Statutory officers' disciplinary policy

Policy overview

This policy applies to these statutory officer roles:

head of paid service
monitoring officer
section 151 officer

We seek to ensure lawful, fair and effective arrangements for dealing with statutory officers' conduct and disciplinary issues.

This procedure provides a framework for:

making those officers aware of unacceptable conduct
for dealing with any such issues

We comply with relevant statutes, including our constitution. We have based the procedure on the following models:

JNC Conditions of Service for Local Authority Chief Executives (October 2016 version)
JNC Conditions of Service for Chief Officers (November 2008 version)

We also refer to The Local Authorities (Standing Orders) (England) (Amendment) Regulations 2015.

The procedure provides for disciplinary arrangements as defined in article 9 of our constitution for:

head of paid service
monitoring officer
section 151 officer

Should the monitoring officer be investigated, the deputy monitoring officer will be involved with this process in their place.

Objectives

The objectives of this policy are to ensure that:

we meet all relevant legal requirements regarding any disciplinary decisions taken in relation to statutory officers
we treat statutory officers in a fair and consistent manner
the chief executive and other relevant managers are supported to ensure statutory officers meet high standards of conduct
we, along with our employees, clients, the public and recipients of our services are protected from the consequences of misconduct

Principles

At all stages in this procedure, we will ensure that the statutory officer is:

informed of the nature of the issue of concern or case against them
given a chance to explain before we make any decision
given the right to be represented by a work colleague or a recognised trade union representative at any formal meeting or hearing
given reasonable notice of any formal meeting or hearing
notified of the outcome of any formal meeting or hearing in writing
given a right of appeal against formal disciplinary action
confident that we will comply with the obligations to disabled employees under the Equality Act in terms of reasonable adjustments
treated with dignity and respect at all times
recognised to be in a situation of potential stress or anxiety and treated accordingly
not judged "guilty" in advance of the conclusion of the process
confident of confidentiality of communication with limited access to others
confident the process will be carried out quickly and without undue delay

Standards of conduct

Statutory officers must:

be aware of and conform to our values, rules, policies and procedures
co-operate with any investigations, attend any meetings, interviews and hearings
maintain standards of conduct both at work and outside of work

Misconduct includes:

the deliberate provision of false or misleading information (for example, on application forms)
breaches of our information governance policy
failure to comply with sickness absence procedures and absence management policy
falsification of official accounts or documents (for example, expense claims)
incapacity at work, due to the effects of alcohol or non-prescribed drugs
failure to wear or use appropriate equipment or attire made available or necessary for the job. This includes safety equipment unless exempted on the grounds of religion or belief following a risk assessment
unauthorised absence or poor timekeeping
physical violence, indecent behaviour, action or language that is likely to offend. This includes racial, religious or sexual abuse, harassment, bullying or victimisation of others. This includes:
- racial, religious or sexual intimidation
- the prejudice of other employees or members of the public
disruption of others by unruly or disorderly behaviour
discourteous or improper treatment of others
acceptance of bribes or involvement in similar corrupt practice
lack of integrity that may damage public confidence in the council
unauthorised employment (for example, working in another job during hours when contracted to work for us)
working during off-duty hours in a job considered detrimental to our interests
political activity when in a "specified" politically-restricted post
engaging in activities or conduct that may adversely affect recovery from illness
conviction of a criminal offence inconsistent with the position the employee holds
use of our time, property or equipment for personal reasons without permission
theft of, misuse of, damage to or neglect of property or equipment
failure to report actual or suspected abuse
disregard for the health and safety of others, including:
- reckless driving or operation of vehicles, plant or equipment
- smoking in prohibited areas

This list is illustrative and not exhaustive. Some examples may be regarded as gross misconduct. This depends upon the circumstances and seriousness of the case. Except in exceptional circumstances, gross misconduct will result in summary dismissal, without notice.

For further details, read our code of conduct.

Alleged criminal activity

An employment investigation may run in parallel to a:

police
audit
child protection
adult abuse investigation

An employee investigation should not be held up by any such investigations unless considered prejudicial to those investigations to proceed. We may decide on disciplinary action before the outcome of any court hearing.

