Disciplinary and dismissal


Last updated 1 July, 2018

Principle and statement of intent

Bumbles Day Care is committed to creating a culture of openness and transparency which encourages issues to be dealt with informally in the first instance.

Disciplinary rules and procedures for misconduct

Objective

The objective of this procedure is to give employees the opportunity to improve their conduct or performance. It identifies who has authority to take disciplinary action and aims to ensure that employees are protected against unjustifiable or inconsistent disciplinary action. It also identifies the type of offence which would result in disciplinary action being taken, what that action would be and what further action would result if there is no improvement or a recurrence takes place.

Informal Action

Cases of minor misconduct or unsatisfactory performance may be dealt with informally. The employer may have a quiet word of caution or advice and encouragement with the employee in order to improve an employee’s conduct or performance. This informal approach may be used in dealing with problems quickly and confidentially. There will, however be situations where matters are more serious or where this informal approach has been tried but is not working. In these circumstances, the employer will use the formal procedure.

Investigations

The purpose of an investigation is for the employer to establish a fair and balanced view of the facts relating to any disciplinary allegations against the employee, before deciding whether to proceed with a disciplinary hearing. The amount of investigation required will depend on the nature of the allegations and will vary from case to case. It may involve interviewing and taking statements from the employee and any witnesses, and/or reviewing relevant documents. The employer will usually appoint an investigating officer to carry out the investigation.

Investigative interviews are solely for the purpose of fact-finding and no decision on disciplinary action will be taken until after a disciplinary hearing has been held. The employee does not normally have the right to bring a companion to an investigative interview. However, the employer may allow the employee to bring a companion if it helps you to overcome any disability, or any difficulty in understanding English.

The employee must co-operate fully and promptly in any investigation. This will include informing the employer of the names of any relevant witnesses, disclosing any relevant documents to the employer and attending investigative interviews if required.

If the employee cannot attend the investigation meeting he/she should inform the employer immediately and we will arrange an alternative time. The employee must make every effort to attend the meeting, and failure to attend without good reason may be treated as misconduct in itself. If the employee fails to attend without good reason, or is persistently unable to do so (for example for health reasons), the employer may have to reach its conclusions based on the available evidence.

General Principles for the Formal Disciplinary Procedures

  1. No disciplinary action shall be taken until there has been a full investigation into any alleged incident (please see above).
  2. The employee has the right to receive, prior to disciplinary hearings:
    • A written statement of the alleged misconduct; and
    • Particulars on the basis for the allegation.
  3. The employee has the right to reasonable opportunity, prior to disciplinary hearings, to consider their responses to the information provided on the allegation.
  4. The employee will be entitled (where reasonably requested) to be accompanied at any disciplinary or appeal hearing by a fellow worker or Trade Union Official (who may be either a full-time official employed by a union or a lay union official who has been reasonably certified in writing by his/her union as having experience of, or as having received training in, acting as a worker’s companion).
  5. The employee must take all reasonable steps to attend the disciplinary and appeal hearings.
  6. The employer will ensure that the disciplinary rules and procedures are applied fairly and consistently.
  7. The employer will ensure that;
    • All steps under the procedure are taken without unreasonable delay;
    • The timing and location of all hearings are reasonable;
    • Hearings are conducted in a manner which enables employees to explain their cases; and
    • Disciplinary appeal hearings will be conducted, as far as is reasonably practicable, by a more senior manager than the manager who took the disciplinary action being appealed. This does not apply where the most senior manager attended the disciplinary hearing at which the decision was made to take the disciplinary action being appealed.
  8. Where a written warning has been issued a copy will be kept but disregarded for disciplinary purposes after a specified period, for example 12 months.
  9. The employer will keep written records during the disciplinary process. These will include the complaint against the employee, notes taken during the hearings and appeals, findings and actions taken, details of the appeal and any other information relevant to the process.
  10. The employer will take all reasonable steps to ensure that confidentiality is maintained throughout the process.
  11. All warnings will clearly state the misconduct concerned and clearly indicate what the eventual outcome will be if there is no improvement on the employee’s part or a recurrence takes place.
  12. If a final disciplinary warning has been validly issued and is still current, the employer is entitled to take this into account when considering whether to dismiss for a subsequent act of misconduct, even if the two acts of misconduct are for different matters. The employer will take into account the degree of difference or similarity between the different matters when deciding what sanction to impose.
  13. When deciding what sanction to impose, the employer will take into account the factual circumstances giving rise to any previous warnings.
  14. If an employee has been issued with a final written warning this normally means than any further misconduct within the duration of that warning may result in dismissal.
  15. Precautionary Suspension: In certain cases, for example in cases involving gross misconduct, where relationships have broken down or there are risks to the employer’s property or responsibilities to other parties, consideration will be given to a brief period of suspension with full pay whilst an unhindered investigation is conducted. The employer will also consider alternative actions which would be more acceptable to the employee yet serve the same purpose as a suspension e.g. agreeing to a temporary transfer to other duties or another work station without loss of pay or the taking of annual holidays to which the employee is entitled. Any action taken will be reviewed to ensure it is not unnecessarily protracted. It will be made clear that any action taken is not considered a disciplinary action.
  16. If the employee has difficulty at any stage of the procedure because of a disability, he/she should discuss the situation with their line manager as soon as possible.

