DISCIPLINARY POLICY AND PROCEDURE

Policy statement

Aim

The aims of this policy and procedure are to:

Make sure that customer’s rights and safety are protected.

Promote fairness and transparency when dealing with employees who breach standards of conduct, attendance or performance.

·        Provide an effective framework for achieving any necessary improvements by employees and where this is unsuccessful, to terminate the employee's contract.

·        Make sure that disciplinary matters are managed consistently and promptly.

Ensure compliance with employment law and prevent complaints to employment tribunals.

Legal requirements

The Care Worker Agency disciplinary procedures are in line with the ACAS statutory Code of Practice on Discipline and Grievance 2009 (England, Scotland and Wales) The Codes provide practical guidance to employers, employees and their representatives and set out principles for handling disciplinary and grievance situations in the workplace. Employment tribunals will take the Codes into account when considering relevant cases.

All new employees receive a copy of the disciplinary policy and procedure within the staff handbook. The staff handbook informs employees about the standards of conduct and work performance expected of them.  Managers ensure that these standards and procedures are fully understood by new employees as part of their induction.  Managers give employees a further copy of the disciplinary policy and procedure if the formal disciplinary procedure is initiated.

Managers must always seek legal advice prior to taking any informal or formal actions in order to protect the employee and the company.

Scope

This policy applies to all employees of The Care Worker Agency except for those still in their probationary period. It describes the principles and processes for dealing with alleged misconduct and more serious instances of underperformance.

Key principles

·         Wherever possible managers will deal with minor issues of poor performance or conduct informally. Where there is a recurrence, or the matter is more serious, the formal disciplinary procedure will be followed (examples are included at Appendix 1).

·         The informal and formal procedures are separate processes. If, during an informal discussion, it becomes obvious that the matter may be more serious, the meeting will be adjourned. The employee will be told that the matter will be continued under the formal disciplinary procedure. This protects employees rights.

·         As part of the formal disciplinary procedure, the employee will be informed in writing of:

o   The nature of the complaint or allegation against them; and

o   The stage at which the matter is being considered;

o   The arrangements for the investigation and any disciplinary hearing to determine the outcome;

o   Their right to be accompanied by a trade union representative or a work colleague;

o   Their opportunity to state their case and their right of appeal.

·         Employees will be provided with copies of any written evidence including witness statements.

·         The timescales detailed within the procedure will be followed unless variation is mutually agreed. This will be by exception.

·         Managers whose responsibilities require them to conduct disciplinary hearings will be given appropriate training to enable them to undertake their role effectively and in a fair and objective manner.

·         Managers and employees are expected to make every effort to attend interviews or hearings that are part of the disciplinary procedure.  If an individual is unable to attend the disciplinary hearing, they will need to give notice and explain the reasons why. If there are extenuating circumstances or other compelling reasons, the hearing will be rescheduled to another mutually convenient time.  Unless the reasons are exceptional, the re-arranged hearing must take place within 10 working days.  Where an employee fails to give notice of non attendance with reasons, the hearing may be held in the employee’s absence.  Where this measure is invoked, the employee will be informed in writing.

·         Disciplinary action will not be taken against an employee before the investigation is completed and the evidence presented at a disciplinary hearing.

·         The  nature of the disciplinary action will depend upon:

o   The nature and seriousness of the alleged misconduct; and

o   The objective assessment of the evidence from the investigation; and

o   The employee’s past record and any mitigating circumstances.

·         The standard of proof will be on the balance of probabilities. Employees have a right of appeal against any disciplinary action.

·         Misconduct outside of work may also invoke disciplinary action where the misconduct has implications for employment responsibilities.

·         Acts of gross misconduct may also be reported to the relevant professional and statutory bodies.

·         In line with The Care Worker Agency  Equality Policy, the disciplinary procedure will not discriminate either directly or indirectly, on the grounds of gender, race, colour, ethnic or national origin, sexual orientation, marital status, religion or belief, age, trade union membership, disability, or any other irrelevant personal characteristics

·         In cases of underperformance, where the reason is not within the employee’s control e.g. health or changing nature of the job, The Care Worker Agency will in the first instance provide the necessary training and support (refer to The Care Worker Agency policy on Performance Management for more information).

