The Company always tries to deal with disciplinary issues fairly and promptly. This procedure sets out the framework under which allegations of misconduct will be investigated and considered. While the procedure set out in this policy will be appropriate in most cases, there may be situations in which it is not practicable to comply with a particular requirement of it. When this happens, the Company will do its best to deal with the matter fairly and will pay particular attention to the need to give you every opportunity to explain your version of events.
The Company reserves the right not to follow this procedure in full for employees who are within their first two years of employment with the Company.
Definition of Misconduct
Behaviour which is disruptive, disrespectful to colleagues, or which falls short of the requirements set out in this Handbook will be treated as misconduct under the disciplinary procedure. While you will not usually be dismissed for a first offence, a failure to remedy the behaviour or to adhere to required standards may ultimately lead to dismissal once appropriate warnings have been given.
Definition of Gross Misconduct
Gross misconduct is behaviour which is fundamentally at odds with your duty to the Company and your colleagues. In accordance with the disciplinary procedure, gross misconduct will usually result in dismissal without notice, or payment in lieu of notice, even in cases of a first offence.
It is not possible to list every example of gross misconduct which may arise, but the following provides an illustration of the sort of conduct that will normally fall into this category – some of which are then explained in more detail below:
- Persistent lateness or repeated unauthorised absence;
- Deliberately failing to attend work without proper excuse or in breach of management instructions;
- Theft;
- Fraud, forgery or other dishonesty, including fabrication of expense claims and time sheets;
- Unlawful discrimination, harassment, including sexual harassment, or victimisation;
- Refusal to carry out reasonable instructions;
- Violent or intimidating behaviour;
- Wilful damage to property;
- Causing loss, damage or injury through serious negligence;
- Serious misuse of the Company property or name;
- Serious insubordination;
- Reckless behaviour posing a risk to health and safety;
- Any act or omission constituting serious or gross negligence/or dereliction of duty;
- Sleeping on duty;
- Bringing the organisation into serious disrepute;
- Unauthorised use or disclosure of confidential information or failure to ensure that confidential information in your possession is kept secure;
- Recording audio and/or video of any meeting, conversation or discussion with another person or people without the express prior consent of the person or people being recorded;
- Making untrue allegations in bad faith against a colleague;
- Making a disclosure of false or misleading information under the Company Whistleblowing Policy maliciously, for personal gain, or otherwise in bad faith;
- Repeatedly working from home contrary to the terms of your employment contract and without the prior written approval of management;
- Failing to work your contractual hours while working from home or as part of a hybrid working arrangement, or giving false or misleading information relating to your hours of work and activities while working from home;
- Any illegal act during working time or on Company premises;
- Failing to follow a Company policy or procedure when this could have serious consequences, eg safeguarding, child safety, health and safety; and
- Any act described as gross misconduct elsewhere in this Handbook.
Dishonesty
It is important to stress that any form of dishonesty, however minor, will be regarded as gross misconduct. This includes theft of property, whether belonging to the Company, colleagues or any third party. However, it also includes you seeking to gain any advantage through deception – such as making a false claim for expenses or overtime, falsely claiming to be sick or falsely claiming to have completed a particular task.
It does not matter if any amount of money at issue is small. The Company regards any dishonesty by you as gross misconduct which will usually result in dismissal.
Refusal to carry out instructions
The Company expects you to work in a spirit of cooperation with your colleagues and managers for the good of the business as a whole. You are required to carry out your managers’ instructions and a deliberate and wilful refusal to do so will be gross misconduct.
If you believe that you have been instructed to do something that does not fall within your duties or which is in some other way unreasonable then the appropriate way of dealing with this is to raise a grievance under the grievance procedure (see Policy 19). However, doing so will not prevent a refusal to carry out an instruction from amounting to gross misconduct if it is found to have been a reasonable one in all the circumstances.
Informal Action
Most minor acts of misconduct can be dealt with informally through discussions between you and your nursery manager. This may consist of management guidance or an informal warning given orally or in writing. These steps are an everyday part of the management process and no formal procedure needs to be followed in respect of them.
Where informal action of this kind fails to resolve an issue, or where the misconduct alleged is considered too serious, then the matter will be dealt with formally under this procedure.
Investigation
If it is alleged that you have committed misconduct, an appropriate investigation will be carried out aimed at gathering all of the relevant evidence. You may be interviewed as part of this investigation and will have the opportunity to point the investigator towards any evidence that you feel is relevant. The right to be accompanied (see below) does not apply to any investigatory interview.
You will be given reasonable prior notice of any investigation meeting. This notice will include details of the time, date, location, and purpose of the meeting.
