HR conference for school leadersManaging misconduct workshop

Managing misconduct

Paul Miner, HR Consultant, Browne Jacobson LLP11 October 2016

Setting expectations and what a fair process looks like

Purpose of today’s sessionTo improve your knowledge and confidence to deal with issues of employee misconduct by:

•understanding the law and good practice on employee misconduct

•setting expectations and rules

• knowing the steps to be taken in a fair process

• appreciating the risks of getting things wrong

• interaction and Q&A

Terminology

What is misconduct?

• no legal definition of misconduct – it’s up to the employer to define

• policies and rules define what type of conduct the employer regards as misconduct and gross misconduct

• communicate these definitions to all employees when they start work and throughout employment

Misconduct v Lack of capability• both result in poor performance

–misconduct – within employee’s control–lack of capability – outside employee’s control

• misconduct is any behaviour or conduct that falls below required standard

• it is the employer’s standard, policy or rule that is relevant when assessing misconduct rather than manager’s subjective opinion

What is gross misconduct?

• gross misconduct is misconduct of such a serious nature that it fundamentally breaches the employer/employee contractual relationship

• entitles employer to dismiss the employee summarily

Over to you…Here is an example of gross misconduct:

• theft of school property

Can you think of some others?

Summary dismissal• without notice or pay in lieu of notice• takes effect immediately• employee’s contractual rights and benefits cease• irrespective of severity of misconduct don’t assume

dismissal will be fair• on the spot dismissal almost always unfair• always follow required procedures before taking a

decision to dismiss

Disciplinary rules and procedures

Employees…

• need (and like) to know what the rules are

• need to know what will happen if they break the rules

• want to see that you are fair and consistent in the application and management of the rules

Disciplinary RulesDisciplinary rules are useful because they set standards and make it clear to employees what conduct is not acceptable

Rules can be found everywhere!• in policies and procedures• in the employee’s contract• in the organisations protocols and practices• in management briefings/instructions• in external guidance, statute etc.• in the disciplinary procedure

Disciplinary procedures• you must have one. Employee’s Statement of Main

Terms must refer them to it and where they can find it• sets out how you will deal with employee misconduct –

fair and consistent treatment for all• no legally required structure but usual for three stage

hierarchy of warnings prior to dismissal, e.g. formal verbal warning written warning final written warning dismissal

Dos and Don’tsDo Don’t Make sure you are familiar and

fully understand your disciplinary procedure

Apply the rules and procedures inconsistently

Ensure your staff know the rules and penalties

Make sure rules and procedures are communicated to all staff

Tackling misconduct

AllegationsWhere do they come from?

• direct observation/knowledge

• informants• colleagues• students• parents• outside people

Informal approach• good first step in the event of minor misconduct, e.g.

timekeeping• line manager to hold informal meeting with member of staff• ensure member of staff understands why his/her conduct is

unsatisfactory• seek agreement on making sure behaviour does not

continue/recur• set a date to review progress/conduct• keep a record/issue letter of advice• don’t continue with informal approach if no improvement –

move up a gear to formal

Formal approach

Follow procedure:

first step – investigate

Investigations

Investigation• keep it proportionate• some initial investigation may lead to swift resolution• fact finding• interviewing witnesses and employee• checking rules, procedures, expectations, previous

disciplinary record etc.• determine whether there is a case to answer• investigation report

What is the standard of proof?

1. your investigation must be ‘reasonable in all the circumstances.’

2. the conclusions drawn and decisions made will be based on the ‘balance of probabilities.’

Is the allegation related to safeguarding?

• ensure DSL is aware• contact LADO• consider LADO’s advice• consider if suspension is necessary

Read and follow statutory guidance

Keeping Children Safe in Education 2016

Suspension• suspension not a disciplinary sanction or

prejudgement

• neutral action

• keep suspension under regular review and as short as possible

• usually appropriate in cases of alleged gross misconduct

Disciplinary Hearings

Disciplinary Hearing

• confirm in writing to employee• advise them of their right to be represented• make allegations clear• let them know the possible outcomes• include all paperwork that you will rely on at the

meeting• explain your position on witnesses• be mindful that you may need to re-arrange once

Disciplinary HearingMain purpose is to give the employee the opportunity to:• explain/state case• make representations• offer mitigation

… before deciding whether or not to impose a disciplinary sanction and at what level

Disciplinary Hearing• make sure you follow a clear running order

– investigating Officer presents first– employee statement of case– witnesses– cross questioning– opportunities to summarise

• at the end summarise salient points• adjourn to make decision• communicate outcome to employee verbally then in

writing • right of appeal

Making the decision

• consider all of the information – written and verbal• what evidence supports or does not support

allegations?• how reliable is the evidence?• what is the mitigation / explanation?• has the employee acknowledged their conduct?• are the allegations misconduct or gross misconduct?

Right to be accompanied• legal right for employee to be accompanied at

disciplinary hearing but not investigatory meeting (unless in policy)

• companion can be TU representative or fellow worker – beware friends/relatives

• companion may not respond to questions

• unavailability of companion is reason for one postponement

Disciplinary Outcomes

Outcomes• need to be proportionate

• need to be reasonable in the circumstances

WarningsA formal warning should:

• explain the misconduct• acknowledge the explanation or mitigating

circumstances• state the improvement required• state what will happen if misconduct repeated• specify how long the warning will remain ‘live’• give details of appeal rights – by when/to whom etc.• be recorded

Shelf life of warnings• warnings active for disciplinary purposes for defined

period of time• no time periods laid down in law – up to employer• adhere to time periods set out in disciplinary

procedure• if misconduct occurs while warning active step up to

next level• after time period warning lapses – but not necessary

to remove from file

Dismissal• following series of formal warnings, and if misconduct

continues, then dismissal may be appropriate (‘totting up’ procedure)

• dismissal last resort• ideally a different manager stepping in to chair

dismissal hearing• dismissal without warnings unfair unless gross

misconduct• appeal rights

What makes a dismissal fair?• a fair reason to dismiss, e.g. conduct

• follow a fair procedure

• was it reasonable to dismiss for that reason?–“band of reasonable responses”

• remember unfair dismissal and redundancy requires two years’ service

ACAS

Why it is important to get it right

• being a good employer• unfair dismissal compensation limits

basic award: £14,370compensatory award: £78,962 or 52 weeks’

pay**lowest value applies

• discrimination claimsno capinjury to feelings award

• breach of contract claims

ReferralsCriteria differ

•DBS – considers cases that concern safeguarding matters, i.e. harm or risk of harm to a child. Can bar an individual from working with children and vulnerable adults.

•NCTL – considers cases where a teacher’s conduct is incompatible with being a teacher. Can prohibit a teacher from undertaking unsupervised teaching

work in schools •(think teachers’ standards)

Any questions?

Further information www.brownejacobson.com/education

Contact us

Paul Miner0121 296 0666paul.miner@brownejacobson.comwww.brownejacobson.com/education

Please noteThe information contained in these notes is based on the position at March 2016 . It does, of course, only represent a summary of the subject matter covered and is not intended to be a substitute for detailed advice. If you would like to discuss any of the matters covered in further detail, our team would be happy to do so.

© Browne Jacobson LLP 2016. Browne Jacobson LLP is a limited liability partnership.