Workplace conduct & capability
Disciplinary Procedures and Associated Guidance
1.1 This Disciplinary Procedure is designed to help and encourage employees achieve and maintain required standards of conduct, attendance and job performance. It aims to provide consistent and fair treatment for all.
1.2 This procedure is applicable to all University employees, other than academic staff covered by Statute XXI (ie professors, readers, senior lecturers, lecturers, senior research fellows and research fellows).
1.3 Throughout this policy and procedure “days” refers to calendar days, unless specified otherwise.
1.4 Disciplinary action may be necessary where:-
- Rules, regulations and codes of practice/conduct have not been adhered to;
- An employee's conduct is detrimental to the interests of the University, its staff, partners or students, or the maintenance of discipline.
- An employee fails to maintain an acceptable standard of performance or behaviour, other than for medical reasons.
- An employee refuses to perform duties properly allotted by an appropriate person.
1.5 The procedure applies to all staff employed under a Contract of Service by Loughborough University, (hereinafter referred to as the University). The procedure is not applicable to those working under a ‘contract for services’.
1.6 All employees will be referred to this document and its appendix “Authority to take Disciplinary Action” in their Statements of Terms and Conditions of Employment.
1.7 This policy should be read in conjunction with the University’s ‘Standards of Conduct for Employees’.
1.8 No formal disciplinary action will be taken against an employee until the case has been appropriately investigated, in accordance with this policy.
1.9 The employee will be advised of the nature of the complaint and will be given the opportunity to state their case before any disciplinary action is taken.
1.10 At all stages of the formal disciplinary procedure, an employee will have the right to be accompanied/represented by a trade union representative (as defined in the ACAS Code of Practice) (including a full time officer), or a University colleague of their choice.
1.11 No employee will be dismissed for a first breach of discipline, except in the case of gross misconduct, when the penalty may be dismissal without either notice or payment in lieu of notice (i.e. summary dismissal).
1.12 The Disciplinary Procedure may be implemented at any stage if the employee's alleged misconduct warrants such action, but in all cases must be preceded by an investigation.
2.1 Minor faults should be dealt with informally by the relevant line manager.
2.2 This may involve a range of action from counselling, to firmer action to warn that if performance does not improve, then formal disciplinary action will be taken and may include:
- Reminding staff of standards of conduct and performance expected of them.
- Advising an individual about any concerns about their performance, standards of behaviour and the potential consequences of failing to address those concerns satisfactorily.
In cases where informal action has not brought the required improvement, or where the nature of the allegation warrants it, the formal disciplinary procedure should be implemented.
3.1 Action to be taken prior to a disciplinary hearing
3.1.1 Investigation - Prior to formal disciplinary action being taken, the facts of the case must be investigated. It is important to carry out necessary investigations of potential disciplinary matters, impartially and without unreasonable delay, in order to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, this will be a collation of evidence by the employer for use at a disciplinary hearing.
The person(s) designated to conduct the investigation will be nominated by the responsible senior manager, normally in conjunction with the Director of Human Resources and Organisational Development.
Any investigation should:
- Identify the alleged breach of discipline, if any.
- Establish if the standards of other employees are acceptable or whether this employee is being unfairly singled out.
- Consider whether the alleged breach was deliberate or accidental.
- If the alleged breach of discipline is a result of failure to follow published rules, policies or procedures, establish whether the employee has been made aware of them.
- Obtain all available information about the allegation, including written statements etc, where appropriate.
- Advise the employee concerned, at the earliest possible stage, of what is happening and the reasons. The point at which this occurs will depend on a number of factors, including the amount of information available. Some investigations will be kept confidential, e.g. where the police are conducting a criminal investigation.
3.1.2 Action if employee is a Trade Union Representative - If the employee concerned is a Trade Union Steward or Branch Official or, in the case of a breach of Health and Safety Rules, a Health and Safety Representative, there is a requirement, subject to the agreement of the employee, to inform the full time officer of the relevant Union that the formal disciplinary procedure is to be implemented,. This will normally be undertaken by the Director of Human Resources and Organisational Development.