Suspension
If an allegation of misconduct is made against you, then you may be suspended from your duties on full pay while the matter is being dealt with. The Company will make every effort to ensure that any period of suspension is kept as short as possible. The purpose of a suspension is either to allow an unhindered investigation to take place, or to protect the interests of the Company and its employees, and the children. During any period of suspension you may be instructed not to contact other members of staff except for the purposes of preparing for any disciplinary hearing, where specific arrangements will be made with you. This is not a disciplinary sanction and should not been seen as a predetermination of any disciplinary process.
Hearing
Once the investigation has been carried out, the investigating officer will make a decision about whether there is sufficient evidence to warrant a disciplinary hearing. If there is you will be informed of this and an appropriate date for the hearing will be arranged. This will take place within normal working hours wherever possible.
To ensure that you have adequate time to prepare for the hearing, the Company will provide you in advance with a copy of all of the written evidence that will be considered at the hearing. In exceptional cases the Company may need to withhold the identities of certain witnesses or hold back sensitive items of evidence. This will only be done where it is considered necessary to protect individuals or the essential interests of the Company and every effort will be made to ensure that you are given as much information as possible so that a fair hearing can be conducted.
You will be invited to any disciplinary hearing by letter and given sufficient notice of any hearing to allow you to prepare for it. While this will vary from case to case, the Company will generally try to give at least two days’ notice of any hearing and in complicated cases a longer period of notice may be given.
The purpose of the hearing will be to consider the evidence gathered during the investigation and to consider any representations made by you or on your behalf. The hearing will be conducted by an appropriate Senior Manager who, wherever possible, has not previously been involved in the case and who was not responsible for carrying out the investigation.
The Right to be Accompanied
You are entitled to be accompanied at any disciplinary hearing by a fellow employee or trade union official of your choice. The Company will provide any chosen companion with appropriate paid time off to allow them to attend the hearing. It is, however, up to you to arrange for a companion to attend the hearing.
If your chosen companion cannot attend on the day scheduled for the hearing then the Company will agree a new date. This will usually be within 5 working days of the date originally scheduled. If your companion is not available within that timescale then you may need to find someone else to take their place.
The companion’s role is to advise you during the hearing and make representations on your behalf; it is not to answer questions for you. However, both you and your companion are required to cooperate in ensuring a fair and efficient hearing. The companion cannot answer questions on your behalf.
Evidence
The hearing will consider any evidence you choose to present. Should witnesses be prepared to appear on your behalf they will be permitted to do so provided that their evidence is relevant to the issues that need to be decided. The Company will not compel or require any employee to appear as a witness on your behalf and in most circumstances evidence arising from the investigation will be presented in written form. You will be entitled to challenge any of the evidence presented but will not be entitled to cross-examine witnesses.
Disciplinary action
After considering all of the evidence, including any submissions made by you or on your behalf, the manager conducting the hearing will decide on the outcome. If misconduct is found to have taken place then the usual outcome will be a written warning which will be placed on your personnel file.
A warning will stay active for a period of 1 year, after which it will not be taken into account in any future disciplinary action.
If however a further instance of misconduct is found to have occurred (in accordance with this procedure) during the currency of a warning – or if any misconduct is considered to be serious enough to warrant it – then, subject to the formal process above being followed, you will be issued with a final written warning.
A final written warning will usually remain active for one year, but a longer period may be specified if the manager conducting the hearing feels that the circumstances warrant it.
If you are found to have committed further misconduct during a period covered by a final written warning you will, following a hearing conducted in accordance with this procedure, generally be dismissed.
Dismissal
You will not normally be dismissed under this procedure for a single instance of misconduct unless a final written warning is already in place. However, where gross misconduct is found to have occurred then dismissal without notice or payment in lieu will be the usual outcome.
Gross misconduct is misconduct that is so serious that it fundamentally undermines the relationship between employer and employee. If you are accused of gross misconduct this will be made clear when you are invited to a disciplinary hearing. A wide range of behaviours can amount to gross misconduct but the most common involve dishonesty, violent or aggressive behaviour, the wilful destruction of Company property or a deliberate refusal to obey a reasonable instruction. See above for more details.
Appeal
You may appeal against the outcome of a disciplinary hearing by doing so in writing stating your full grounds of appeal within one week of being notified of the outcome. The person to whom an appeal should be directed will be detailed in the disciplinary outcome letter. An appeal hearing will be convened and conducted by an appropriate member of the senior management team.
The appeal will consider any grounds you choose to put forward and you will have the same right to be accompanied as at a disciplinary hearing. The result of the appeal hearing will be final.
Employee Absence
It is important that disciplinary issues are dealt with promptly. The Company may therefore need to proceed with a disciplinary hearing even if you are absent due to ill health or simply do not attend. Before hearing the matter in your absence, the Company will attempt to arrange the hearing in such a way that you will be able to attend or to submit written representations to the hearing and/or to arrange for an appropriate representative to attend the hearing on your behalf.