·         The Care Worker Agency will hold and destroy data relating to any disciplinary matters in line with their statutory duties under the Data Protection Act 1998 (refer to The Care Worker Agency policy on Records Management for more information).

·         This policy and procedure will be reviewed following any changes to the legislation or within a period of not more than two years.

Communication to employees 

This policy and procedure will be communicated via:

·          Induction training for all new employees;

·     Performance management meetings as necessary;

·     On The Care Worker Agency intranet for office based staff;

·                     Training for managers.

Quality monitoring

The application of the disciplinary policy and procedure will be monitored by the directors & managers.

What our customers can expect

The Care Worker Agency disciplinary policy and procedures encourage employees to maintain standards of conduct, attendance and performance. Where breaches do occur, these are dealt with efficiently and effectively.

Explanation of terms used in this policy

Disciplinary action: Formal action against an employee, for example, issuing a first or final written warning for misconduct or dismissing someone for gross misconduct.

Disciplinary hearing: A formal meeting to discuss the disciplinary allegation, to hear all of the evidence and to determine whether on the balance of probabilities the allegation is substantiated and if so, what disciplinary action to take.

Informal procedure

Managers will always seek legal advice prior to taking any actions to protect the employee and the company

1.         Minor isolated issues of poor performance or conduct will be dealt with informally by the line manager as part of normal day to day performance management. Some examples are included at appendix 1. These will be brought to the attention of the employee at the earliest opportunity. The objective will be to make sure that the employee understands what behaviours are causing concern, where they need to make improvements, how they are going to achieve this and by when. Refer to The Care Worker Agency policy on Performance Management for more information.

2.         The manager will keep a record of the key points discussed; the actions that have been agreed to achieve improvement and the date to review progress.   In some cases the employee may need additional training, coaching or advice.  Agreed actions will be recorded using SMART principles:

·           Specific

·           Measurable

·           Achievable

·           Realistic

·           Time centred

3.         The manager will make the employee aware that if the agreed improvements are not made then the use of the formal procedure will be considered.

4.         The employee will be asked to check the factual accuracy of the notes of the meeting and agreed actions. Both the manager and the employee will sign the notes of the meeting and the manager will provide a copy to the employee.

5.         Where there is no improvement in the employee’s performance or the matter is more serious, this will trigger a separate process under the formal disciplinary procedure.

Formal procedure

Managers will always seek legal advice prior to taking any actions to protect the employee and the company.

Investigation

6.         When a manager receives information that indicates a breach of conduct by an employee, they will consider what evidence they need to gather, any facts that need to be clarified and who should carry out the investigation.

7.         The investigation will be carried out without delay by an officer who will not act as chair if the matter goes forward to a disciplinary hearing. The investigation may include examination of records, interviews with colleagues and an interview with the employee about whom the allegation is made. The investigation will be carried out impartially and will gather evidence based upon facts and not opinions.

8.         The employee will be informed in writing of:

a.    The nature of the complaint or allegation against them;

b.    The arrangements for the investigation.

9.         The employee will be given a copy of this disciplinary policy and procedure. If there are unavoidable delays in the investigation process, the investigating officer will keep the employee appraised of the reasons.

10.      The manager will consider whether they need to gather any evidence prior to informing the employee. For example, this may be necessary in cases where the employee may falsify records or put pressure on witnesses. Managers will carry this out without delay so that employees can be made aware of the allegations as soon as possible.

11.      If the evidence gathered from the investigation indicates that there is no case to answer then the records will be noted and the employee will be told immediately that no further action will be taken. This will be confirmed in writing.

12.      Conversely, if the evidence indicates that there is a disciplinary case to answer, then the manager will set up a disciplinary hearing. A disciplinary hearing and any decisions about disciplinary action will not happen before a full and impartial investigation into the allegations has been carried out.

Suspension

13.      In some cases the employee will be suspended on full pay pending an investigation. This does not imply that any misconduct has taken place and will always be considered very carefully. It is a neutral act that will only be used when the continued presence of the employee may:

a.    Be detrimental to the conduct of the investigation;

b.    Compromise the employee or The Care Worker Agency;

c.    Present an unacceptable risk to customers

14.      An employee suspended from duty will be given written confirmation of the suspension and the reason for this action.  Whilst an employee is on suspension, they should not attempt to contact colleagues connected to the case with the exception of their trade union representative, work colleague (who is to accompany them at any subsequent hearing, if proven that there is a case to answer) and their line manager. During a period of suspension the employee will not have access to customers of The Care Worker Agency.

