Grievances and disciplinary procedures

Settling grievances

Policy and introduction

It is established policy that all employees should have available to them a fair and effective procedure for the speedy resolution of grievances. In particular, they should:

1. be given a fair hearing by their immediate supervisor or manager concerning any grievances they may wish to raise
2. have the right of appeal to a more senior manager against a decision made by their immediate supervisor or manager
3. have the right to be accompanied by a fellow employee of their own choice (this may be a recognised trade union or staff association representative/shop steward) when raising a grievance or appealing against a decision

The aim of the procedure is to settle any grievance as near to its point of origin as possible and without unreasonable delay.

All stages in the handling of a grievance should be recorded on the Form (POG34) provided at Annex A for that purpose. One copy should be retained by the employing authority and one copy handed to the aggrieved employee.

In the interests of simplicity, the masculine pronoun is used throughout the procedure but it applies equally to male and female employees.

The procedure

The procedure set out below is to be used.

Stage 1

An employee who has a grievance on matters relating to his employment should discuss the same with his line manager/foreman/supervisor. Where this is impracticable for any reason, the grievance may be raised with another appropriate person.

If the employee is dissatisfied with the reply he should refer the matter to his recognised trade union official/shop steward who may then take the matter up with the line manager/foreman/supervisor or other appropriate person.

If the grievance has not been resolved satisfactorily, where practicable within 3 working days of being raised, it should be put in writing by the aggrieved employee using the form at Annex A. One copy should be retained by the employee and the other copy should be handed to the person who dealt with Stage 1 for transmission to a more senior manager who will conduct the second stage meeting. The aggrieved employee must be told which manager will deal with Stage 2 of the procedures.

Stage 2

Where practicable, the more senior manager, whose identity has been given to the employee (by name or by reference to his post) must arrange a meeting with the parties within 4 working days. The employee may be accompanied, if he wishes, by a work colleague (who may be a recognised trade union official/shop steward) and should be reminded of this right when the meeting is being arranged.

The nominated more senior manager who is to conduct the meeting may seek advice on procedural matters from the Office of Human Resources, if he so desires.

As soon as possible after the meeting the nominated senior officer should confirm the decision in writing to the parties.

If the employee concerned remains aggrieved in respect of the original grievance he, (or his recognised trade union official/shop steward), may submit a written request to the Chief Officer to move to the third and final stage in the procedure giving the reasons for this request.

Stage 3

Where the Chief Officer of the employing authority receives a written request for the third and final stage to be activated he shall arrange to hear the grievance personally or by a panel of not more than 3 senior managers. The person or persons hearing the grievance should have had no previous direct involvement in handling it.

The Chief Officer shall invite the parties to attend the appeal hearing which shall be held, where practicable, within 7 working days of his receiving the written request.

The decision of the appeal body shall be notified to the parties as soon as possible after the hearing and shall be final.

Notes

1. The foregoing procedure does not exclude the possibility that:
   1. an employee and his recognised representative may approach the foreman in the first instance
   2. an employee may be represented or be without representation if he chooses
   3. it may operate as a disputes procedure where a group of employees share a common grievance and where this occurs the group may be represented by a recognised trade union official.
      
      
2. The handling of grievances and disputes using the above procedure must operate fairly but the normal rules of evidence used in a court of law will not apply.
   
   
3. It will not be appropriate to use the foregoing procedure in relation to disciplinary matters where a different procedure will operate.
   
   
4. Exceptionally, there is a possibility that an issue which remains unresolved after the grievance procedures have been exhausted could be referred to any established mechanism for conciliation or as a dispute under the Trade Disputes Act.

A) Aim

These procedures are concerned with emphasising and encouraging improvements in individual conduct. Their aim is to ensure that the standards of conduct, attendance and job performance expected of employees are observed by providing a method of dealing with alleged breaches and deficiencies in a manner which is consistent and scrupulously fair.

It is important that all employees should know what standards of conduct are expected of them and it is important that disciplinary cases are considered against a full understanding of any relevant personal, domestic or social circumstances.

It is also important and a requirement of the Employment Act 2006 that staff are told who will be responsible for dealing with the different stages in the disciplinary procedures and to whom they can apply if dissatisfied with any discipline decision affecting them.

