1. Application and Scope
1.1 The disciplinary procedure provides a framework for dealing with instances where employees are alleged not to have met the required standards of conduct. The aim is to ensure prompt, consistent and fair treatment for all staff and to assist in enabling both the individual and the University to be clear about the expectations of both parties. This procedure applies in cases of misconduct and gross misconduct by any employee employed by the University of York.
1.2 Movement between procedures - If after commencing this procedure, the authorised manager in conjunction with HR, considers that the case in question should have been dealt with under an alternative procedure the case may be transferred to a different procedure. The employee concerned may also make representations regarding the procedure to be followed. In cases of disagreement the Director of HR will determine the appropriate procedure to be followed and there shall be no appeal against that decision. Those involved will be informed of the reasons for the movement between procedures.
1.3 There may be occasions when as a consequence of information obtained under one procedure it is appropriate to initiate action under an alternative.
1.4 Investigations that have been undertaken in one procedure may be used as and where appropriate to inform another procedure.
2. General Principles
2.1 Informal resolution - University managers are responsible for addressing conduct and behaviour issues as early as possible and for taking appropriate action. Where appropriate, steps will be taken to resolve issues on an informal basis without recourse to the formal procedure.
2.2 Suspension - At any stage in the procedure, if appropriate, an employee may be suspended. Suspension is not a penalty and is not an indication of culpability, there is therefore a presumption that suspension will be on full pay.
2.2.1 Any suspension will be considered seriously given the individual circumstances of a case. It will usually be considered in the following situations:
- When an allegation of a serious offence is made against a member of staff
- to provide the opportunity for a full investigation to be undertaken
- when an employee is considered to be a risk to themselves or others
2.2.2 A manager authorised to suspend an employee may consider alternative arrangements to suspension to allow the employee to remain at work during any investigation, for example, temporary redeployment, additional supervision or the restriction of duties, as is deemed suitable in the circumstances.
2.2.3 The decision to suspend will be taken by a Senior Manager (as defined in section 5 of these guidelines) after consultation with HR.
2.2.4 In all cases, the suspension will be confirmed in writing, no more than five working days after the suspension. The letter will detail all the relevant circumstances relating to the suspension. Regular contact should be made with the employee during any period of suspension to provide updates on any developments and there should be an individual manager identified as a contact point.
2.2.5 The reason and arrangements for the suspension will be reviewed periodically (every four weeks) by the Senior Manager referred to in paragraph 2.5 of the procedure in consultation with HR.
2.2.6 During any period of suspension, the employee will be required to cooperate fully with any investigation and to be available to meet during normal office hours. Whilst suspended, the employee will not be entitled to access any University premises unless directed to do so or to use the University's internet/intranet facility or to engage in his or her normal day to day duties unless agreed in advance.
2.2.7 Any request to attend the workplace during suspension to access information required in preparation for a meeting or hearing will not be unreasonably refused but the employee will be accompanied.
2.2.8 If the employee becomes ill or wishes to take annual leave during the period they are suspended the procedures for reporting and authorising such leave will still be applicable. In these circumstances managers should contact HR.
2.2.9 There may be exceptional circumstances when pay may be withheld during a period of suspension. This might arise, for example, where an employee is debarred from work as the University would be in breach of legislation by continuing to employ the individual. Any decision to withhold pay during a period of suspension must be authorised by the Director of HR.
2.3 Temporary exclusion from work
2.3.1 There may be exceptional occasions when due to the timing and or availability of a relevant manager authorised to suspend and due to the seriousness of the situation, exclusion is considered appropriate in advance or instead of suspension. E.g. an employee is under the influence of alcohol and unfit or work or a physical assault has taken place.
2.3.2 When first aware of a serious conduct issue or allegation a manager may instruct an employee to leave work and remain at home on full pay until further notice, in order to allow the manager to take appropriate advice and decide on the next steps. This would be a temporary exclusion (rather than suspension) to allow the manager to determine if suspension is warranted. Any such exclusion will normally last for a day or two and certainly no longer than a week, and must be reported to the Director of HR as soon as possible to facilitate a prompt decision.