15.      Any period of suspension will be for the shortest time possible and will be kept under review. If the police are carrying out a criminal investigation this could take up to a year to complete.  The manager will liaise with the police in order to protect any forensic evidence. Company disciplinary matters are decided upon the balance of probabilities and may be concluded before the outcome of the police investigation is known.

The disciplinary hearing

16.      The purpose of the disciplinary hearing is to hear the evidence and determine, on the balance of probabilities, whether or not the allegations are proved. The chair will hear evidence from the investigating officer, the employee and/or their representative and any witnesses. To maintain impartiality, the chair will not be the same officer that carried out the investigation.

17.      Managers will use the standard template letter (included at Appendix 2) to invite the employee to the disciplinary hearing giving at least five working days notice. The manager will clear the content of the letter with the legal advice team before sending it out. This may be carried out by phone.

The letter informs the employee:

a.    Of the time and place for the disciplinary hearing;

b.    Of their right to be accompanied at the hearing. The employee may bring a colleague or union representative with them.  Their representative may ask questions at the disciplinary hearing, but may not answer on behalf of the employee;

c.    Detail of the concerns with as much relevant information as possible about the consequences.

18.      Copies of any written evidence including witness statements and a copy of this disciplinary policy and procedure will be sent to the employee with the letter.  

19.      The hearing will be held without unreasonable delay, however, employees will be given at least five working days notice so that they can prepare their case.

20.      The disciplinary hearing will be held in a private office where confidentiality can be maintained.  At the hearing the chair will introduce participants including the role of the employee’s representative, clarify the purpose of the disciplinary hearing and the nature of the allegations and explain how the hearing will be conducted.

21.      The investigating officer will give a summary of the evidence that they have gathered and produce any written evidence and/or statements. They may also call on any relevant witnesses. The chair will ask questions to clarify information where necessary.

22.      The chair will invite the employee or their representative to state their case and answer any allegations. If the employee disagrees with the allegations they will be asked to explain why and provide evidence where possible. The employee or their representative may call on any relevant witnesses and ask questions. The chair will ask the employee about any mitigating circumstances.

23.      The employee may confer in private with their representative.

24.      Once all evidence has been heard the chair will decide whether, on the balance of probabilities, the allegations are true. After the hearing they will decide whether or not disciplinary or any other actions are justified and inform the employee in writing within five working days. Their conclusion will either be :

a.    There is no case to answer; or

b.    To offer training and support with no disciplinary action; or

c.    To offer training with disciplinary action;

d.    To take disciplinary action.

25.      If the case is dismissed the standard letter template at Appendix 3 will be sent to the employee. If disciplinary action is to be taken then the manager will seek legal advice before sending the standard letter template at Appendix 4 to the employee. When determining the appropriate disciplinary action the chair will take account of the employee’s past record and any mitigating circumstances.

26.      Where disciplinary action is taken the employee will be informed that unless there is immediate and sustained improvement, further disciplinary action will be taken.

This letter at Appendix 4 informs the employee:

a.    Why and how they need to improve;

b.    The type of disciplinary action and the timescales for improvement;

c.    How this will be reviewed and further consequences if there are no improvements;

d.    How long the disciplinary action will remain current;

e.    About their right of appeal and the procedure for doing so.

27.      The timescales will not usually exceed one month unless variation is mutually agreed by exception.

28.      A record of the hearing will be maintained.

Disciplinary actions

First stage: Written warning.

29.      Where misconduct is confirmed at a hearing, the employee will be given a written warning (using the letter at appendix 4).  The letter will tell the employee about the matters detailed in paragraph 26 above. The record of a written warning will be kept on the employee file and remain there for a period of twelve months. It will be removed from the employee file after nine months if the agreed improvements have been made by the employee i.e. it will be treated as ‘spent’.