Types of misconduct

The following list shows examples of the type of rules/offences which the employer has categorised for each level of misconduct. This is not an exhaustive list and management reserves the right to decide how any other misconduct shall be categorised:

Minor misconduct

  • Regular incidents of absence
  • Poor Timekeeping
  • Failure to comply with Absence Notification and Certification Procedure
  • Careless work and poor effort at work
  • Minor breach of safety/hygiene/security rules
  • Extended tea and meal breaks
  • Failure to maintain a tidy and safe working environment
  • Misuse of telephone
  • Excessive time away from the job
  • Failure to wear any protective clothing/equipment provided
  • Failure to complete records as required

Major misconduct

  • Dangerous physical horseplay
  • Neglect causing damage to or loss of employer’s, children’s or other employee’s property or equipment
  • Serious neglect of safety/hygiene/security rules
  • Smoking in the workplace
  • Consuming intoxicants during working hours or bringing intoxicants into the premises without permission
  • Entry into any unauthorised areas
  • Wilful or excessive wastage of material
  • Unsatisfactory attitude to work colleagues, children, parents, any visitors to Bumbles Day Care
  • Use of foul language
  • Gambling on the premises
  • Insubordination
  • Misuse of social media including facebook, twitter, Instagram and all other social networking sites.

Gross misconduct

  • Theft
  • Physically violent behaviour
  • Leaving the premises or site without permission
  • Refusal to carry out a reasonable work instruction
  • Deliberately ignoring safety/hygiene/security rules and thereby endangering one’s own or another’s physical well-being or safety
  • Obscene behaviour
  • Intoxication induced by alcohol or drugs
  • Fraud
  • Disclosing confidential business information to a third party
  • Wilful damage to or gross negligence of employer’s, children’s or other employee’s property/equipment
  • Undertaking work in competition with own employer
  • Falsification of records
  • Unauthorised use of employer’s vehicle
  • Gross misuse of company’s internet/e-mail system
  • Gross misuse of social media including facebook, twitter, Instagram and all other social networking sites

Note

Any allegation of bullying in the workplace or any allegation of discrimination, victimisation or harassment linked to anti-discrimination legislation including gender, gender reassignment, sexual orientation, marriage, civil partnership, disability, race, age, religious beliefs or political opinions will be thoroughly investigated and where appropriate will be dealt with under the disciplinary procedure. The disciplinary response will depend upon the nature and seriousness of the incident and in extreme cases may result in summary dismissal.

Formal procedure

When taking formal disciplinary action, the employer will comply with the Statutory Procedures by ensuring that the following steps are taken at all stages of the formal disciplinary process.

Step 1: Statement of grounds for action and invitation to meeting

The employer will provide to the employee a written statement of the alleged misconduct which has led to the consideration of formal disciplinary action or dismissal. The employer will also inform the employee what the likely range of consequences will be if the employer decides after the hearing that the allegations are true. The employer will invite the employee to a hearing to discuss the issue.

Step 2: Meeting

Prior to the hearing the employee will be informed what the basis was for including in the correspondence under Step 1 the ground or grounds given in it. The employee will be given reasonable opportunity to consider his/her response to that information before any hearing takes place.

An appropriate manager of the employer will be appointed to deal with the disciplinary matter and another member of the employer may also be present to take notes. At the disciplinary hearing the employer will go through the allegations against the employee and the evidence that has been gathered. The employee will be able to respond and present any evidence of their own. The employer may adjourn the disciplinary hearing if it needs to carry out any further investigations such as re-interviewing witnesses in the light of any new points the employee has raised at the hearing. The employee will be given a reasonable opportunity to consider any new information obtained before the hearing is reconvened.

After the meeting the employer will inform the employee in writing of the decision and offer the right to appeal.