(For guidance, it is suggested that:

• the immediate supervisor should deal with Stages 1 and 2
• a more senior manager should deal with Stage 3 and
• an appropriate more senior officer designated by the Chief Officer (or the Chief Officer himself) should be responsible for Stage 4 and all cases of gross misconduct)

B) Scope

These procedures will apply to all Public Services Commission Manual and Craft Workers. In the interests of simplicity, the masculine pronoun is used throughout but the procedures apply equally to male and female employees.

C) Principles

If a complaint is made against an employee he must be made aware of it and the investigation procedures that will follow. When the investigation has been completed, the nature of the complaint should be confirmed (in writing) to the employee and he should be given the opportunity to reply to it, in writing if he so wishes.

No employee will be disciplined unless and until the complaint made against him has been fully investigated and the procedures followed.

At every stage in the formal procedure the employee should be advised of his right to be accompanied by a recognised union representative, shop steward or other representative during the disciplinary interview. If a complaint is proven, the employee should be given the opportunity to make a plea in mitigation before a penalty is awarded.

No employee should be dismissed for a first breach of discipline except in the case of gross misconduct (see E below) when the penalty may be summary dismissal without notice or payment in lieu of notice.

Where an allegation of gross misconduct is made against an employee consideration must be given to suspending the employee with pay (see F below) while the matter is investigated.

Normally, in such circumstances, the period of such suspension should not exceed 10 working days but it may be extended if it has been decided to await the decision of the Courts in relation to an alleged breach of the law.

An employee will have a right of appeal against any disciplinary penalty imposed to an individual or body higher than that taking the disciplinary action.

The procedure may be implemented at any stage if the employee's alleged misconduct warrants such action.

Where an employee is warned about his future conduct or performance he should be given a specified period in writing in which to meet the required standard and his conduct or performance (as the case may be) should be monitored carefully throughout that period.

Should any disciplinary action be reconsidered and effectively withdrawn, any written reference to it should be removed from the employee's personal file and the employee notified accordingly.

D) Procedure

Except in the case of minor faults or incidents, which should be dealt with informally and promptly, usually by the immediate supervisor or line manager, the following formal procedure will be used:

Stage 1 - Oral warning

If the conduct or performance of an employee has been found not to meet acceptable standards, the employee should be seen by his supervisor or first line manager, accompanied by a recognised union representative or other representative, if he wishes, and given the opportunity to give an explanation.

If the complaint is proved, the employee:

1. should be given a formal oral warning by the appropriate supervisor and advised of the reason for it
   
   
2. may be informed of the reason for the warning in writing if the employee requests it
   
   
3. should be advised that it is the first stage of the disciplinary procedure
   
   
4. should be advised of his right of appeal, the right to be accompanied if he wishes by a recognised union representative or other representative, how to make it and to whom
   
   
5. should be told that a record will be kept of the oral warning; that his conduct and performance will be monitored; and also told of the period of satisfactory conduct and performance after which the warning will be disregarded for disciplinary purposes
   
   
6. should be advised that the commission of a similar act, or of a subsequent different offence, may result in further disciplinary action.

Stage 2 - Written warning

If the alleged offence is a serious one, or there is a repetition of an earlier offence, or a further offence is alleged to have been committed during the currency of an earlier oral warning, the employee should be seen by his supervisor or first line manager (or other more senior manager, if appropriate), accompanied by a recognised union representative or other representative, if he wishes, and given the opportunity to give an explanation.

If the complaint is proved, the employee:

1. should normally be given a written warning by the appropriate manager specifying the reasons for it, details of the complaint, the improvement required and over what period of time his conduct and/or performance will be monitored and the improvement will be expected
   
   
2. should be advised in writing that this is the second stage of the disciplinary procedure and that action under the third stage will be considered if there is no satisfactory improvement within the above timescale
   
   
3. should be advised of his right of appeal, how to submit it and to whom, and his right to be accompanied by a recognised union representative or other representative, if he wishes, at any appeal hearing
   
   
4. should be told that a copy of the written warning will be kept on his personal file and told also of the period of satisfactory conduct and performance after which it will be disregarded for disciplinary purposes.

Stage 3 - Final written warning

If there continues to be a failure to improve and conduct or performance is still unsatisfactory, or if the misconduct is sufficiently serious to warrant only one written warning but insufficiently serious to justify dismissal, or if the conduct is sufficiently serious to warrant dismissal (even though it may not come under the heading of gross misconduct) but there may be strong mitigating circumstances, the employee should be seen by an appropriate senior manager, accompanied by a recognised union representative or other representative, if he wishes, and given the opportunity to give an explanation.