3.1.3 Involvement of Trade Union Representative during investigation - During investigations and investigatory interviews, the member of staff may request a Trade Union representative to be present. Managers are reminded that the early involvement of a Trade Union representative can help with the solution of the problems. The representative/companion should be allowed the opportunity to confer with the employee during any investigatory meeting, but may not answer questions on the employee’s behalf.
3.1.4 Informing employee of allegations and date of disciplinary interview
- If it is decided to proceed to a formal disciplinary hearing, the employee must be informed of the disciplinary allegations in writing, detailing the following as appropriate:
- Nature of allegations
- Date/time/place of alleged incident(s).
- Other staff, students or persons involved in the incident(s).
- Date, time and location of disciplinary hearing.
- Their right to be accompanied by a representative and to bring witnesses to the disciplinary hearing.
- Copies of witness statements.
- The employee must be given a minimum of ten days’ notice of the disciplinary hearing to allow time for consultation with any representative or witnesses.
- The formal notice to the employee of disciplinary allegations will normally be issued by the responsible manager.
- Witness statements and other papers relevant to the case should be given to the employee with the notice of disciplinary allegations, or as soon as possible after its issue, but not later than seven days before the hearing, in order to allow the employee maximum time to prepare his/her explanation.
- If the issue of documents would involve a potential breach of confidentiality, a copy of the relevant records, suitably amended if required, may be given to the individual, or a named representative, who would carry personal responsibility for the maintenance of confidentiality. When the documents are issued the responsibilities involved will be made clear.
- The employee, or their representative, (if applicable) should submit to the responsible manager, at least five days prior to the disciplinary hearing, any witness statements, together with the names of witnesses who they wish to be in attendance at the disciplinary hearing,.
- None of the above prevents new information arising during the course of the disciplinary hearing from being considered. However, this may necessitate an adjournment for an appropriate period which will be determined by the responsible manager, in consultation with the management and employee representatives.
3.1.5 The amount of time between identification of the alleged breach of discipline, the preliminary investigation and notification to the employee, must be kept to a minimum.
3.2 The disciplinary hearing
The aim of the Disciplinary Hearing is to establish all the facts available regarding the alleged breach of discipline, giving every opportunity for the employee to state their case, including any mitigating circumstances, before any decision is taken.
3.2.1 A HR representative should be present to provide professional advice to the responsible manager and assist the proceedings, but the decision will be made by the responsible manager.
3.2.2 Notes of the hearing will be taken by management.
3.2.3 Every effort should be made to ensure witnesses are available at the interview. Any witnesses will normally be required to make written statements, prior to the disciplinary hearing. Statements may be submitted by a witness unable to attend the Disciplinary Hearing, but it must be accepted that these are documents which have not been subject to challenge.
3.2.4 Suggested procedure at hearing
The procedure to be followed at the disciplinary hearing will normally be as follows, but may be varied, with the agreement of both parties.
- At the commencement of the Disciplinary Hearing, the manager hearing the case will explain the purpose of the hearing, how the hearing will be conducted, the roles of those attending and the possible outcomes.
- If the employee and/or their representative does not attend the Disciplinary Hearing, the reason must be ascertained, if possible. If the circumstances were beyond the employee’s control, e.g. illness, another meeting should be arranged. If the meeting is rearranged and the employee fails to attend a second time, without good reason, a decision may be made in the employee’s absence.
- A representative of management will present the management case and be asked to detail the allegations and present the evidence, including the calling of witnesses. The employee and/or their representative, the manager hearing the case and the HR representative advising him/her, will have the opportunity to question the witnesses and the management representative presenting the case.
- The employee and/or his/her representative will be given an opportunity to present their case and call relevant witnesses. The management representative, the manager hearing the case and the HR representative advising him/her, will have opportunity to question the employee and the witnesses.
- The management representative should summarise the management case.
- The employee, or his/her representative, should summarise their case.
- The hearing will be adjourned to consider all the information presented before a decision is reached. If there is need to check certain facts, an adjournment may be called and both parties will be advised accordingly.
4.1 The manager hearing the case should decide if a disciplinary penalty, as detailed below, is appropriate, taking the following into consideration:
- whether the Disciplinary Procedure and Standards of Conduct indicate what action will result from the particular misconduct;
- the action taken in similar cases in the past;
- any special circumstances which might make it appropriate to lessen the severity of action which should be taken;
- whether the behaviour was deliberate or accidental;
- the employee's current disciplinary record, general employment record, position and length of service;
- whether the action proposed is reasonable, in view of all the circumstances.
