Page1 Discipline and grievance issues

It is absolutely vital that you follow fair and transparent procedures in disciplinary and grievance matters. If you fail to do so, you could find yourself judged to have dismissed someone unfairly.

Good procedures will enable you to stay on the right side of the law and enable you to deal with disciplinary and grievance issues consistently and fairly, with a view to sorting them out before they become serious. This briefing covers:

1. 2. 3.

The legal requirements. When the procedures apply. Drawing up disciplinary rules.

1 Establishing the principles

The procedural requirements set out the rules that you and your employees must follow when dealing with disciplinary issues and grievances.

1.1 Make sure employees can find out about your disciplinary rules.

Inform employees where they can see the rules. For example, in a handbook or displayed on a staff noticeboard.

You cannot reasonably complain if someone breaks a rule they did not know existed.

1.2 Your rules must be reasonable.

The seriousness of the offence should be assessed according to the damage done. Ensure your rules are not discriminatory. For example, requiring more formal dress from men than women.

1.3 Your rules must be applied fairly, reasonably and consistently.

Investigate thoroughly before you lay any disciplinary charges. Give the employee time to consider a response and the opportunity to make representations (or to have representations made on their behalf).

Take time to consider your findings and carry out a follow-up investigation if required. Any appeal should, if possible, be heard by someone senior, who was not involved in the first hearing.

In deciding on penalties, it is important to be consistent and reasonable - you can take mitigating circumstances into account.

If you treat people differently for the same offence, you must be able to explain why.

1.4 You must use fair and reasonable procedures when dealing with disciplinary and grievance issues.

Your procedures should ideally comply with the Acas Code of Practice which sets out principles for handling discipline and grievance issues in the workplace.

See the Code of Practice.

Failure to follow the Code of Practice could be very expensive. Put your procedures down in writing and give all employees access to a copy.

Dealing with grievances

You are required to have grievance as well as disciplinary procedures. Your procedures should be clear and transparent.

Train managers to enable them to handle grievances effectively. Try to resolve grievances informally.Many issues can be solved by simply talking them through.

Where informal measures do not resolve the grievance, the employee should put the grievance in writing. Arrange a face-to-face meeting to discuss the problem.The employee has the right to be accompanied.

Decide on any necessary action. If the employee is not happy with the outcome, he or she can appeal. Any appeal should be heard by someone impartial not involved in the original hearing. Keep a written record of the case.Ensure they are kept confidentially.

Undertaking a Disciplinary Investigation : A Guide for Investigating Officers

Introduction: Your responsibilities
As investigating officer your responsibilities are to: gather all the relevant facts promptly before peoples memories fade establish the exact nature of the allegations and the evidence to substantiate these summarise your findings in an investigation report recommend whether or not the allegations should be considered at a disciplinary hearing present evidence at any disciplinary hearing and answer questions as required attend any appeal hearing as a witness, where required In carrying out an investigation you should: ensure the investigation is carried out as quickly as possible be thorough and fair remain impartial and objective, do not make assumptions consider whether there are any mitigating circumstances maintain confidentiality as appropriate talk to staff and, where appropriate, clients concerned with the incident as appropriate to establish the full facts seek supporting evidence, including any that is favourable to the employee obtain statements from witnesses and keep notes of investigation meetings compare statements and notes and attempt to resolve any discrepancies
West Berkshire Council Undertaking an Investigation January 2007

Copyright West Berkshire Council The Process

Prepare : Plan your investigation before you begin consider what information you need to gather. Before meeting with the employee and other witnesses, plan the questions you should ask. ( You can use appendices 1 and 2 to help you prepare.) Throughout the investigation a member of Human Resources will be available to advise you, for example, in the preparation of questions. Decide how best to conduct the investigation. This will depend on the complexity of the case. For example, you may decide, in some circumstances, a witness statement will suffice. In other circumstances, you may decide to meet with witnesses , but ask them to produce a statement before the meeting. Or, you may chose to meet the witness / employee in person in the first instance. Decide the order in which you will meet witnesses and the employee. You can meet with them more than once if necessary. Plan where to hold investigation meetings - this needs to be in a private place that will be free from interruptions. You should take notes of key points raised at the meetings. The notes do not need to be verbatim. You should give a copy of the notes to the employee/witness following the meeting and ask them whether the/she would like to add anything to them. Where the employee/witness provides alternative notes of the meeting both versions should be included in the evidence supporting your investigation report. Meet the employee : Give the employee notice of the meeting so that they can prepare