If the complaint is proved, the employee:

1. should be given a final written warning (which may also be the first written warning) by the manager including the reasons for it and details of the complaint, should be told that his conduct and/or performance will be monitored, and informed that failure to demonstrate a satisfactory improvement within a reasonable specified period will lead to dismissal (ie the fourth stage of the disciplinary procedure)
   
   
2. may be suspended without pay as a disciplinary penalty for up to a maximum of 5 working days in addition to a final written warning, (but the likely effect of such a suspension on the employee should be considered carefully before this course is decided upon)
   
   
3. should be advised of his right of appeal, the right to be accompanied by a recognised union representative or other representative, if he wishes, how to make it and to whom
   
   
4. should be told that a copy of the final written warning (and a note of any other penalty imposed) will be kept but that, in the case of the warning, it will be disregarded for disciplinary purposes after a specified period of satisfactory conduct and performance.

Stage 4 - Dismissal

If the conduct or performance continues to be unsatisfactory or the employee still fails to meet the prescribed standards in spite of the warning(s) given he should be seen by the Chief Officer or an appropriate senior manager designated by him, accompanied by a recognised union representative or other representative, if he wishes, and given the opportunity to give an explanation. If on examination of the facts the complaint is proved, the officer dealing with the matter will consider any mitigating circumstances advanced and may inform the employee that one or more of the following disciplinary penalties will be imposed:

1. a final written warning (unless one has been given under Stage 3)
   
   
2. monetary payments, either by way of a fine or by way of restitution (in whole or in part) of loss or damage caused by the employee
   
   
3. suspension without pay
   
   
4. dismissal, the reasons for this decision and the date on which employment will be terminated

The employee should be advised of his right of appeal, the right to be accompanied by a recognised union representative or other representative, how to make it and to whom it should be addressed.

This decision will be confirmed in writing.

E) Gross Misconduct

An employee may be summarily dismissed without notice or payment in lieu of notice by the Chief Officer or a senior manager designated by him in cases constituting gross misconduct. The following list, which is not exhaustive, contains examples of actions which will normally be regarded as gross misconduct:

1. Fighting and violent behaviour (including assault on another person).
2. Deliberately ignoring instructions given with regard to the health and safety at work rules and thereby endangering own or another's physical well-being or risking unacceptable loss or damage.
3. Obscene behaviour.
4. Intoxication induced by alcohol or drugs (not prescribed by a medical practitioner) while on duty or liable to be called for duty.
5. Fraud (including fraudulent clocking offences and falsification of records).
6. Wilful damage, or unauthorised use of the employers' property.
7. Stealing property belonging to the employer or another employee.
8. Wilful disobedience of reasonable instructions.
9. Criminal conviction arising from an offence committed within or outside of normal working hours and where the offence is of a nature so as to render the employee unsuitable for the type of work employed or unacceptable to other employees. An offence of unlawfully possessing a controlled drug will be deemed in all cases to be an offence of such a nature.

The above list is not intended to be exclusive or exhaustive.

Where it is alleged an employee has committed an act of gross misconduct he may be suspended from work on full pay by an appropriate senior manager while the matter is fully investigated. (The period of suspension on pay should not normally exceed 10 working days but may be extended if the decision of the Courts is relevant to an alleged breach of the law).

F) Suspension

Where an employee has been suspended with pay while an investigation is conducted (but not where the suspension is in the nature of a disciplinary penalty):

1. the suspension will be terminated and the employee shall receive all monies to which he would have been entitled but for the suspension (excluding overtime) in the event of it being adjudged that the employee was not blameworthy
   
   
2. if the employee is adjudged blameworthy but is allowed to continue in employment, the employer will have discretion whether to make up the wages paid during the period of suspension to the level of earnings he would have achieved (excluding overtime) had he not been suspended
   
   
3. if the employee is dismissed, he will not be entitled to wages other than the sum (if any) due up to the date of suspension but will be allowed to retain any sum already paid to him as an allowance during the period of suspension.

G) Recognised Trade Union lay officials

Normal disciplinary standards apply to the conduct and performance of recognised union lay officials as to other employees, but no disciplinary action beyond an informal oral warning should be taken against them until the circumstances of the case have been discussed by management with a senior trade union representative or full-time official of the recognised trade union.