2.4 Right to be accompanied
2.4.1 Formal meetings - All employees who are the subject of this procedure will have the right to be accompanied at any formal meetings (including investigatory interviews) by a single trade union representative or work colleague. The work colleague must be an employee of the University of York and time off will be allowed to him/her to facilitate attendance. Employees are expected to make arrangements with his/her work colleague to attend meetings. Where the chosen companion cannot attend on the date proposed, the employee can propose an alternative time and date so long as it is reasonable and is within a reasonable timescale, normally five working days of the original date.
2.4.2 Informal meetings - By agreement, the facility to be accompanied may be extended to the informal stage where this is deemed to be in the interests of an early resolution. If a member of staff wishes to be accompanied at an informal meeting permission will not be unreasonably withheld.
2.4.3 Role of representative or companion - See Section 5 of this document for roles and responsibilities.
2.4.4 Definition of representative or companion - While legal representation would not normally be consistent with an internal procedure, there may be situations when it may be helpful for either party to be legally represented and, subject to agreement, legal representation may be appropriate. Employees should note that the absence of legal representation will not prejudice their legal rights and they will still have recourse to the provisions of employment law.
2.5 Equality and diversity
2.5.1 If there are equality or diversity issues that are relevant to the employee these should be made known to those involved and appropriate support provided by the University. In the case of a disability or language issue an employee may be accompanied by an appropriate person to provide support.
2.5.2 Managers should check if there are any special arrangements, e.g. support for a disability, that an employee or his/her companion may require to enable them to participate fully in the procedure. Appropriate guidance may be sought from an HR Manager. Correspondence in relation to this procedure will invite the employee to inform the University if they require additional support.
2.6.1 All parties involved in this procedure must ensure that they maintain the confidentiality of the process as appropriate within and outside the University. It might be appropriate, for example, for a member of staff to discuss a procedure with his/her partner or with a trade union official. Disclosure of information by any of the parties involved might also occur where this is required under law or where there is a circumstance involving duty of care which requires disclosure, e.g. where a manager has concerns for the well being of the employee or others.
2.6.2 Audio and video recording of meetings is not permitted except in exceptional circumstances, by prior agreement with all parties.
2.7 Involvement of HR
2.7.1 A member of the Human Resources team will be consulted and will advise on the formal process and any suspension. An HR representative will normally be present in formal hearings when dismissal may be an outcome.
2.7.2 If required, a further person, normally from HR, will act as note taker during such formal hearings. The notes will be made available to the parties present following the meeting.
2.8.1 The aim throughout the procedures is to ensure that staff are treated reasonably and in accordance with the principles of fairness and justice. All procedures should be expedited as soon as reasonable whilst still allowing these principles to be achieved.
2.8.2 Whilst every endeavour will be made to comply with timescales, due to the complexity and or specific circumstances of a case, timescales may be extended. In such circumstances the individuals concerned will be advised of the reasons for any delay.
2.8.3 To prevent delays communication in relation to this procedure may be issued via electronic mail.
2.9.1 If an employee does not attend a meeting convened under this procedure normally the meeting will be adjourned to establish contact with the employee to ascertain the reason for his/her absence.
2.9.2 Where an employee fails to attend a meeting/ hearing without good cause, the meeting may proceed and the appropriate manager will make a decision on the evidence available.
3. Informal procedure
3.1 Line managers should seek to resolve minor conduct or performance matters informally and as they arise, by discussing them with the employee to explain and agree what actions need to be undertaken to achieve the required improvements.
3.2 Line managers should be supportive of employees and consider the employees views and/or any mitigating circumstances that may be affecting their conduct.
3.3 While conduct matters are the employee's responsibility to rectify, if appropriate in the circumstances, line managers will consider and provide employees with access to necessary support or training to assist them in meeting the required standards.