4.2 Disciplinary penalties
4.2.1 Stage 1 - Formal Verbal Warning
If conduct or performance does not meet acceptable standards, a FORMAL VERBAL WARNING may be given. A note of the formal Verbal warning will be kept on the employee’s HR file, but will be disregarded after six months, subject to satisfactory conduct and performance.
The employee will be informed, in writing, of the standards expected and action to be taken by the employee and employer to achieve and monitor the improvement required. Failure to achieve the standard required will result in further Disciplinary action.
4.2.2 Stage 2 - First Written Warning
In the case of a serious breach of discipline, or if a further offence occurs similar to that for which disciplinary action is still current, a FIRST WRITTEN WARNING may be given. The warning will be confirmed in writing and kept on the employee's HR file, but will be disregarded after twelve months, subject to satisfactory conduct and performance.
The employee will be informed, in writing, of the standards expected and action to be taken by the employee and employer to achieve and monitor the improvement required. Failure to achieve the standard required will result in further disciplinary action.
4.2.3 Stage 3 – Final Written Warning
A FINAL WRITTEN WARNING may be imposed in the following circumstances:
- where an employee has received a previous written warning for a similar offence, which is still current;
- where misconduct is considered not to be serious enough to justify dismissal, but serious enough to warrant only one written warning which will be both the first and final.
The warning will be confirmed in writing and kept on the employee’s HR file, but will be disregarded after twenty four months, subject to satisfactory conduct and performance.
The employee will be informed, in writing, of the standards expected and action to be taken by the employee and employer to achieve and monitor the improvement required. Failure to achieve the standard required will normally result in dismissal.
4.2.4 Stage 4 - Dismissal with Notice
This may occur when:
(a) conduct or performance is still unsatisfactory, following warnings and the standard required has not been achieved.
(b) the nature of the offence, although not described as gross misconduct, affects the relationship between the employee and his/her manager, or colleagues, to such an extent that he/she cannot reasonably remain in the employment of the University in any capacity. This assumes that consideration has been given to possible alternative employment.
(c) The employee will be given written reasons for dismissal and the date on which employment terminates. The employee may be given pay in lieu of notice, at the discretion of the University.
4.2.5 Time limits
The above disciplinary penalties specify time limits where appropriate. There may exceptionally be occasions where the periods specified are not suitable.
When an employee's conduct is satisfactory throughout the period the warning is in force, only to lapse very soon after, a pattern may emerge that there is evidence of abuse of the process. In such cases, the employee's disciplinary record should be borne in mind when deciding if a longer time limit should be applied to further warnings.
Exceptionally, there may be circumstances where the misconduct is so serious, verging on gross misconduct, that it cannot realistically be disregarded for future disciplinary purposes. In such circumstances, it should be made very clear that the final written warning will never be removed and that any recurrence will lead to dismissal.
4.2.6 Action taken at end of time limit
Records of disciplinary action taken will be disregarded after the specified period.
4.3 Summary Dismissal (i.e. Dismissal without notice)
4.3.1 Gross misconduct is misconduct serious enough to destroy the employment contract/relationship between the University and the employee and make any further working relationship and trust impossible. Examples of gross misconduct include:
- Theft or fraud
- Physical violence or bullying
- Deliberate and serious damage to property
- Serious misuse of the University’s resources
- Accessing internet sites containing pornographic, offensive or obscene material.
- Unlawful discrimination or harassment
- Bringing the University into serious disrepute
- Serious incapability at work due to alcohol or misuse of drugs
- Causing loss, damage or injury through serious negligence
- Serious breach of health & safety rules
- Serious breach of trust and confidence.
(NB: this list is not exhaustive)
4.3.2 Gross misconduct will normally result in summary dismissal, i.e. without notice or pay in lieu of notice, following an investigation and Disciplinary hearing.
4.4 Downgrading/transfer to alternative employment
In appropriate circumstances, as an alternative to dismissal, the manager hearing the disciplinary case may determine that the employee should be downgraded (without salary protection) and/or transferred to another suitable post within the University.