All employees have the right not to be dismissed or victimised for speaking out. For further details, read our whistleblowing policy.

Invoking a disciplinary procedure

The head of HR will decide an allegation is a staff discipline matter in consultation with:

the chair of the appointments committee
the monitoring officer (or deputy where applicable)

The monitoring officer will keep records of any allegations (or deputy monitoring officer where applicable). The records will reflect whether or not the decision was to invoke the disciplinary procedure. The records will reflect whether any other action was recommended. The records will also detail the advice given by the monitoring officer and HR where appropriate.

Where the procedure has not been invoked but another action is recommended, the matter is referred to the head of HR. This is to ensure that the appropriate alternative action is taken. For example, complaints about a particular service are dealt with through our corporate complaints procedure.

A grievance directed against a statutory officer is first dealt with through our grievance procedure.

Suspension

We may suspend the officer from work, or temporarily redeploy them to work elsewhere. This may happen in cases where the allegations are serious or to facilitate an investigation.

Such actions do not constitute disciplinary action or imply guilt on the part of the employee. We give suspended employees support and appropriate guidance. The suspension, or temporary redeployment, is reviewed regularly.

The chair of the appointments committee will consider whether to suspend the statutory officer with advice from the head of HR or the monitoring officer as appropriate. This may be necessary if there is enough evidence to suggest that:

the officer may be guilty of gross misconduct
the officer's continuing presence at work compromises the investigation
the officer's continuing presence impairs our functions

Gross misconduct is generally defined as misconduct serious enough to:

destroy the employment contract
make any further working relationship and trust impossible

Investigation

Where an allegation is made relating to the conduct of a statutory officer or there is some other substantial issue that requires investigation that matter will be dealt with initially by the chair of the appointments committee. The head of HR will support the chair of the appointments committee throughout the process with the monitoring officer as appropriate.

They may dismiss the allegation without a formal investigation or in some cases with minimal investigation. However, this procedure aims to deal with situations where the matter is not so easily dismissed.

The chair of the appointments committee will inform the statutory officer in writing of the allegations or other issues. They will provide the officer with any evidence that they are to consider.

The statutory officer should provide to the chair of the appointments committee any written representations and evidence from witnesses. The statutory officer may also make oral representations.

The chair of the appointments committee, with advice from the head of HR and monitoring officer, will decide whether:

the issue requires no further formal action under this procedure
to commission an investigation. If appropriate they may appoint an investigator from outside the council

The chair of the appointments committee will inform the statutory officer of the decision in writing.

The head of paid service, monitoring officer or Section 151 officer will be informed that an investigator has been appointed.

The chair of the appointments committee will:

determine the terms of appointment of the investigator
agree to any remuneration, if appropriate
provide facilities
provide all available information regarding allegations or other issues under investigation
inform the statutory officer that an investigator has been appointed

The investigator is entitled to interview witnesses and carry out enquiries. This may include examining:

email
internet
other IT systems
the accounts of the statutory officer

The statutory officer must:

fully co-operate will the investigator
make themselves available for interviews and meetings
provide any relevant documentation or information to the investigator

We will give the statutory officer reasonable facilities and access:

to the council's premises
to our systems
to personal files and diary

This will allow the officer to prepare their responses on the terms agreed by the investigator.

The amount of time spent on the investigation will depend on the case. The investigator may delegate some of the investigation work to an assistant. The chair of the appointments committee must agree to this and inform the statutory officer.

The investigator will prepare an investigation report stating, in their opinion:

whether and to what extent, the evidence supports any allegation of misconduct
or, the evidence supports a need for action for some other substantial reason

After the investigation, the chair of the appointments committee will decide whether to refer the case to the appointments disciplinary sub-committee. They may seek advice from the head of HR and monitoring officer.

The statutory officer will have the opportunity to state their case before the appointments disciplinary sub-committee. This is via a disciplinary hearing.

