The following has been supplied by PCS DWP Group:
PCS
defends procedural fairness
DWP Discipline Policy, Procedure and Advice have
been revised following consultation but not agreement with the Departmental
Trade Union Side (DTUS). The revised procedure is effective from 14th October 2013.
Changes have been introduced to align DWP procedure with Civil Service Employee
Policy (CSEP) for discipline.
The primary purpose of the discipline procedures is
to help and encourage employees to improve rather than just a way of imposing a
punishment. The first paragraph of the new Policy confirms this primary
purpose.
Disciplinary guidance was improved during consultation
by DWP with DTUS to meet specific standards for procedural fairness. The revised
guidance and procedural requirements for disciplinary action in DWP is
published on the DWP HR intranet site as Policy, Procedure and Advice with the
following ‘How to’ guides:
- Hold a formal discipline or grievance meeting
- Investigate discipline and grievance cases
- Deal with breaches of information security
- Assess the level of misconduct and decide a discipline penalty.
Transitional
arrangements (Procedure 80)
If
managers are in the middle of action under the old process on 14/10/13, they must complete the investigation using
that policy. Discipline penalties applied
on or after 14/10/13 should use the new policy. If an employee
already has an oral warning this will remain live until it expires. If a final written warning has been given
under the old policy and is in the second year of the penalty period, it will
remain live but the line manager will consider whether it should be deemed as
spent should further misconduct occur.
Initial
assessment
The new Discipline Procedure requires two key
initial decisions to be made by the line manager when misconduct is alleged or
suspected:
- The likely level of seriousness
- Whether the action warrants removal or suspension or restriction of duties.
The level of seriousness of misconduct
The line manager should decide in compliance with departmental
guidance what the seriousness of the alleged misconduct is likely to be:
- Minor misconduct
- Serious misconduct
- Gross misconduct.
Examples of each level are given in the ‘How to Assess the level of the misconduct
and decide a discipline penalty’ guide.
Specific breaches of information security examples are in ‘How to Deal
with Breaches of Information Security’.
Suspension/restriction of
duties
In serious cases of
misconduct, suspension or restriction of duties may be appropriate whilst the
alleged misconduct is investigated. Suspension will be with
full pay.
Informal disciplinary action
Instances where minor misconduct is identified
should normally not require the line manager to take formal action.
The matter may be addressed quickly and informally
through, for example, a discussion about expectations and standards of
behaviour or through advice, training, coaching or mentoring.
However, line managers should also advise employees
that further misconduct may lead to formal action being taken in future. A note
of all line management action should be kept securely either electronically or
in hard copy and a copy given to the employee.
The best way of doing this is for the manager to
send the employee a brief summary of the conversation to their DWP email
address marked as private, also stating that the matter has been dealt with
informally.
Formal disciplinary action
In certain instances of minor misconduct, or where
informal action has not stopped further minor misconduct from taking place, it
may be necessary for the line manager to proceed to the formal process. In all
cases of alleged serious or gross misconduct, the formal procedure must be
followed.
Managers should normally seek advice from the HR Expert in all cases relating
to breaches of information security.
Fast track process
DWP asserts that a fast track process, under
Procedure 27, should be appropriate in most cases – i.e. those that are
straightforward, where the evidence is readily available and the facts of the
case are not likely to be in dispute. The fast track process should never be
used for misconduct cases which could result in dismissal.
In fast track cases, a simple fact-gathering
exercise should take place with only the following discipline procedure steps
required:
- the allegations being put to the employee in writing, together with a brief description of the evidence
- a meeting with the line manager who will take the role of Decision Maker, where evidence will be presented and the employee will have an opportunity to present their case together with any mitigation; at this meeting
- the employee has the right to be accompanied by a trade union representative or work colleague and 5 days’ notice will be given
- the line manager will decide whether or not there are reasonable grounds that the specific offence alleged against the employee in the discipline letter is proven. They will advise the employee of the decision and follow this up in writing; this will include an opportunity to appeal.
The fast track process may need to stop if it
becomes evident at any time that the scope of the misconduct is broader or more
complex than originally thought.
Line Managers may not deal with any cases in which
they are implicated (See procedure 44). Countersigning managers or another
independent manager must take charge of the investigation process in these
circumstances.
Further guidance on the fast track process can be
found in Discipline Advice Q&A 4.
Investigatory process
Some misconduct cases will need a formal
investigation rather than just the simple fact-gathering that is suitable for
the fast track process. The aim of the investigation is to collect and record
the facts necessary to decide whether there is a case to answer or not. (See ‘How
to: Investigate discipline and grievance cases’). The line manager would
normally carry out the investigation unless one of the following three circumstances
applies:
Fraud/Dishonesty – Managers should consult Internal
Investigations in all cases involving alleged internal fraud, dishonesty or
other serious wrongdoing. Internal Investigations will either assume
responsibility for the case or give advice. (See Procedure 34-36) The Internal
Investigations Guide for Managers and Staff applies for such cases.
