Employee conduct: NHSScotland PIN policy

2 Main Report

2.1 Strategic Framework/Organisational Culture

2.1.1 Where concerns arise over potential misconduct, action is required in the interests of both the Board and the employee. A failure to deal with it may adversely affect colleagues and standards of patient care, and as a result other staff may become disillusioned and dissatisfied. Some may even look elsewhere for employment. In this way, the efficiency and the quality of the service can quickly deteriorate.

2.1.2 Supporting employees to work to high standards of conduct, and adopting a fair, consistent and prompt approach where concerns exist that such standards have not been met, will be key to creating the workforce environment where employees are able to deliver results in a supportive environment, and as a result meet the 'person-centred', 'safe' and 'effective' quality ambitions set out within the NHSScotland Quality Strategy²¹.

2.2 Principles & Values

2.2.1 It is important that all NHSScotland Boards have a policy in place which ensures that conduct issues are dealt with in a fair and consistent manner, which provides:

• Assistance to employees to improve wherever possible when such issues arise;
• Firm but fair and consistent means of dealing with conduct issues;
• A means of resolving conduct issues where improvement is unachievable;
• Mechanisms in relation to informing relevant authorities where criminal acts are suspected; and
• Mechanisms in relation to informing statutory regulatory bodies where conduct issues arise, as appropriate.

2.2.2 In order to achieve this, the following principles and values are required:

• Boards' local policies developed in line with this PIN policy must be appropriately communicated to all employees and made readily accessible to them;
• All employees must be made aware of acceptable standards of conduct, and of the need to adhere to such standards;
• Issues of conduct must be addressed at the earliest opportunity and (except in more serious cases) on an informal basis in the first instance before resorting to the formal procedure;
• Issues of conduct must be addressed fairly, consistently and confidentially, irrespective of the position/level within the Board of employees with whom such matters arise;
• Issues of conduct must be addressed in a supportive manner, with every opportunity to improve being offered. Termination of employment on grounds of conduct must only ever be as a last resort; and
• At all stages of the formal procedure, employees will be entitled to be accompanied by a trade union/professional organisation representative or work colleague.

2.3 Roles & Responsibilities

2.3.1 Boards will:

• In partnership with local trade unions/professional organisations, agree a management of employee conduct policy which reflects the parameters provided by this PIN policy;
• Ensure that the local policy is appropriately communicated to all employees and made readily accessible to them;
• Ensure that all employees are made aware of acceptable standards of conduct, and of the need to adhere to such standards. Such standards should be clearly articulated through induction and orientation processes, personal development planning and review discussions, and through effective communication strategies;
• Promote a culture in which good standards of conduct, and special effort by individuals and teams, is acknowledged, encouraged and reinforced;
• Ensure that all relevant staff are sufficiently skilled and competent in implementing the local policy. Joint training on the local policy must be provided for managers and trade union/professional organisation representatives using a partnership model;
• Ensure that specialist HR advice is available to managers involved in implementing the local policy; and
• Subject the local policy to ongoing monitoring to ensure that it is being fairly and consistently applied and that the stated principles and values are being met. The local policy must also be subject to regular review, in partnership, to ensure that any new standards and/or structures are incorporated when necessary and that it remains fit for purpose.

2.3.2 Employees will:

• Ensure that they are aware of the standards of conduct expected of them, and that they seek further guidance if unclear;
• Adhere to the expected standards of conduct;
• Work with managers on any agreed supported improvement plan;
• Comply with any support/monitoring mechanisms put in place; and
• Raise concerns with the appropriate manager where they perceive others not to be adhering to expected standards of conduct.

2.3.3 Managers will:

• Ensure that all employees for whom they are responsible are made aware of the standards of conduct required;
• Ensure that such employees are made aware of and have access to the Board's local policy;
• Ensure that good standards of conduct, and special effort by individuals and teams, is acknowledged, encouraged and reinforced;
• Ensure that they are fully aware of and comply with the provisions of the local policy, identifying and dealing with issues which arise in a fair, consistent, confidential, timely and supportive manner; and
• Ensure that they seek HR advice where necessary and appropriate when dealing with conduct issues.

2.3.4 Trade union/professional organisation representatives will:

• In partnership with the Board, agree a management of employee conduct policy which reflects the parameters provided by this PIN policy;
• Work in partnership with the Board to develop joint training as part of the implementation of the local policy and participate in such joint training;
• Work in partnership with the Board to raise awareness of the benefits of, and the approach to, the management of employee conduct as outlined in the local policy;
• Support their members, including providing representation throughout the formal stages of the procedure, ensuring that their members are aware of their rights and responsibilities under this and other relevant policies; and
• Participate in partnership monitoring, evaluation and review of the local policy.