The chair of the appointments committee will give the statutory officer at least 10 working days' written notice of the date of the disciplinary hearing. The notice will include:

the time and place of the hearing
who will be in attendance at the hearing including the members of the disciplinary sub-committee
confirmation that the statutory officer may be accompanied by:
- a work colleague
- recognised trade union officer
- or, recognised trade union officer representative
a copy of this procedure

Within two working days of receipt of notice of the disciplinary hearing, the statutory officer will agree on the date for the hearing. If not, they must propose a postponement for no longer than 10 working days setting out the reasons for the request.

An independent advisor will advise the disciplinary sub-committee at the hearing. This may be the head of HR or a representative from legal services.

The chair of the appointments committee will not be part of the decision-making process. They will present the findings to the disciplinary sub-committee through, or with assistance from, the investigator.

The disciplinary sub-committee hearing

The monitoring officer will arrange for a written record of the hearing. This may be an audio recording and transcribed into a paper record.

The procedure for the disciplinary sub-committee is:

the chair of the disciplinary sub-committee will explain the purpose of the hearing and procedure
the chair of the appointments committee or the investigator will present the report to the committee. It will include the recommendation of a sanction of dismissal
the statutory officer, the appointments committee and independent adviser may ask questions of the chair of the appointments committee and investigator
the statutory officer has the opportunity to state their case
the disciplinary sub-committee may ask questions of the statutory officer
both sides will sum-up their presentations. It will start with the chair of the appointments committee or the investigator

When the disciplinary sub-committee has heard all of the evidence submitted, they will adjourn to consider what, if any, further action to take. This will be as per the level of sanction recommended by the investigator.

All others present at the hearing will withdraw while the disciplinary sub-committee consider their decision. The independent adviser and monitoring officer will advise them.

A letter from the disciplinary sub-committee to the statutory officer will outline the decision and the action to take.

Outcomes

The policy allows for the following hearing outcomes:

No further action

Where we consider there is no case to answer.

First written warning

This is where the statutory officer's:

conduct has fallen below acceptable standards
offence is sufficiently serious to justify an immediate formal sanction

The warning is live for disciplinary purposes for between six and 12 months, as determined at the disciplinary hearing.

Final written warning

This is where the statutory officer's:

conduct continues to be significantly below acceptable standards, and previous written warnings have not resulted in sufficient improvement
offence is so severe that a final warning is appropriate as a first formal warning or
dismissal would typically be appropriate, but significant mitigation is accepted

The warning is live for disciplinary purposes for between 12 and 24 months, as determined at the disciplinary hearing.

All warnings are confirmed in writing and will include:

a clear statement of the unsatisfactory conduct or behaviour
the level of the warning
the length of time it will remain live for disciplinary purposes
the required level of improvement (in measurable terms)
the consequences of no improvement in conduct or behaviour
the right to appeal

Dismissal

Dismissal will occur where there has been:

gross misconduct
a final written warning issued and further misconduct or unsatisfactory conduct has taken place

Dismissal with contractual notice

Unless the statutory officer is dismissed for gross misconduct, they will receive the appropriate period of notice.

Summary dismissal

Except in exceptional circumstances, actions of gross misconduct will justify dismissal without notice.

The disciplinary sub-committee may refer the matter back to the relevant line manager for management action.

Where the disciplinary sub-committee proposes dismissal, it will inform the monitoring officer (or deputy monitoring officer as appropriate).

The monitoring officer (or deputy as appropriate) will notify every member of the executive of:

the disciplinary sub-committee's proposal to the executive or to the council to dismiss the statutory officer
any other particulars relevant to the dismissal
the period by which any objection to the dismissal proposal should be submitted (within five working days).

At the end of this period, the monitoring officer (or deputy as appropriate) will either:

inform the disciplinary sub-committee that members of the executive have received no objections
or, notify the disciplinary sub-committee that an objection has been received and provide details

The disciplinary sub-committee will consider any objections and satisfy itself as to whether any of the objections are both material and well-grounded. If they are then the disciplinary sub-committee will act accordingly.