3.4 Informal meetings and discussions should highlight:
- The nature of the concerns
- The expected standards of conduct
- Any necessary actions required to be carried out by the employee to aid improvement
- Any timescales for improvement and review dates
- The potential consequences of not achieving the required improvements in conduct
3.5 Notes should be made to record the discussions and to confirm the outcome and retained by the line manager to review the employee's progress against any targets set. These notes will not be retained on the personal file during any informal procedure, however, they may form part of a formal investigation should the case later warrant consideration of formal disciplinary action.
3.6 If the informal action resolves the concerns then it would normally be appropriate to retain such notes for no longer than a 12 month period.
4. Authority to act
4.1 The term Head of Department includes Heads of (or Directors of) Support Service Directorates. Except in relation to the authority to suspend paragraph 2.2.3, the Head of Department may select a nominee to act on his/her behalf. The nominee will be agreed in conjunction with HR and will be a senior colleague. In the absence of the Head of Department it may be appropriate for the manager deputising for the HoD to act on his/her behalf.
4.2 There may be exceptional circumstances where it would not be appropriate for the Head of Department to act in a case e.g. the Head of Department is required to act as a witness or is the subject of a complaint. In such circumstances the case will be referred to the Director of HR who may refer the case to an alternative Head of Department or a more senior officer of the University.
5. Roles and responsibilities
|Manager authorised to act||As detailed in this procedure, line managers, including but not limited to, Heads of Department, will usually deal with complaints or allegations when they become known. They may consult with HR and if necessary appoint an investigatory manager and following receipt of their report be authorised to make decisions in relation to the complaint or allegation.
Manager authorised to hear a disciplinary case and issue a sanction, action or warning. Will lead and direct the hearing and decide if the allegation(s) against the employee are proven, by questioning and challenging all available evidence in order to make an informed, fair and reasonable decision. To decide on the level of disciplinary sanction if appropriate.
|Manager who made the original decision being appealed||May present the case or be a witness to explain the decision being appealed.
May be accompanied by advisor.
|HR representative: member of the HR team usually HR Manager or HR Advisor||The HR representative will provide advice in respect of the application of this procedure. S/he will support the manager in the process of making an informed, fair and reasonable decision. He/she will ask questions at the hearing and challenge evidence where required.|
|Employee||Will answer allegations or complaints made under this procedure. Will be provided with the opportunity to put his/her case at hearing and appeal and provide the necessary information in relation to the appeal. S/he may question the witnesses and/or the presenting manager and may make representations to the appeal officer.Representative or companion|
|Representative or companion||This may be either a Trade Union representative or work colleague. S/he will support and advise the employee, and may address the meeting/hearing to put the employee's case, ask questions or make any representations, respond on the employee's behalf but s/he cannot answer questions that are directly put to the employee.|
|Witnesses||To provide evidence in relation to the matter of the appeal.|
|Note taker||To take notes of the hearing. These will be notes of key points and will not be a verbatim record. The notes will be provided to both parties who will have the opportunity to submit their comments.|
|Appeal Panel||In cases of Dismissal there will be an appeal panel of three senior managers appointed by the Vice-Chancellor, including a chair, who will be a Member of University Executive Board.|
|Appeal Officer (Appeal panel in cases of dismissal)||To lead and direct the hearing, decide if the employee's appeal is justified, by questioning and challenging all available evidence in order to make an informed, fair and reasonable decision.
The appeal officer should encourage all parties to speak freely to establish all the facts and determine if there are any special circumstances to be taken into account.
|Investigatory manager||Manager appointed to investigate an allegation or complaint. At hearing will present the statement of complaint, and all related evidence. He/she will answer questions relating to the investigation and may be required to carry out further investigation as directed by the manager who initiated the investigation.|
|Senior Manager||Member of the University Executive Board, Dean of Faculty, Associate Dean, Head of Support Directorate (Senior Management Group), Head of Department.|
5.1 Individuals involved in specified roles should not be compromised in fulfilling those duties, for example, due to, significant prior knowledge of or involvement in the case or undertaking another role such as witness. If there is any concern from any party regarding potential compromise, this should be raised with the Director of HR.