When meeting with the employee against whom the allegations have been made, remind him/her of his/her right to be accompanied by a trade union representative or work colleague. Ensure that the employee understands the allegations that have been made. Ask him/her to respond to these allegations and produce evidence to support his/her response. Use open questions to gain information, clarify the issues e.g. what happened then? and to check your understanding of what has been said Note: A police investigation may delay investigation or disciplinary action under the West Berkshire Council/school procedure. Where a police investigation is being undertaken seek further advice from HR.
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Meet witnesses : You may decide it is not necessary to interview every witness, and a written and dated statement will suffice. Where you decide to meet with a witness, the following will apply You may wish to ask witnesses to write a personal statement prior to meeting with them. Where appropriate you could ask them to respond to certain questions. Where a witness provides a written statement you need to be happy that you have got all the information that you require from them and that there are no unanswered questions. If you are not satisfied you can reinterview the witness. Discuss with HR if a witness is unwilling to get involved Meet witnesses and ask them to explain what happened, or where you have asked for a written statement in advance, to gain clarification and/or further information about points that they have made. Use open questions to gain information, clarify the issues e.g. what happened then? and to check your understanding of what has been said Dont lead the witness, but do encourage them to concentrate on the main facts. Advise witnesses that their statements and responses to questions may be made available to the employee and to the management side if the investigation results in a disciplinary hearing. Witnesses also need to be made aware that they may be called to give evidence at a disciplinary hearing.

Gather other evidence :

Ask and seek supporting evidence to substantiate information provided by witnesses and/or the employee. Keep copies to use as supporting documentation. You may need to look at documents such as work rotas, attendance reports, shift/handover notes, incident reports, minutes of team meetings, one to one records, appraisal documentation, emails, letters, training records, development plans. Again, you will need to make copies, for supporting documentation. Look at the employees background and employment record as well as any special circumstances that need to be taken into account.
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Preparing an investigation report: Once you have completed the investigation you will need to write a report, which you should give to Human Resources, to be included in the documentation used at any subsequent disciplinary hearing. The summary and recommendation section of your report should be given to the Head of Service/Headteacher so that he/she can confirm whether the allegations should be heard at a disciplinary hearing. It is important that you do not discuss the full details of

the case with the Head of Service/Headteacher as this could prevent them from hearing any subsequent appeal. Your report should be clear, concise and presented in a logical format. It should: Outline the allegations Provide full supporting evidence. Make sure you include all the relevant facts so that it would make sense to someone unfamiliar with the case. Include those facts favourable to the employee. Contain a summary of events as evidenced by your investigation, referring to supporting evidence in the appendices as appropriate. Make recommendations based on the findings of your investigation you can recommend that the case is: Dropped Handled informally Considered at a disciplinary hearing Appendix 2 provides a suggested format for the investigation report.
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Appendix 1 Preparing questions It is important to prepare questions before you meet with the employee and witnesses. A member of Human Resources can help you with this. Think about the allegations that have been made and what facts you need to gather. Questions may include: What did you see? Are there any records that confirm the allegations? Where were you standing/sitting? Why did you react in that way? Witness statement Witness statements should contain the following: The name and job title of the person giving the statement Details of the date, place and time of the incident being investigated Confirmation of the names and job titles of all those present The reason for the witness being able to comment on the incident Position in which the witness was able to see the incident Full details of what was witnessed, the sequence of events, names of other persons present, facts. Sketch or plan if appropriate Date, time and place the statement was taken The signature of the witness.
West Berkshire Council Undertaking an Investigation January 2007

Copyright West Berkshire Council Appendix 2 Format of an investigation report:

Introduction: Background information relating to the employee: Name and job title of the employee Length of service, hours of work etc Details of any relevant misconduct previous warnings can only be mentioned if they are still live at the time at which the misconduct took place. Background information about the workplace, such as: Environment

Staffing levels Type of clients (if applicable) Workload and shift pattern Allegations: These should be very specific: Date, time, place of the alleged incident(s) Refer to the employee by name Specify the nature of the misconduct/allegations Investigation: Who conducted the investigation (Your name, job title and service area/position in school) How the allegations were brought to your attention How you carried out your investigation Refer to witness statements, and clarify why these are relevant What other sources of information you accessed Statement of case From the information that you have gathered, take each allegation and present the sequence of events cross referencing to documents/statements within the appendices as appropriate: Highlight the salient points of statements If appropriate, clarify the line managers expectations of what should have happened Explain the correct procedures Demonstrate whether the employee had received sufficient training, support and information to meet these expectations and comply with procedures Refer to any additional supporting evidence Consider the employees explanation of what happened Consider any mitigating factors
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Summary and recommendation for action following your investigation: (This section is given to the relevant Head of Service/Headteacher in addition to HR) Deal with each allegation separately Summarise the nature of the allegation Emphasise any risks if applicable (e.g. to clients/pupils, finances, the Councils/schools reputation) State the reasons why the misconduct would be unacceptable State the reasons why you believe the allegations are proven or not (Briefly referring to witness statements, supporting evidence) Recommend whether or not the allegations should be considered at a disciplinary hearing Notes: The investigation report will comprise the evidence that you will present at the disciplinary hearing. All documentary evidence that supports your investigation (e.g. witness statements, rotas, training records) should be included as appendices and cross referenced through out the report. You should only give the Head of Service/Headteaacher a copy of the summary and recommendations section of the report. You can seek further advice from Human Resources if you are unsure about what you should include.
West Berkshire Council

