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Managing misconduct - HR and employment conference for school leaders 2016
The document outlines a workshop for school leaders on managing employee misconduct, covering legal definitions, handling disciplinary procedures, and ensuring fair treatment of employees. It discusses the distinctions between misconduct and gross misconduct, while emphasizing the importance of clear disciplinary rules, investigations, and the procedures for disciplinary hearings. The document also highlights the potential consequences of unfair dismissal and the significance of following established protocols to mitigate risks.
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Managing misconduct - HR and employment conference for school leaders 2016
- 1. HR conference forschool leaders Managing misconduct workshop
- 2. Managing misconduct Paul Miner,HR Consultant, Browne Jacobson LLP 11 October 2016 Setting expectations and what a fair process looks like
- 3. Purpose of today’ssession To 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
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- 5. 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
- 6. Misconduct v Lackof 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
- 7. What is grossmisconduct? • 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
- 8. Over to you… Hereis an example of gross misconduct: • theft of school property Can you think of some others?
- 9. Summary dismissal • withoutnotice 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
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- 11. Employees… • need (andlike) 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
- 12. Disciplinary Rules Disciplinary rulesare 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
- 13. Disciplinary procedures • youmust 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
- 14. Dos and Don’ts DoDon’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
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- 16. Allegations Where do theycome from? • direct observation/knowledge • informants • colleagues • students • parents • outside people
- 17. Informal approach • goodfirst 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
- 18. Formal approach Follow procedure: firststep – investigate
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- 20. Investigation • keep itproportionate • 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
- 21. What is thestandard 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.’
- 22. Is the allegationrelated to safeguarding? • ensure DSL is aware • contact LADO • consider LADO’s advice • consider if suspension is necessary Read and follow statutory guidance
- 23. Keeping Children Safein Education 2016
- 24. Suspension • suspension nota disciplinary sanction or prejudgement • neutral action • keep suspension under regular review and as short as possible • usually appropriate in cases of alleged gross misconduct
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- 26. Disciplinary Hearing • confirmin 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
- 27. Disciplinary Hearing Main purposeis 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
- 28. Disciplinary Hearing • makesure 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
- 29. 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?
- 30. Right to beaccompanied • 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
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- 32. Outcomes • need tobe proportionate • need to be reasonable in the circumstances
- 33. Warnings A formal warningshould: • 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
- 34. Shelf life ofwarnings • 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
- 35. Dismissal • following seriesof 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
- 36. What makes adismissal 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
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- 38. Why it isimportant to get it right • being a good employer • unfair dismissal compensation limits basic award: £14,370 compensatory award: £78,962 or 52 weeks’ pay* *lowest value applies • discrimination claims no cap injury to feelings award • breach of contract claims
- 39. Referrals Criteria 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)
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- 42. Contact us Paul Miner 0121296 0666 [email protected] www.brownejacobson.com/education Please note The 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.