5.2 If a senior manager is subject to this procedure his/her line manager would be responsible for managing the process and adopting the roles as indicated for Heads of Department.
6.1 Where a formal investigation is required the line manager of the employee who is the subject of the allegation or complaint will appoint an appropriate person to conduct the investigation. If required a member of the HR team will be available to advise and assist the investigatory manager to conduct the investigation.
6.2 The employee will be informed promptly of any allegations, together with details and that an investigation to establish the facts will be undertaken. The employee should also be advised of the name of the investigatory manager. (A letter will be issued advising the employee of details of the allegations and the commencement of an investigation).
6.3 An investigation will normally take place to establish the facts relating to the allegations prior to any disciplinary action being considered. The purpose of the investigation is to:
- Establish the nature of the allegations
- Allow the employee to respond to the allegations
- Gather evidence to enable a decision to be made on whether or not there is a disciplinary case to answer
- Consider if the matter should proceed to a disciplinary hearing or be dealt with via an informal process
6.4 The length of the investigation will depend on the nature and number of allegations being investigated. However, the investigation should be concluded as soon as reasonably possible whilst allowing sufficient time to interview all relevant parties and witnesses, and evaluate all available evidence.
6.5 In cases where the facts are clear and undisputed or the allegations are admitted, a formal investigation may not be necessary. (Line managers should take advice from HR in these circumstances)
6.6 The investigatory manager must contact the employee who is the subject of the allegation as soon as practicable to introduce him/herself, and advise of the likely process and timescales for the investigation. This is an appropriate opportunity for the employee to raise any concerns or ask any questions that he/she may have at this stage and agree potential meeting dates. (A letter will be issued inviting an employee to an investigation meeting). The investigatory manager should keep the employee informed of progress with the investigation and if there is any unexpected delay in the process. The employee who is the subject of the allegation may be accompanied by a representative or work colleague at the investigatory interview, the interview is formal and part of the process to establish if disciplinary action is warranted. Statements that are signed and dated should be requested and produced as soon as reasonably possible following an allegation or complaint.
6.7 Other witnesses (who are not the subject of the allegation) do not have the right to be accompanied at an investigatory interview which should not be unreasonably delayed. However, by agreement the facility to be accompanied may be extended if requested and permission will not be unreasonably withheld.
6.8 The investigatory manager will consider all the relevant facts of the case, interview relevant witnesses and take statements and make a recommendation to the manager (who initiated the investigation) as to whether there is a case to answer and if the matter should be dealt with formally. The recommendation will normally be in the form of a report summarising the process of investigation, nature of the allegation or complaint and the findings. It will NOT be for the investigatory manager to recommend what level of sanction or action is appropriate.
6.9 It is for the manager who initiated the investigation to consider the recommendation and findings of the investigation and decide if there is a case to answer and if there should be a formal hearing.
6.10 The investigatory manager will normally present the findings of the investigation at a formal hearing.
7. Formal procedure hearings
7.1.1 If it is decided to proceed to a hearing the employee will normally be given ten days notice and invited in writing to attend a hearing. The notice will specify the manager who will conduct the hearing. The employee will be provided with details of the allegation(s) and an indication as to whether the alleged misconduct is considered as potentially a serious/gross misconduct case and therefore whether a sanction less than or up to dismissal may be considered.
7.1.2 The manager will organise and conduct the hearing and may be accompanied by a HR representative; if a potential outcome is dismissal there will always be a HR representative present. The purpose of the hearing is to provide the opportunity for the employee to respond to allegations or complaints made under this procedure.
7.1.3 Prior to the hearing, the parties (i.e., the employee concerned and the person who is to present the management case) will submit to the manager conducting and hearing the case the names of any witnesses and an explanation of why their evidence is required together with any written submissions they wish to have considered and a copy of any documentary evidence they intend to rely on at the hearing. They will do so as soon as reasonably practicable and not less than five working days before the date set for the hearing to allow for an exchange of documents between the parties.