Step 3: Appeal

If the employee wishes to appeal the employer’s decision he or she will inform the employer within five working days of being informed of the disciplinary sanction. Where an appeal is requested, the employee will be invited to an appeal hearing. The appeal hearing will usually be held within five working days of the request for an appeal.

If the employee raises any new matters in their appeal, the employer may need to carry out further investigations (as well as adjourning the appeal hearing). If any new information comes to light the employer will provide the employee with a summary including, where appropriate, copies of additional relevant documents and witness statements. The employee will have a reasonable opportunity to consider this information before the hearing.

After the appeal hearing the employee will be informed in writing of the employer’s final decision usually within five working days. There will be no further right of appeal.

Minor Misconduct

If the alleged breach falls within the minor misconduct category the employer will follow the formal procedure outlined above and the following action will be taken if the employer is satisfied that an offence has occurred:

  • Stage 1 – You will be given a verbal warning. It will be recorded and retained on file for a period of 6 months.
  • Stage 2 – If the same or similar offence is repeated within 6 months you will be given a first written warning. It will be recorded and retained on file for a period of 12 months.
  • Stage 3 – If the same or similar offence is repeated within 12 months you will be given a final written warning. This will contain a clear notice that a repeat of the offence within 12 months may result in dismissal.
  • Stage 4 – If the same or similar offence is repeated within 12 months you may be dismissed.

Major Misconduct

If the alleged breach falls within the major misconduct category the employer will follow the formal procedure as outlined earlier. If the employer is satisfied that an offence has occurred you will receive a final written warning which will contain clear notice that any other offence within 12 months may result in dismissal.

Gross Misconduct

If the alleged breach falls within the gross misconduct category the employer will follow the formal procedure as outlined earlier. If the employer is satisfied that an offence has occurred the employee may be dismissed summarily: i.e. without notice and without pay-in-lieu of notice.

Alternatives to dismissal

As an alternative to dismissal, the following sanctions may be considered: a final written warning, and if allowed for in the contract or mutually agreed, disciplinary suspension without pay, demotion, transfer to other duties.

Disciplinary authority

In the event of a breach of the employer’s rules disciplinary hearings and appeals will be conducted by the appropriate disciplinary authority as follows:

  1. Stage
  2. Disciplinary Hearing
  3. Appeal
  4. Stage 1 (Recorded Verbal)
  5. Co-ordinator / Deputy Manager
  6. Deputy Manager / Manager
  7. Stage 2 (First written)
  8. Deputy Manager
  9. Manager
  10. Stage 3 (Final written)
  11. Manager
  12. Managing Director
  13. Stage 4 (Dismissal)
  14. Manager
  15. Managing Director

The right to be accompanied

As detailed above the employee will be entitled (where reasonably requested) to be accompanied at any disciplinary or appeal hearing by a fellow worker or Trade Union Official (who may be either a full-time official employed by a union or a lay union official who has been reasonably certified in writing by his/her union as having experience of, or as having received training in, acting as a worker’s companion). The employee must tell the employer who their chosen companion is, in good time before the hearing.

A companion is allowed reasonable time off from duties without loss of pay but no-one is obliged to act as a companion if they do not wish to do so.

See the Labour Relations Agency Code of Practice in relation to the right to be accompanied.

Statutory modified dismissal and disciplinary procedure

There may be some limited and very exceptional situations involving alleged acts of gross misconduct where some of the general principles of the Disciplinary Rules and Procedures for Misconduct will not apply.

These situations will be where:

  • dismissal is without notice and occurs at the time when the employer became aware of the misconduct or immediately thereafter;
  • the employer is entitled, in the circumstances, to dismiss by reason of the misconduct without notice and without pay in lieu of notice;
  • the employer believed that it was reasonable, in the circumstances, to dismiss before enquiring into the circumstances in which the misconduct took place.

In these very exceptional situations the following modified procedure will apply:

Step 1: Statement of grounds for action

The employer will provide the dismissed employee with:

  • a written statement of the alleged misconduct which led to the dismissal, and
  • written particulars on the employer’s basis for thinking at the time of the dismissal that the employee was guilty of the alleged misconduct, and
  • written confirmation of his/her right of appeal against the dismissal.

Step 2: Appeal

If the employee wishes to appeal he/she must inform the employer within 5 working days.

  • All appeal requests must be made to the Managing Director
  • Appeal hearing usually shall be heard usually within 5 working days of receipt of the request.
  • The employee must take all reasonable steps to attend the hearing.
  • The employee has the right to be accompanied at the appeal hearing.
  • The result of the appeal hearing shall be notified to the employee usually within 5 working days of the appeal hearing