Second stage: Final written warning

30.      A final written warning will be issued to the employee where:

a.    There has been a first instance of misconduct or negligence which, following an appropriate investigation and hearing falls short of gross misconduct, but is found to be sufficiently serious to justify proceeding directly to a final written warning; or

b.    There is no improvement in standards within the timescale agreed in the first written warning;  or

c.    A further  instance of misconduct, inadequate performance, absenteeism or poor attendance occurs while an existing written warning remains “live” on file

31.      Before a final warning is considered the manager will invite the employee to a disciplinary hearing following the procedures identified above. The employee will be provided with the information described in paragraph 17.

32.      If the outcome of the hearing is to take disciplinary action, the employee will receive a final written warning. The letter will inform them of the reasons, the agreed actions to resolve the concerns and that failure to meet the agreed actions may lead to dismissal (see paragraph 26 above). Final warnings will remain on the employee file for a period of twelve months until spent (if all agreed solutions/actions have been met). A final warning may be issued at any time when a written warning is still in place.

Third stage: Dismissal

33.      Dismissal will only be used as a last resort where:

a.   There has been no improvement in the employee’s conduct within the agreed period following a final written warning and a change in behaviour appears unlikely; Or

b.   A further breach of conduct or performance has occurred within 12 months of the written warning being issued; And

c.   There are no mitigating circumstances; Or

d.   The employee has committed an act of gross misconduct that is serious enough on its own to justify dismissal.

34.      Dismissal may be considered at any time when a final warning is still in place and unspent. A disciplinary hearing will be held in line with this procedure (points 16-28). The employee may be dismissed with the required notice period. The decision to dismiss can only be taken by the care manager and owner.

Instant dismissal

35.      In cases of gross misconduct where the misdemeanor is so serious that allowing the employee to continue to work their notice period would put customers, colleagues or the reputation of the company at risk, instant dismissal with no notice period or payment in lieu may be considered.

36.      The care manager will use the Disciplinary Notice template in Appendix 4 to confirm the outcomes to the employee. This includes:

a.    Details of the allegation(s);

b.    The evidence presented;

c.    The  reasons for dismissal;

d.    The employee's right to appeal;

e.    The date on which the employment will terminate, and if a dismissal with notice, the notice period.

37.       The letter will be sent to the employee by recorded delivery.

Appeals

38.      An employee has a right to appeal against the findings of a disciplinary hearing or the disciplinary action if they feel that there are specific factors which led to an incorrect decision. This may include, for example, failure to follow the correct procedure if it impacted upon the decision or where new evidence comes to light.  The appeals process is not intended to re-consider the same evidence as the disciplinary hearing.

39.      The employee must write to the director stating why they believe an incorrect decision was made within ten days of receipt of the written disciplinary outcome(s).

40.      The director will consider the appeal and review the information in relation to the specific concerns of the employee. The director will respond to the employee within five working days. This will be the final decision. The director may decide upon a further (appeal) meeting to discuss matters with the employee who may bring a representative. The outcome of any such meeting will also be notified to the employee within five working days.

Referrals

41.      Acts of gross misconduct will be reported to the relevant professional and statutory bodies. Care managers will check the reporting requirements with their relevant regulatory bodies.

Regulatory Inspectorates in the UK

·         Care Quality Commission  (CQC) in England;

Regulatory Social Care Councils in the UK

·         Health and Care Professions Councils (HCPC) (England);

Records

42.      Notice of formal disciplinary action will be in writing using the approved form of letter template.

43.      Records of disciplinary matters and outcomes relating to employees will be accurately recorded and confidentially stored. Records relating to disciplinary matters will include the following:

a.        The complaint against the employee;

b.        The employee’s defence;

c.        Findings made and actions taken;

d.        The reason for actions taken;

e.        Whether an appeal was lodged and the outcome of the appeal;

f.         Any grievances raised during the disciplinary procedure and subsequent developments;

g.        Notes of any formal meetings.

Appendix 1

Examples of breaches and disciplinary acts

Informal procedure

·      Infrequent lateness;

·      Inappropriate dress or adornments such as jewellery or nails;

·      Minor carelessness;

·      Lack of effort;

·      Minor insensitive behaviour toward colleagues and customers.

