Nurses Disciplinary Proceedings – Things to Beware of!
Nurses Employment Law Guidance
Nurses – Do’s’ and ‘Don’ts
If You Face Disciplinary Proceedings Brought By Your Employer
Nurses who are facing internal disciplinary proceedings often contact the Nurses Defence Service for advice, at short notice, to enquire about what their options are when responding to disciplinary allegations. What do I do? What shouldn’t I do, nurses ask.
Because the outcome of an employer’s disciplinary proceedings might well be used in fitness to practise proceedings before their regulator, the Nursing and Midwifery Council (NMC), we decided to provide a list of things to do and not to do, so as to help nurses navigate the bewildering issues and disciplinary frameworks that are often involved when disciplinary action is taken against them by their employers.
Do Look for and keep all your paperwork relating to your employment
This should include all correspondence sent to you by your employer in connection with the disciplinary proceedings, any written terms of particulars setting out the terms on which you are employed, pay slips, any staff handbook, and any relevant policy documents of your employer. Without that paperwork you and your lawyer will be hampered in evaluating the case against you and what your potential remedies are.
For example, if the employer has issues with you in connection with absence, seek out its sickness absence policy. Most policies contain ‘trigger’ points that entitle the employer to take specified action against you for set number of days’ absence.
If your employer alleges misconduct in respect of your clinical activities, seek out and obtain copies of any ‘code of conduct’ policy document of your employer, get a complete set of protocols that have application to how your employer requires you to care for patients and ensure that you have a copy of the employer’s disciplinary policy and procedure. These documents are essential when you seek to ascertain whether you have a defence to an allegation you face; e.g. your care might be called into question in a situation where what constitutes proper care leave scope for ambiguities and there might be no published protocol on how you were required to care for the patient concerned. If this is so, this might affect both whether the allegation is found proved (an employer’s policies should generally be published before they are taken into account in determining whether misconduct has occurred) AND the sanction if the alleged is proved. This is because if the policy is ambiguous or poorly published, the cause of the misconduct might be attributed by a tribunal in part to significant fault on the employer’s part. This often is recognised by tribunals as a mitigating factor that should be taken into account before a disciplinary sanction such as dismissal is imposed.
Do, after each meeting in the disciplinary process, ask for copies of the employer’s minutes of the meeting and correct them
It is a matter of regret for lawyers how often nurses forget to make an early request for the employer’s notes of meeting that take place.
Many cases turn directly on whether the employer’s notes of meetings are fair and accurate records of what persons present have said. Unless you seek out the notes at an early stage you are unlikely to be in a position to correct inaccuracies in them. Once you have the notes, make proposed amendment, referring back to any notes that you or your companion at the meeting have taken. It is important that you do very soon after the meeting because otherwise you will leave yourself open to an allegation by the employer’s lawyers that your amendments are wishful thinking about what you wish you had said rather than what in fact you said.
Equally, think about the tenor of the meeting; for example, did the line manager chairing it frequently interrupt you, stop you giving your account or raise their voice at you; were you given less opportunity in terms of time to present your defence than the case presenter of the management. If so, these are also matters worthy of note when you propose your amendments.
Think about the ‘ground’ covered by the meeting – if you faced multiple allegations or an allegation involving factual complexity, were you asked about each relevant issue? If you were not, in a covering email when you propose your amended version of the notes you should say what you think the employer missed and give you account of the matter.
Access to such notes is vital because it can enable you at an early stage to identify weaknesses in an employer’s case against you. Any employment tribunal will almost certainly scrutinise the notes closely because, for example, in a discrimination claim they might reveal stereotypical assumptions that an employer makes. In an unfair dismissal case the tribunal will look to them as part of the process of determining whether the employer carried out a reasonable investigation before disciplining the employee.
If the employer refuses to provide the notes at your request, repeat the request informing it that you have a statutory right to the notes because they contain personal data that they are obliged to disclose to you under the Data Protection Act. If they don’t provide them after the request, complain about your employer to the Information Commissioner.
Do read the disciplinary policy and also the ACAS Code of Practice No 1 and associated guide
There are many reasons why you should do this when considering your next move.
To begin with, without the disciplinary policy you are unable to know what time limits are supposed to have application and how the investigation is supposed to be conducted.
Furthermore, if particular provisions in the policy have contractual effect and you believe the employer by contravening them is prejudicing your interests (perhaps by causing excessive delay while you are suspended from work or by carrying out an inadequate investigation) to such an extent that you find remaining with the same employer intolerable, you might want to consider resigning and claiming constructive dismissal. However, in these circumstances it is always worthwhile seeking out legal advice before doing so because complex issues are likely to be involved.