H) Appeals

PSC M&C 15-001 22.09.2015

An employee has a right of appeal against any disciplinary decision against him. An appeal for a disciplinary sanction short of dismissal will be heard by an authority higher than that which took the decision or by the Chief Officer or an Appeals Committee appointed by the Department, Board or Office concerned. The Chief Officer may authorise another senior officer to hear the appeal either sitting alone or with 2 other appropriate managers. In the case of an appeal against dismissal from the Public Services Commission, an employee shall have a right of appeal in accordance with paragraph 19A below.

Appeals against dismissal shall be notified to the Secretary of the Commission who will arrange for it to be heard by a Panel of three persons, comprising Government employees from a different Department, Board or Office (or combination thereof), than the one in which the employee is deployed.

The Appeal Panel will be drawn from separate lists of 'hearing officers' maintained by the Secretary of the Commission and comprising:

1. A list of persons to act as Panel Chair, who must be graded Senior Executive Officer or above (and equivalent)
2. ii. A list of persons occupying management roles within Government
3. A list of persons occupying any role within Government, serving on the panel to provide an independent perspective.

Persons appointed to the lists of 'hearing officers' may self-nominate or, with their consent, be nominated by a third party.

The Appeal Panel may, at its discretion, seek independent legal advice should it consider this necessary when considering the appeal.

The Appeal Panel will, in all cases, be advised by a representative of the Office of Human Resources.

Appeals must be lodged in writing within 3 working days of the oral warning being given or the date of the written notification of other penalties except in the case of appeals against dismissal where the appeal must be lodged in writing within 5 working days.

The person or body considering the appeal may determine the procedure to be followed at the hearing but a model procedure which may be used or modified is attached at Section I below.

At the appeal hearing particular attention should be paid to any new evidence that was not available earlier and the parties should be given the opportunity to comment on it. It may be appropriate in some cases for the hearing to be adjourned to allow for such evidence to be investigated or for the matter to be referred back to the manager against whose decision the appeal has been lodged.

I) Model procedure for use at hearing of appeals against dismissal or other serious disciplinary action

The person or body considering an appeal against dismissal or other serious disciplinary action
may determine the procedure to be followed at the hearing but the following model procedure may
be used or modified:

1. The person or body considering an appeal shall be given the power to determine the appeal.
   Where a Committee is appointed it will normally comprise 3 persons none of whom have had
   any previous knowledge of, or involvement in handling, the case.
   
   
2. The employee shall be given notice in writing at least 7 working days in advance of the time
   and place of the hearing and shall be allowed to be represented by a companion (who may be
   a work colleague, a recognised union representative or shop steward) of his choice and shall
   be enabled to call witnesses and produce documents relevant to his defence at the hearing.
   He may also be advised in advance of the hearing of the procedure to be used at the hearing.
   
   
3. The representative of the employing authority shall put the case in the presence of the
   appellant and his companion and may call witnesses.
   
   
4. The appellant (or his companion) should be given the opportunity to ask questions of the
   employing authority's representative on the evidence given by him or any witnesses whom he
   may call.
   
   
5. The person hearing the appeal (or the Committee) may ask questions of the employing
   authority's representative and witnesses.
   
   
6. The appellant (or his companion) should put his case in the presence of the employing
   authority's representative and should be allowed to call such witnesses as he wishes.
   
   
7. The employing authority's representative should have the opportunity to ask questions of the appellant and his witnesses.
   
   
8. The person hearing the appeal (or the Committee) may ask questions of the appellant and his witnesses.
   
   
9. The employing authority's representative and the appellant (or his companion) should have the opportunity to sum up their case if they so wish.
   
   
10. The employing authority's representative and the appellant (and his companion) and any witnesses should be asked to withdraw.
    
    
11. The person hearing the appeal (or the Committee) with the person appointed to act as Secretary, should deliberate in private only recalling the employing authority's representative and the appellant to clear any points of uncertainty on evidence already given. If recall is necessary both parties should return notwithstanding only one is concerned with the point giving rise to doubt.
    
    
12. The person hearing the appeal (or the Committee) should announce the decision to the parties personally or in writing as may be determined [unless for special reasons the person hearing the appeal (or the Committee) only has the power of recommendation to the employing authority in which case a report will be submitted to the authority and the parties so advised].

Introduction and definition

Capability relates to the skills, aptitudes, mental or physical health of an employee and should not be confused with the Disciplinary Procedure which deals with an employee’s conduct. The
capability procedure should be applied when a problem arises concerning an employee’s work performance or the ability of an employee to carry out the duties for which he or she is employed.

