Disciplinary Hearings and Nurses

Nurses and Disciplinary Hearings

DISCIPLINARY HEARINGS, an article by Penny Maudsley, Barrister and Ex Nurse, Ex Midwife.

 Disciplinary hearings are a formal method of dealing with concerns raised about an employee.

The concerns may be raised informally by discussing matters with the employee to see if matters can be resolved before proceeding with the more formal disciplinary procedure.

Where this is not possible to resolve the matters by talking directly to the employee on an informal basis, they should consider using an independent third party to help resolve the problem. This is known as mediation.

However, if matters cannot be resolved informally, an employer may take action against an employee for complaints of misconduct, poor performance or possibly capability.

Examples of misconduct are lateness, absenteeism, failing to follow policies, misuse of property or facilities, bullying or harassment or insubordination. Concerns do not necessarily occur in work. Matters may arise outside the work setting.

Far more serious concerns, amounting to gross misconduct, include concerns such as theft, fraud, violence, serious insubordination or sexual inappropriateness.

When a concern is raised, an employer must act fairly, consistently and within a reasonable timeline.

Employers should follow the ACAS Code of Practice for disciplinary procedures issued under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992 https://www.acas.org.uk/acas-code-of-practice-on-disciplinary-and-grievance-procedures and https://www.acas.org.uk/sites/default/files/2024-08/discipline-and-grievances-at-work-the-acas-guide.pdf

If a case proceeds to an employment tribunal, judges will consider whether the ACAS Code has been followed. Tribunals will also be able to adjust any awards made in relevant cases by up to 25 per cent for unreasonable failure to comply with any provision of the Code.

The facts must be established. This may be straightforward or require further investigation such as a ‘wait and watch’ approach.

The employer should appoint an independent investigator for an unbiased view and for transparency.

There must be a thorough investigation completed. The employee must be informed at the earliest opportunity of the allegations against them.

Suspension during an investigation may be appropriate for concerns of gross misconduct or where vital evidence could be lost or removed. Suspension may also be appropriate if there is a risk of witness intimidation should the employee remain at work. Suspension should be kept as short as possible.

If an employee is suspended it should be clear that this does not mean that disciplinary action has been taken, it is merely an interim measure.

The employee will be invited to a fact-finding meeting as part of the investigation.

After investigation, having considered the information gathered, if the employer considers there to be a case to answer the employee must be informed without delay that there will be a disciplinary hearing.

The employee must be told of the nature of the allegations, given any relevant information, be advised of the possible consequences and be provided with copies of the evidence gathered and any witness evidence.

The employee must be advised of the date, time and venue of the disciplinary hearing.

The employee must be advised of their right to be accompanied by a trade union representative, colleague or a person employed by a trade union. An employee may be accompanied by a lawyer if permission is sought from the employer. The employee must inform the employer of who is accompanying them. If the chosen representative is not available for the hearing the hearing must be postponed, (ACAS Code of Practice paragraph 38).

The disciplinary hearing should be held within 5 days as this is the timeframe considered appropriate to be able to prepare the responses.

At a hearing, the employer will take into consideration facts such as; whether this is the first time a concern has been raised about an employee, the severity of the complaint or whether it has been upheld at the investigation stage.

The employer must consider any rules relevant to the organisation, any similar cases and the outcomes, whether there is a possibility that this employee has been singled out.

The employee’s disciplinary record, experience, the position held, and length of service will also be important factors to consider.

Any mitigating or special circumstances will also be relevant.

The employer should consider whether any training is required to remedy the concerns.

At the hearing the employer will be allowed to present their case.

The employer should explain the employee’s alleged issues and go through the evidence.

There should be a note taker at the hearing.

The employee should be given the chance to set out their case, answer any allegations, ask questions, present their own evidence and call relevant witnesses.

The employee must choose what role the representative takes.

The representative for the employee can present the case on behalf of the employee but is not allowed to answer questions directed at the employee.

The representative can respond to the points raised by the employer and sum up the case. The representative can confer with the employee during the hearing and give legal advice, if they are there with permission as a lawyer.

If the employee has submitted a grievance against the employer, the disciplinary hearing will not proceed until the grievance has been resolved.

After the disciplinary hearing has been completed, the employee must be informed of the outcome.

For a first offence, there could be a verbal or first written warning valid for 6 months. These are usually for minor matters which were admitted or can be easily remedied.

ACAS recommends that a written warning should state what offence has been committed, what improvements are expected and the timescale in which changes are expected.

If there is further misconduct or a failure to improve, there may be the option to demote or impose a further penalty.

For more serious concerns, or failure to improve, a final written warning may be imposed. This may be valid for up to 12 months.

For gross misconduct, immediate dismissal is appropriate. The employee must be given reasons, the date the contract ends, relevant notice and that the employee has a right to appeal. Only a person with the authority to dismiss is able to dismiss an employee (ACAS Code of Practice, paragraph 22)

An appeal should be lodged within 5 days of the decision and provide grounds of appeal.

The appeal should be convened without delay at a suitable time and place.

The appeal should be considered by somebody who was not involved in the original disciplinary hearing.

There is a right to be accompanied as before.

The outcome should be notified without delay.

Other Guidance:

The Dos and Don’ts at Disciplinary Hearings

If you are a nurse facing a disciplinary hearing, contact Nurses Defence Service for assistance. Call Nurses Defence Service on 0800 01 22 506