Also, an employer who is in breach of their own policy might well be considered by a tribunal to have acted capriciously and so unreasonably. This can assist you if you decide to bring an unfair dismissal claim even though the disciplinary policy might not have contractual effect.
Once you have read your own employer’s disciplinary policy look then at the ACAS Code of Practice No 1 and associated Guide. You should do this to satisfy yourself that the employer’s policy complies with the minimum standards of acceptable industrial relations set by ACAS because any contravention of the Code (not necessarily the guide) will be taken into account by a tribunal or court.
Do seek expert advice from a lawyer specialising in healthcare regulation at an early stage if the employer warns you that it proposes to refer the alleged misconduct to the NMC
The reason for this is fairly obvious. The sooner you get such advice the better placed you will be to defend any allegation that your fitness to practice is impaired or prepare mitigation that might reduce the severity of the sanction in the event that the NMC find impairment. Not all employment lawyers have experience in healthcare regulation. The Nurses Defence Service employment and regulatory law teams have experience of both areas of law.
Do make inquiries of your union and any legal expenses insurer (LEI) that you might have cover for in respect of the legal costs in bringing a claim
Employment tribunal claims can be expensive. Legal aid is very rarely available in employment law proceedings, but certain employment law appeals might be covered, in certain circumstances. It is worthwhile checking whether you have cover and if you do, whether the scope of that cover is adequate. Bear in mind that most Legal Expenses Insurers (LEI) have policies that prevent you from claiming your costs retrospectively so the sooner you notify your insurer the better it is. Some LEI companies seek to divert you to ‘panel’ firms that might not provide you with adequate assistance. However, if you are concerned that they are not providing you with an adequate service or you would prefer to use your own nominated experts, once the case has been brought your wishes should generally be respected. For further information, please visit the Financial Ombudsman web site. Check also the provisions of your household insurance policy.
Don’t forget that if you are contemplating resigning with a view to avoiding proceedings before the NMC, this is often unlikely to result in your desired outcome
Regulators once notified of allegations of misconduct have a duty to investigate them. If you resign, it is improbable that your employer will halt proceedings or choose not to refer the matter if it is indeed seriously considering referring the matter to the regulator. Often the employer’s investigation will proceed after you have resigned. If you do not cooperate with that investigation, the result is often that your side of the story is not put to the NMC when it looks at the allegations for the first time.
Of course, there might be very good reasons why you do not want to cooperate with the investigation or remain employed. However, you should seek out advice before resigning.
Don’t forget that tight time limits apply to bringing employment tribunal claims – in most cases 3 months
Therefore, if you want to ensure that any claim you might wish to bring is not time-barred, seek out legal assistance at an early stage.
Don’t forget to record the basis of your grievance with your employer in your resignation letter and any earlier correspondence sent to it if you are contemplating a constructive dismissal claim
Barristers cross-examining employees suing for constructive dismissal invariably focus on the letter of resignation if it is uninformative about the employee’s reason for resigning – this will leave you open to the suggestion that you had no real grievance with the employer at the date of your resignation and that your resignation was not caused by intolerable behaviour on your employer’s part. Accordingly, it is always prudent for employees to seek out advice if they are unsure about what they should put in their resignation letters and yet might wish to bring a legal claim in respect of the termination of their employment.
Don’t forget to identify to your employer witness who might help your case
Once you have identified witnesses if your employer does not interview them or call them to the disciplinary hearing, this will provide you with an opportunity later on to criticise the scope of the investigation. Frequently, employers make it a term of the investigation or your right to suspension with pay that you do not attempt to contact witnesses yourself. However, a restriction of this sort will rarely be regarded by a tribunal as reasonable if the employer has already spoken to them because it is hard for it in those circumstances to say that you have interfered with the investigation. If you have doubts about what your employer’s response might be, ask the employer whether it has a witness policy and for a copy if it does have one.
Don’t forget to ask for more time if your employer tries to rush you into attending a disciplinary hearing and you have little time to prepare
Normally, disciplinary policies specify a minimum amount of notice that must be given before a disciplinary hearing takes place. Sometimes there is a substantial amount of evidence that the investigator proposes to rely upon which is disclosed only shortly before the hearing. If you are left with inadequate time to seek out advice whether from you lawyer or you trade union representative, you should seek an extension of time so that you have an adequate opportunity to present your case. In you are given an inadequate opportunity, this is likely to be conduct that will lead an employment tribunal to criticise your employer.T Oxton, Employment Law Lawyer
Nurses Defence Service
For more information about Nurses Disciplinary Proceedings Law and general Employment Law for Nurses contact without obligation our nurses employment law specialist team. Or Read More about Nurses Employment Law.
Call Nurses Defence Service on 0800 01 22 506