7.1.4 On the basis of the information submitted, the manager conducting and hearing the case will determine whether or not such witness evidence is required and will confirm the witnesses to be called. The manager may request additional witnesses but as s/he will only be able to consider this shortly before the hearing, notification may be given at the hearing.
7.1.5 Employees are responsible for making arrangements for their witnesses to attend. Where witnesses are employees of the University, appropriate time off will be facilitated.
7.2 Conduct of the hearing
7.2.1 The manager conducting and hearing the case will introduce those present and explain the process that will be undertaken and encourage those present to speak openly.
7.2.2 Requests for adjournments may be made by any party.
7.2.3 If a witness is called by any party to the hearing s/he will be invited to attend the hearing at an appropriate time.
7.3 Presentation of the case
7.3.1 The presenting manager will present the findings from the investigation, call witnesses, and question them and the employee in relation to the allegation or complaint. The presenting manager should:
- state clearly what the allegation/s are
- outline the case by going through the evidence that has been gathered
- call witnesses if appropriate
- answer questions that relate to the investigation and its outcome.
7.4 The employee
7.4.1 The employee or his/her representative will present his/her case, question witnesses and raise any issues s/he wishes to have considered.
7.4.2 The employee or his/her representative should:
- state his/her case and respond to answer any allegations that have been made.
- ask questions and present any evidence in support of his/her case
- call witnesses if appropriate
7.5 The manager conducting and hearing the case
7.5.1 The manager conducting and hearing the case should:
- Use questions to clarify the issues and to check that what has been said is understood.
- encourage the employee to speak freely to establish all the facts
- establish if there is any explanation for the alleged misconduct
- summarise the main points of the discussion after questioning is completed
- ensure all evidence and points for all parties have been put forward
- establish if there are any special circumstances to be taken into account
- ask the employee if they have anything further to say or to be taken into account
7.5.2 The manager conducting and hearing the case will be able to question all those involved. S/he will consider all representations then decide if (on the balance of probabilities) the allegation(s) are found and if so what level of sanction, including and up to dismissal is relevant.
7.5.3 Adjournment - Before a decision is taken an adjournment allows the manager time for reflection and proper consideration of the available evidence and facts of the case. If new facts have emerged or there is any dispute over facts, it may be necessary to adjourn the hearing in order to investigate them and reconvene the hearing at a later date when this has been completed. Any new evidence must be shared with both parties prior to the reconvened hearing.
7.5.4 Hearing outcome - If the hearing highlights that the employee has provided an adequate explanation or there is no real evidence to support the allegation or complaint, then the manager should advise the employee that there is no case to answer and bring the proceedings to a close.
7.5.5 If the manager concludes that the allegation or complaint is proven s/he can issue the appropriate sanction as detailed in section 7 of the procedure.
7.5.6 The decision may be given verbally at the hearing and will in any case be conveyed or confirmed in writing within five working days of the hearing. Where it is not possible to give a decision at the hearing the employee will be advised of the delay.
7.5.7 The correspondence shall also notify the individual employee of his/her right to appeal against any sanction. In the event that the decision is taken to dismiss the employee, the correspondence will include the reasons for dismissal and the date that his/her employment will terminate and any notice arrangements.
8.1.1 The employee can appeal against the outcome of any formal stage under this procedure and must submit in writing his/her grounds for appeal to the Director of HR within ten days of receiving the written decision.
8.1.2 Appeals will normally be heard within thirty working days of the notice of appeal.
8.1.3 Appeals can be made on the following grounds
- The procedure was unfair, and/or the correct procedure was not followed.
- The decision was unfair or perverse because the evidence did not support the decision
- The action taken against the employee was too severe
- There is new evidence that was not available at the original hearing to support the employee's case
8.1.4 HR will notify the parties (i.e., the employee concerned and the person who is to present the management case) involved of the date of the appeal hearing a minimum of ten days prior to the meeting.
8.1.5 The parties will send to HR the names of any witnesses and an explanation of why their evidence is required together with any written submissions they wish to have considered and a copy of any documentary evidence they intend to rely on at the hearing. They will do so as soon as reasonably practicable and not less than five working days before the date set for the hearing to allow for an exchange of documents between the parties.