The objectives of these procedures are as follows:

• to bring about improvement to meet the required standards.
• to encourage a fair, consistent and constructive approach to the problem
• to ensure issues are dealt with efficiently and that clear outcomes are identified at all stages
• to recognise that whilst every effort will be made to help improvement within agreed time limits, failure to meet standards may result in dismissal

Improvement

If at any time during this process, the employee’s performance improves and reaches the required standards and their capability is no longer in question, the employee should be advised and any formal caution should be rescinded.

Scope

These procedures will apply to all manual and craft employees covered by the Public Services Commission Manual and Craft Workers with the aim of addressing the issue of capability as near to its point of origin as possible.

In the interests of simplicity the masculine pronoun is used throughout but the procedures apply equally to male or female employees.

Representation

At each stage of the process the employee shall be advised of his right to be accompanied by his recognised union representative or other workplace colleague during the capability interview.

Procedure

Stage 1 (Informal)

When a supervisor believes that an employee’s performance is inadequate or he is experiencing difficulties with certain areas of his work, the supervisor should invite the employee to an informal discussion. The purpose of this discussion is to address the following points:

• to confirm the standards of work expected
• which areas of work the employee needs to improve
• whether training, retraining is necessary
• if adaptations to the workplace are required
• whether the employee would appreciate some closer supervision/mentoring for a period
• whether counselling or other support is necessary
• to agree a period of time over which improvement is to be shown
• to warn of consequences of failure to improve

The supervisor should subsequently confirm to the employee, in writing, the agreed outcome.

Once Stage 1 has been completed, the supervisor should monitor the employees performance as frequently as is appropriate. If after the agreed period of time has elapsed the employee has shown no improvement, the supervisor should progress to Stage 2.

Stage 2 (Formal)

At this stage the supervisor will be of the opinion that the employee has a capability problem which cannot be resolved informally and should notify the line manager accordingly. The line manager should then notify the employee in writing that a formal interview will be held. The letter should have reference to this procedure, outline details of the employee’s lack of capability, and advise him of his right to be accompanied by a recognised union representative or other representative.

A copy of this letter should be placed on the personal file.

At the interview a full explanation of the lack of capability will be given to the employee who will be given the opportunity to respond and also to highlight any areas of dissatisfaction in relation to training, support or duties undertaken. During the interview a course of action will be agreed and the employee should be made aware that failure to improve within a specified time period (not less than three months) may justify termination on the grounds of capability. The agreed course of action and the consequences of failure to improve must be confirmed in writing to the employee as soon as possible after the interview and a copy placed on the personal file.

The next course of action include:

• voluntary redeployment to a more suitable post (not necessarily equivalent) within the department
• medical advice/treatment where the employer feels that the lack of capability is due to ill health
• more intensive counselling/advice if the reasons for the problem or the solution are not clear
• consider redeployment outside of the department

Stage 3

If after the agreed time period has elapsed and despite encouragement and assistance, sufficient
improvement is considered unlikely, an appropriate senior manager of the Department will hold a further formal interview with the employee. The employee must be notified in writing that he is required to attend a capability hearing and should specify the areas of work which are still unsatisfactory.

Additionally, the employee should be told that the situation appears to justify termination on the grounds of lack of capability and should be given the opportunity to respond. The letter should also advise him of his right to be accompanied by a recognised union representative or other representative.

As a consequence of the interview, the senior manager having considered the explanation of the failure should take one of the following courses of action:

• allow time for further improvement, with a final caution
• redeployment, if necessary to a different grade (see below)
• dismissal with notice or pay in lieu of notice

Further improvement

If the senior manager is of the view that further time to improve should be allowed, he should set out in writing where the improvement is required, the standard expected including the time limit for meeting this standard and the consequences of failure to improve.

Redeployment

If suitable, alternative employment can be found, which may be at a lower grade, then the offer should be made in writing, explaining why it is being made and the possible consequences of refusing it, and give the employee sufficient time to consider the offer and if so, to discuss it with their representative.

Where no alternative work can be found or if the employee refuses the offer, the Senior Manager
should consider one of the other options available at Stage 3.

Dismissal

If it is determined that dismissal is appropriate the Public Sector Pensions Authority should be contacted and the potential benefits available from the superannuation scheme established.

The final decision must be notified to the employee in writing and should also state the right of appeal. The Appeal process is that which is defined for the disciplinary process in Appendix 7 of the Memorandum of Agreement. If the employee wishes to appeal against the decision, he must lodge his appeal with XXXX, within 5 working days.