If there are no material or well-founded objections to the proposal to dismiss, the chair of the disciplinary sub-committee will inform the monitoring officer (or deputy as appropriate). The monitoring officer will then make arrangements for the case to be heard by the relevant independent panel. This is as per The Constitution.

Appeal process

The statutory officer may appeal against a disciplinary sanction. The statutory officer must confirm in writing within 10 working days of receipt of written confirmation of the decision. Any appeal is made to the head of HR and is heard by the disciplinary appeals sub-committee.

Receipt of a letter is deemed to have taken place two days after posting if sent by first class post.

The statutory officer must outline one or more of the following reasons upon which they seek to appeal and provide evidence. The reasons for appeal may include:

there was a defect in the procedure
not all evidence was considered
the dismissal sanction was too severe
new evidence has come to light since the last hearing

We may consider new evidence in the appeal hearing. The statutory officer must include it in the documents submitted before the hearing. The disciplinary appeals sub-committee may agree to admit late new evidence.

Where new evidence is to be submitted, the employee should state clearly:

what the evidence is
why it is believed that it would alter the original decision
why it was not included at the previous hearing

If the appeal relates to a defect in the original hearing process or procedure, the head of HR may advise that a re-hearing is held in place of the appeal hearing. If this is the case, the meeting will follow the original hearing procedure. They will invite all parties and witnesses. The panel and possible outcomes will be consistent with the appeal hearing procedure.

We will arrange for an independent adviser to advise the disciplinary appeals sub-committee at the hearing. This may be the head of HR or a representative from legal services.

The monitoring officer (or deputy as appropriate) will arrange for a written record of the hearing. This may be an audio recording and transcribed into a paper record.

The procedure for the disciplinary appeals sub-committee is:

the chair of the disciplinary appeals sub-committee will explain the purpose of the hearing and procedure
the statutory officer presents their case based on the grounds specified when submitting the appeal
the chair of the appointments committee and the designated independent person may ask the statutory officer questions
the disciplinary appeals sub-committee may ask the statutory officer questions
the chair of the appointments committee or the investigator presents the management position in response to the statutory officer's grounds of appeal
both sides will sum-up their presentations, commencing with the statutory officer

When the disciplinary appeals sub-committee has heard all of the evidence, they will adjourn to consider whether to uphold or dismiss the appeal. The independent adviser and monitoring officer (or deputy as appropriate) may advise them.

All others present at the hearing will withdraw.

A letter will outline the decision and the action to take.

Relevant independent person's panel

Where the proposal is dismissal, the monitoring officer will make arrangements for the relevant independent person's panel to review the case and recommendations.

The panel must include at least two independent persons. They must be defined in the Local Authorities (Standing Orders) (England) (Amendment) Regulations 2015 as persons appointed under Section 28(7) of the Localism Act 2011.

The panel will receive:

the proposal to dismiss from the chair of the disciplinary sub-committee
the report from the independent investigator
any oral and written representations made by the statutory officer

We may invite an independent investigator to attend to provide clarification if required.

The panel is at liberty to ask questions of either party.

The panel will then forward any advice, views or recommendations to the council. If the panel recommends an action other than that we should approve the dismissal, it must give clear reasons.

Role of the council

Where there is a proposal to dismiss the statutory officer, we must approve the dismissal before we issue a notice of dismissal.

We will therefore consider the recommendation made by the relevant independent person's panel.

This is not a full re-hearing of the case, but consideration by the council will include a review of:

the case and the proposal to dismiss
any advice, views or recommendations of the panel

The statutory officer may attend and be accompanied by their representative. This will enable them to put forward their case before we reach a decision.

We may reject the proposal to dismiss. We will then refer the case back to the disciplinary sub-committee for consideration of a lesser sanction.

Referrals to DBS and other organisations

We have a duty to refer information to the Disclosure and Barring Service (DBS) where we:

have removed an individual from working or volunteering
have concerns about an individual's contact with children or vulnerable adults

We may refer to other professional bodies the circumstances of a case (for example, the teaching agency or health care professions council).