Formal procedure

Misconduct

  • Breach of procedure(s);
  • Repeated absences or unauthorised absences;
  • Poor time keeping;
  • Placing customers at some risk;
  • Not treating customers (or others including colleagues) with dignity or respect.

Gross misconduct

  • Theft or fraudulent behavior;
  • Physical violence, abusive behavior towards customers or bullying
  • Placing customers at an unacceptable level of risk;
  • Unauthorised absence that places customer at high level of risk;
  • Deliberate and serious damage to a customer’s property;
  • Serious misuse of The Care Worker Agency property or name;
  • Deliberately accessing internet sites containing pornographic, offensive or obscene material whilst on duty;
  • Serious insubordination;
  • Unlawful discrimination or harassment;
  • Bringing  The Care Worker Agency into disrepute either through actions at work or externally;
  • Serious incapability at work brought on by alcohol or illegal drugs;
  • Causing loss, damage or injury through serious negligence;
  • A serious breach of health and safety rules;
  • A serious breach of confidence.
  • Inappropriate use of social media amounting to discrimination, intimidation, harassment or other offensive behaviour toward colleagues, customers or other third parties or which causes damage to the reputation of  The Care Worker Agency

APPENDIX 2.

 

Name of Care Worker

Home Address

 

Date 2012

 

Dear (insert employee name)

 

I have recently received complaints/concerns regarding your conduct as follows:

 

The concerns relate to (insert date and time) and were received from (insert name(s). It is reported that you (insert details/brief chronology of events).

 

These matters have now been investigated and I believe the outcomes indicate that there are sufficient concerns regarding your conduct to warrant a disciplinary hearing.

 

Consequently, a disciplinary hearing will be held at (insert office address) on (insert date) at (insert time).

The hearing will be chaired by (insert name and job title) and will focus on the following allegations:

 

(Insert / List examples)

 

  1. Breaches of confidentiality.

 

  1. Failure to deliver care as planned.

 

It is your right to bring a colleague or union representative to the hearing.  The hearing will follow the process outlined in The Care Worker Agency Disciplinary Policy and Procedure. This procedure was explained to you as part of your induction training. A further copy was provided to you on (insert date) at the beginning of this investigation

Yours sincerely

Director/Registered Manager

APPENDIX 3

OUTCOME OF DISCIPLINARY HEARING

 

Name of Employee (Insert employee name)

 

We  recently carried out an investigation into  (insert details).  A disciplinary hearing was held on (insert details).  The hearing concluded that the allegation (s) were not upheld.  Your line manager will contact you to discuss whether you require any support regarding this matter.

 

Please do not hesitate to contact me if you would like to discuss this further.

Employers signature: .............................................Date................

 

Employee signature: ..............................................Date................

 

 APPENDIX 4

 

 

NOTICE OF DISCIPLINARY ACTION

 

Name of Employee (Insert employee name)

 

Following the recent investigation into (insert name of employee) conduct by (insert details) and the subsequent disciplinary hearing held on (insert details) the outcome was:

 

o   Written warning

o   Final written warning

o   Dismissal

o   Instant dismissal for gross misconduct

The reason for the investigation and subsequent action was:

(insert details)

 

( Delete if action is dismissal) The actions and timescales agreed for improvement are:

(insert details)

 

The action plan will be reviewed by (insert details) on (insert details). In the event that there is no improvement, the following action will be taken:

(state details)

 

This disciplinary notice will remain on (insert employee name) records for a period of (insert details).

You have the right to appeal against either the findings of the disciplinary hearing or this action if you believe that there are specific factors which led to an incorrect decision. Please note that the appeals process is not intended to re-consider the same evidence as the disciplinary hearing.

Should you wish to appeal, you must put your reasons in writing to( insert name of chair) within ten days of receipt of this letter.

( Insert name of  directors of the company,  preferably person(s) who have not been involved in the disciplinary hearing) will consider your appeal and review the information in relation to your specific concerns. You will receive a written response from (insert name) within five working days. This will be the final decision. The director may decide upon a further  meeting to discuss matters with the employee who may bring a representative. The outcome of any such meeting will also be notified to you within five working days.

 

Employers signature: .............................................Date................

 

Employee signature: ..............................................Date................

Reviewed April 2025 by Fay Townsend-Jackson