Undertaking an Investigation January 2007

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Appendix 3

Time-scales : Guidelines for the Investigation:

To ensure a fair process, the investigation needs to be carried out promptly. As investigating officer it is important you treat the investigation as a priority. All cases are different and timescales will vary from case to case depending upon the complexity of the allegations, but the following provides a guide as to the duration of each stage of the investigation. If timescales are slipping, contact HR.

Day 1
Allegations are made

By Day 2
Employee advised of allegations (by line manager) Preliminary investigation carried out if appropriate and allegations confirmed to employee (by line manager) Investigating Officer appointed

By Day 5
Witness statements requested by Investigating Officer Relevant records accessed Statement and records examined by investigating officer

By Day 7
Investigation interviews planned and arranged and employee / witnesses advised of dates

By Day 21 or Day 28 for complex cases

Interviews undertaken Statements collated Relevant records copied Investigation report written and forwarded to HR, summary report forwarded to Head of Service/headteacher

Page3 Preparation Steps

Review all your evidence; fill in any gaps you discover. Determine the importance and relevance of each fact and piece of information. Distinguish between allegations and opinions on the one hand and facts on the other. (Example: Allegation Sarah gets all the well behaved kids; Fact Only 10% of the students Sarah teaches have discipline records versus 25% or more in the other classes. Work with TALB staff to research the grievance file for any past grievances on similar situations. Discuss the grievance with other representatives and officers to gain their insights on the case. Write the grievance (see below for pointers on writing a grievance). Prepare the grievant for the grievance meeting with management; remember, the grievant may have never filed a grievance before and will not know what to expect in a grievance meeting. Describe the setting, who will be there, and how the grievance will be presented. Review with the grievant what he/she will and will not say during the meeting. Some stewards role-play the hearing with the grievant. Anticipate managements arguments, questions and point of view; know how you and the grievant will respond to each of these.

5 Step Approach to Grievance Handling

First Step: Identify the Problem: Whats the Violation?
Does the problem violate the contract? A rule or regulation? Policy or procedure? Federal or State Law? Past Practice? If you can answer yes to any of these questions, it is most likely a grievance.

Second Step: Investigation: Use the 5 Ws

Your role as a TALB Rep is to investigate every worksite complaint. Remember, we dont judge members, we represent them. Investigation begins with interviewing the affected employee; Witnesses (dont count on hearsay) and the Supervisor involved (tell employee first). Remember the 5 Ws: Whos involved? What happened? Where and When did it happen? Why is this a grievance?

Third Step: Document, Document, Document

TALB Reps have the right to information in preparing for a grievance or researching a potential grievance. Always make the request in writing. Examples of information -attendance records; correspondence; discipline actions; job descriptions; safety data; payroll records; and personnel files.

Fourth Step: Preparation & Writing the Grievance

The outcome of a grievance very often depends on how well you prepare ahead of time. Grievance Preparation Tips: (1) review all your evidence fill in the gaps; (2) determine the relevance of the data; (3) distinguish between opinion and fact; (4) research the locals grievance file; (5) discuss the case w/ other TALB representatives; (6) try to resolve the issue informally; (7) write the grievance; (8) prepare the grievant for the meeting with management; and (9) anticipate managements arguments. Writing a Grievance: Be concise just basic facts & information; Dont include opinions, evidence, or arguments; List any & all management violations; Clearly state the desired remedy; Include an information request for all data needed to handle the case; Complete the grievance form with grievant--have them sign it; and Make a copy of the grievance form.

Fifth Step: Presenting the Grievance

In a grievance meeting, you are an equal with management. It is no longer boss and employee. Treat the supervisor with respect, and expect and insist upon respect in return. In meetings, TALB reps

are entitled to speak for the grievant and to stop the meeting at any time to confer with the member. Tips for Presenting the Grievance: Use a positive direct approach; Stick to the subject of the grievance; Try to resolve grievances at the lowest possible level; Focus on issues not personalities; Remain calm cool, and collected; Get every settlement in writing; State what you believe the resolution is.