additional wellbeing support can also be found on RoS' intranet including the Employee Assistance Programme (opens in new tab) providers who offer confidential 24/7 advice.

10. Minor misconduct – examples

10.1 This list is for illustrative purposes only: it is not exhaustive. The gravity and repetitiveness of the act will determine whether it is dealt with as a minor or more serious offence.

• persistent lateness without good reason
• persistent failure to report absences in line with the sickness absence policy
• misuse of flexi working hours’ system, e.g. not recording working time accurately
• refusal to co-operate in the RoS’ disciplinary procedures, including procedures for dealing with poor performance and poor sickness attendance
• negligence which causes financial loss, damage to property or injury to people
• failure to report fraud or suspected fraud as soon as it is discovered or suspected
• failure to report to the Employee Relations Team any criminal charge or conviction imposed on/against you within 2 working days of knowing
• refusing to work in accordance with health & safety rules and procedures
• action which may bring the RoS into disrepute.

11. Gross misconduct – examples

11.1 This list is not exhaustive and other offences, if they are considered to be serious enough, may be regarded as gross misconduct. Any act of gross misconduct might result in the termination of your employment.

• theft or fraud
• forgery or falsification of documents
• physical violence, bullying or threatening behaviour
• deliberate and serious damage to RoS property
• serious misuse of RoS assets or name
• deliberately accessing internet sites containing pornographic, offensive, or obscene material on any employer or personal device
• serious insubordination
• unlawful discrimination, victimisation, or harassment
• bringing the organisation into serious disrepute
• bribery, including the making or receiving of bribes
• serious incapability at work due to alcohol or drug misuse
• causing loss, damage, or injury through serious negligence
• a serious breach of health and safety rules
• a serious breach of trust and confidence
• a serious breach of dignity at work policy
• a serious breach of GDPR
• a serious breach of a code of conduct including the security incidents and the Civil Service Code.

12. Approval and review

12.1 This procedure will be reviewed and approved by the Strategic People Authority annually, unless earlier review is appropriate.