Sensitivity/Complexity – Managers should consult
the HR Mediation & Investigation Service if a non-fraud case appears to be
particularly sensitive or complex. The HR Mediation and Investigation Service
will either assume responsibility for investigating severe, complex or particularly
sensitive cases or give advice. (See Procedure 37)
Other – A line manager may appoint an independent
investigator of equivalent or higher grade to them for other local reasons.
Informing and meeting the employee
Once an investigation is concluded, the next step
is for the Decision Maker to decide, on the basis of all the evidence, whether
or not there is a case to answer. If there is a case to answer, the Decision
Maker will need to take further formal action and should write to the employee
who has been investigated within five working days of receiving the report and
invite them to a formal meeting to discuss the findings of the investigation.
Employees must be told they have the right to be
accompanied at the meeting (Procedure 40-43).
Unbiased Decision Maker
If an investigation shows clearly that the Decision
Maker:
- is implicated in the original allegation of misconduct,
- was the sole witness of the alleged misconduct or
- was the subject of the alleged misconduct,
the case must be referred to the next senior
manager in the Decision Maker’s line management chain, or to a suitable
alternative manager of at least the same grade as the Decision Maker,
consulting the HR Expert as necessary (Procedure 44).
Deciding the outcome
The Decision Maker must decide whether there is
reasonable grounds/evidence that the specific offence alleged against the
employee in the Discipline letter is, in their genuine belief proven, or not
proven. Guidance on deciding the appropriate penalty is in How to: Assess the
level of misconduct and decide a discipline penalty and for information
security cases, in How to: Deal with breaches of information security. The Decision
Maker’s Guide contains guidance on how to consider the evidence.
Mitigation
The Decision Maker should decide whether the case
has been proven or not before taking mitigation into account. Under Procedure
48-49 penalties should be decided after the employee has been given the
opportunity to put forward any mitigating circumstances and after providing
evidence of mitigation where available. Guidance on mitigating factors is in How
to: Assess the level of misconduct and decide a discipline penalty.
Deciding an appropriate penalty
Decision Makers must ensure that penalties are
appropriate to the level of seriousness of the offence. Instances of minor
misconduct do not necessarily merit a penalty. Informal action is not a
discipline penalty. Penalties, under Procedure 50-57, could be the following:
- First written warning. Appropriate in more serious instances of minor misconduct, or when informal action has not stopped further instances of similar minor misconduct. This is valid for 12 months from notification. If there is an existing ‘live’ disciplinary penalty, given before a further act of misconduct, a Final Written Warning is appropriate.
- Final written warning. Usually appropriate when another incident of minor misconduct occurs after a first written warning has been given and is still live or when the misconduct is serious. This is normally valid for 12 months from notification, which could be extended exceptionally following advice from the HR Expert.
- Dismissal. For gross misconduct or when another incident of misconduct occurs after a final written warning has been given and is still live. The HR Expert must be consulted if dismissal is being considered for advice on consistency of decision making.
- Downgrading can be considered as an alternative to dismissal. The employee must sign a declaration that they agree to accept the downgrading. (See Model letter 9). Downgrading can only be considered if a post in the lower grade is available.
How To Assess the level of misconduct and decide a
discipline penalty gives further advice.
For repeated misconduct, penalties will normally
follow in the above order. However, the process is not always sequential and,
depending on the seriousness of the misconduct, a final written warning or
dismissal may be an appropriate first penalty.
Additional Sanctions
Additional sanctions can be imposed if necessary,
but only with the final written warning. See Advice Q&A 27.
Fundamentally flawed cases
In cases where the Departmental Trade Union Side
has serious concerns that either the process followed or the decision is
fundamentally flawed in individual cases, they may put the issue to DWP HR Specialist
Services for advice on how the case could be remedied (Procedure 56).
Right of Appeal
The right of appeal is under Procedure 65-75. The
employee must set out the grounds for appeal in writing and whether they are
appealing against procedural errors; and/or the decision, including cases
where new information/evidence has been
raised that may change the outcome of the original decision.
Appeals on discipline matters must be heard, where
this is possible, by someone senior to the person who made the decision being
appealed. If this is impossible due to operational circumstances, or for some
other reason, the appeal for warnings but not dismissals may exceptionally be
heard by a manager at the same level as the Decision Maker.
The Appeal Manager must
not be the Decision Maker, the Decision Maker’s line manager or the employee’s
Countersigning Manager unless everyone agrees that they can be.
Appeal
Managers must be demonstrably independent in that they or their line manager
must not have been previously involved in the case so that they are able to
take an objective viewpoint.
Guidance on the Appeal Manager’s considerations
can be found in the Decision Maker’s Guide section 7.
PCS guidance for Branches
Branch Briefing
DWP/BB/126/13 provides guidance on the statutory right to be accompanied at
grievance and disciplinary meetings. Further guidance will be issued on the
process for procedural fairness and the rights of employee’s under the
disciplinary process.
David Burke, Group Assistant Secretary