4.5 Notifying the decision
The employee should, whenever possible, be informed verbally of the decision at the conclusion of the disciplinary hearing, including details of any disciplinary action to be taken. This should be done as quickly as possible.
The outcome of any formal disciplinary hearing will be confirmed in writing to the employee within seven days of the Disciplinary Hearing, together with notification of their rights of Appeal.
5.1 If an employee is charged with, or convicted of a criminal offence, this is not normally a reason in itself for disciplinary action. Consideration will be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with the University, work colleagues, students and external partners (as appropriate).
6.1 Precautionary suspension is not disciplinary action and should only be used where necessary and where alternative options, e.g. exclusion from specific duties/locations/other staff etc, is not feasible. It may be appropriate in the following circumstances:
- Apparent serious misconduct requires investigation and the suspension is required for the period of investigation if it is felt that the employee’s continued presence at work would interfere with the investigation process.
- The action complained of, if substantiated, would constitute gross misconduct and it is considered inappropriate for the employee to remain on the University’s premises pending a Disciplinary Hearing.
6.2 The employee should be suspended on full pay, by a senior manager, for the shortest period possible. The employee should be told the reason for suspension. Written confirmation of suspension must be sent to the employee, with a copy to the Director of Human Resources and Organisational Development, within 48 hours.
6.3 Where suspension lasts for more than two weeks, the Chief Operating Officer (non-academic staff) or the Provost/Deputy Vice Chancellor academic staff) will review its continuation.
7.1 An employee has the right of appeal against any formal disciplinary action taken.
7.2 APPEAL AGAINST FORMAL VERBAL WARNING OR FORMAL WRITTEN WARNING, OR FINAL WRITTEN WARNING, OR DOWNGRADING, OR TRANSFER TO ALTERNATIVE EMPLOYMENT
7.2.1 In disciplinary cases involving the issue of a Formal Verbal Warning, or Formal Written Warning, or Final Written Warning, Downgrading or Transfer to Alternative Employment, the employee shall have the right to appeal to the next management level. Such an appeal must be lodged in writing with the Director of Human Resources and Organisational Development, within 14 days of the warning being notified in writing and should set out in full the grounds for the appeal. The appeal will normally be heard within 21 days of receipt of the notice of appeal. Where this time scale cannot be met, for good cause, both parties will be fully informed.
7.2.2 The notice of appeal shall contain the names of any witnesses the appellant or his/her representative wishes to call. The identity of all witnesses who may be called by management will be available to the appellant or his/her representative.
7.2.3 The employee shall have the right of appearing personally, either alone or accompanied/represented by a trade union representative (including a full time officer), or a University colleague of their choice.
7.2.4 The appeal will be heard by the appropriate manager, who will not have previously been directly involved in the case, in the presence of:-
- The appellant and representative, if applicable
- The management representative.
- A HR representative who will support the manager hearing the appeal.
7.2.5 The employee or his/her representative should be given at least 7 days’ notice of the date of the appeal hearing.
7.2.6 The Appeal Hearing will normally comprise a re-hearing of the case, including the consideration of supporting evidence and witnesses from both sides, as well as the employee’s explanation and mitigation and any new material evidence.
7.2.7 At the end of the hearing, both sides shall have the opportunity to sum up their cases, but the employee, or their representative, shall have the right to speak last.
7.3 APPEALS AGAINST DISMISSAL
Procedure for appeals against dismissal - For all staff other than those employed on a casual (bank) basis.
7.3.1 Appeals against dismissal, whether for reasons of conduct, capability/qualifications, redundancy, contravention of a duty or restriction imposed by or under an enactment, or ‘some other substantial reason’ will be considered in accordance with the following procedure. In every case of dismissal, the employee concerned will be advised of their right of appeal and referred to this document. The Appeal Hearing will normally comprise a re-hearing of the case, including the consideration of supporting evidence and witnesses from both sides, as well as the employee’s explanation and mitigation
7.3.2 An appeal against dismissal shall be heard by a panel of three persons. The composition of the panel shall be as follows:
- a Chair, who shall be a lay member of Council nominated by the Chair or Vice Chair of Council, either of whom may nominate themselves
- a member, nominated by the Chair or Vice-Chair of Council who shall not be from the same department or section as the appellant, shall not have a line management relationship with the appellant and who shall not have been involved in the action which led to the appeal..