8.1.6 On the basis of the information submitted, the Appeal Officer1 will determine whether or not such witness evidence is required and will confirm the witnesses to be called. The Appeal Officer may request additional witnesses but as s/he will only be able to consider this shortly before the hearing, notification may be given at the hearing.
8.1.7 Employees are responsible for making arrangements for their witnesses to attend. Where witnesses are employees of the University, appropriate allowances should be made to facilitate this.
8.1.8 HR will send the names of any witnesses to be called and copies of any written submissions and documentary evidence to all parties as soon as these have been exchanged.
8.1.9 If the appeal is against a warning, sanction or action less than dismissal, the appeal will be heard by an appeal officer. If the appeal is against a decision to dismiss, the appeal will be heard by an appeal panel of three senior managers.
8.1.10 The appeal officer/panel will have the authority to reach the following conclusions or to make other recommendations:
- Confirm the outcome and decision of the original meeting
- Uphold the appeal of the employee if there is evidence to prove the case is not proven or if the conduct of the procedure has been unfair2
- Apply a lesser sanction than that originally imposed
- Adjourn the appeal due to new evidence which requires further consideration
- Recommend a rehearing, in consultation with HR, as a result of significant new evidence put forward during the appeal hearing
8.1.11 If the appellant considers that any sanction given at appeal is more severe than that originally imposed, the employee can make representation to the Appeal Officer/Chair of the Appeal Panel in writing within ten days of receiving notification of the outcome. The Appeal Officer/Chair will consider those representations and determine whether the original sanction should be reinstated.
8.1.12 The outcome of the appeal will be final and there will be no further internal right of appeal. Any dismissal under this procedure will remain in force pending the outcome of any appeal.
8.2 Conduct of appeal hearing
8.2.1 The purpose of the appeal hearing is to establish if the finding of the disciplinary hearing was appropriate and procedurally correct.
8.2.2 Requests for adjournments may be made by any party.
8.2.3 If a witness is called by any party to the appeal s/he will be invited to attend the hearing at an appropriate time. It is not anticipated that witnesses will be required to attend other than to give his/her statement.
8.3 Appeal procedure
8.3.1 The appeal officer (or chair of the appeal panel) will open the hearing with introductions and explain:
- those present and their roles
- the purpose of the meeting is to consider the employee's case for appeal against the University's procedure
- how the meeting will be conducted
- what the possible outcomes of the hearing are
8.3.2 The employee or his/her representative will first present, stating his/her case for appeal and any evidence in support of the case. Witnesses may be called and questioned by the employee and the other parties to the appeal.
8.3.3 The manager presenting the University case and his/her advisor will present the reasons why the original decision was taken and call any witnesses. Questions may be put to the presenting manager and any witnesses as above.
8.3.4 The manager presenting the University case will make a final submission and then the employee will make his/her final submission.
8.3.5 If new facts have emerged or there is any dispute over facts, it may be necessary to adjourn the appeal hearing in order to investigate them and reconvene the hearing at a later date when this has been completed. Any new evidence must be shared with both parties prior to the reconvened hearing.
8.3.6 When the appeal officer has all the relevant evidence s/he will consider his/her decision after those presenting have withdrawn. This adjournment before a decision is taken allows the appeal officer time for reflection and proper consideration of the case for appeal and any additional evidence that has been presented.
8.3.7 The decision of the appeal officer may be conveyed verbally to the employee after a period of adjournment unless the appeal officer requires more time for reflection and consideration. The decisions will be conveyed (or confirmed) in writing within ten working days of the hearing. The correspondence will contain the reasons for the appeal officer's decision as to whether the employee's appeal is upheld.
These guidelines must be read in conjunction with the disciplinary procedure.
Reference should be made to HR if there are any further queries.
- Throughout the guidelines the term Appeal Officer is used. It is recognised that it will be an appeal panel in cases of dismissal where the same procedure will apply.
- It may be appropriate in such circumstance to recommend a rehearing
- Last reviewed: 31 May 2011