- a member, nominated by the appellant ,who must be an employee of the University, who must not have been involved in the action which led to the appeal, and who may be a member of the union recognised by the University as appropriate to the appellant's employment.
- The Appeal Panel will be supported by a HR representative, who will act as adviser to the panel on points of procedure etc and take notes of the proceedings.
7.3.3 An employee who wishes to appeal against dismissal shall notify the Director of Human Resources and Organisational Development, in writing, of the intention to appeal and indicate a nominee to the Appeals Panel. This must be done within 21 days of receiving notice of dismissal.
7.3.4 Upon receipt of the notice of appeal, the Director of Human Resources and Organisational Development will make arrangements for the appeal to be heard by an Appeal Panel.
7.3.5 The Director of Human Resources and Organisational Development shall write to the Appellant and the responsible manager, requiring them to prepare and submit, no later than 14 days before the appeal hearing, their respective Statements of Case, including copies of any relevant documents, details of any new evidence relevant to the case and a list of any witnesses they wish to call in support of their respective cases.
7.3.6 When both statements have been received, the Director of Human Resources and Organisational Development shall send a copy of each Statement, to the Appellant and the management representative respectively and copies of both Statements, to the members of the Appeal Panel, no later than 10 days before the appeal hearing,.
7.3.7 The Appellant and the management representative shall each have the right of appearance at the Appeal Hearing. In the event of an Appellant choosing not to attend the Appeal, or failing to attend, the Appeal Panel may hear the appeal in that person’s absence.
7.3.8 The Appellant may be accompanied/represented by a trade union representative (including a full time officer) or a University colleague of their choice.
7.3.9 At the discretion of the Appeal Panel, the Appellant and the management representative shall each have the right to call witnesses.
7.3.10 The Appeal Panel shall attempt to reach a unanimous decision, but where this is not possible, a majority opinion shall be conclusive. The Panel may adjourn its proceedings, if necessary, but it shall make every effort to conclude its proceedings on the same day.
7.3.11 The Chair of the Appeal Panel shall advise all parties to the appeal of the Panel’s decision as soon as possible and the decision shall be confirmed in writing to the employee and the representatives, within five days
7.4 Suggested Order for Conduct of Dismissal Appeal Hearings
The Chair of the Appeal Panel will open the hearing by introducing those present, outlining the grounds upon which the employee has appealed, explaining how the hearing will be conducted, explaining the roles of those attending and the possible outcomes. The hearing will normally be conducted as follows:
7.4.1 The management representative shall present their case and call any witnesses.
7.4.2 The Appellant, or their representative and the Appeal Panel may ask questions of the management representative and witnesses.
7.4.3 The Appellant, or their representative, shall present the Appellant’s case and call any witnesses.
7.4.4 The management representative and the Appeal Panel, may ask questions of the Appellant and witnesses.
7.4.5 The management representative shall sum up the University’s case.
7.4.6 The Appellant, or their representative, shall sum up the Appellant’s case.
7.4.7 Both sides shall withdraw until the Panel reaches a decision.
7.4.8 The Appeal Panel shall deliberate in private and shall be able to recall both parties to clear points of uncertainty on the evidence already given. If recall is necessary, both parties are to return, notwithstanding only one may be concerned with the point in question.
7.4.9 The Chair of the Appeal Panel shall normally announce the Panel’s decision to the parties in person and confirm in writing, but where this is not practicable, the parties will be advised in writing, as soon as possible and within 5 days.
8.1 In some cases, where the University considers that formal disciplinary action is not appropriate, it may decide instead that an independent mediator may help solve disagreements over disciplinary issues. A mediator will not take sides or judge who is right, but can help the parties reach their own agreement where the employee and the University are unable to solve the disagreement alone. The mediator may also recommend a way forward, where this is agreeable to both parties.
9.1 This policy and procedure will be monitored and reviewed annually by the Director of Human Resources and Organisational Development and any necessary changes will be made in consultation with the Joint Negotiation & Consultation Committee.