2.3.5 Human Resources will:

• Develop and deliver, in partnership, training on the Board's local policy for managers and trade union/professional organisation representatives;
• Advise managers on the correct implementation of the local policy; and
• Support employees by providing advice on the local policy.

2.3.6 Occupational Health will:

• Provide timely and comprehensive guidance to managers and support to employees following any referral which requires to be made in the course of managing conduct issues.

2.4 Legal Framework

2.4.1 The purpose of this section is to provide the legal context against which this PIN policy has been developed and to provide a source of reference to Boards where questions arise on areas not covered within the PIN policy. It should be noted, however, that the PIN exceeds minimum legal requirements in a number of respects.

2.4.2 Managers must always seek HR advice when addressing conduct issues, where necessary and appropriate, to ensure compliance with current employment legislation and the Board's local management of employee conduct policy developed in line with this PIN policy.

2.4.3 Employment Rights Act 1996²²

The Employment Rights Act 1996 details a number of different employment rights, including the right not to be unfairly dismissed.

It states that, whether or not a dismissal is fair or unfair (having regard to the reason shown by the employer), will be dependant upon whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee.

It also places a duty on an employer to provide written particulars to an employee within two months of commencement of employment, which must include details of any disciplinary procedure which is applicable to the employee.

2.4.4 Employment Act 2008²³

The Employment Act 2008 introduced new legislation pertaining to how disciplinary and grievance issues must be dealt with.

2.4.4.1 'ACAS Code of Practice - Disciplinary and Grievance Procedures'²⁴

The Employment Act 2008 is supported by the ACAS Code of Practice - Disciplinary and Grievance Procedures.

It sets out the principles employers should follow when dealing with disputes in the workplace.

It encourages employers to seek resolution through informal means where possible.

It states that, whenever a disciplinary process is undertaken, the basic standards of fairness should apply. For example, issues should be raised and dealt with promptly, and employees should be informed of the allegations against them and be given the opportunity to put their case in response before decisions are reached.

Although a failure to follow the Code does not make a person or an organisation liable to proceedings, employment tribunals are legally required to take the Code into account when considering relevant cases.

More comprehensive advice and guidance on dealing with disciplinary and grievance situations is contained in the ACAS booklet, 'Discipline and grievances at work: the ACAS guide'²⁵. Unlike the Code, employment tribunals are not required to have regard to the ACAS guidance booklet. However, it provides more detailed advice and guidance that employers and employees will often find helpful both in general terms and in individual cases.

2.4.5 Employment Relations Act 1999²⁶

The Employment Relations Act 1999 sets out the right of employees to be accompanied at any disciplinary hearing.

If the representative chosen by the employee is not available at the time proposed, the employer must postpone the hearing to an alternative time suggested by the employee, provided that such alternative time is reasonable and falls before the end of five working days after the day proposed by the employer.

2.4.6 Trade Union and Labour Relations (Consolidation) Act 1992²⁷

The Trade Union and Labour Relations (Consolidation) Act 1992 lays down rigid criteria in respect of the disciplining or dismissing of an employee because of their membership or activities in relation to a trade union.

It also allows paid time off for trade union representatives to represent their members involved in disciplinary proceedings. Further guidance can be found in the Facilities Arrangements for Trade Unions and Professional Organisations PIN Policy²⁸.

2.4.7 Equality Act 2010²⁹

In order to comply with the Equality Act 2010, employers must take care to ensure that their approach to dealing with issues of alleged misconduct is not discriminatory, in terms of both the approach adopted, as well as any decisions taken. This includes ensuring that reasonable adjustments are made in the case of those involved who may be considered to have a 'disability' under the Act. Further information is set out within the Embracing Equality, Diversity and Human Rights in NHSScotland PIN Policy³⁰.

2.5 Key Procedural Elements

2.5.1 This section sets out the key procedural elements which will be expected to be included, as a minimum standard, within local policies developed in line with this PIN policy. It is recognised that, beyond this minimum standard, local policies may be further developed, in partnership, to reflect the culture, scale and complexity of the Board (including staff groups, management structures and risks to patients, clients or customers).

2.5.2 Disciplinary Rules

2.5.2.1 Disciplinary rules are established to promote fairness in the treatment of employees, and order in the conduct of employee relations. They also set standards, and enable employees to understand what is expected of them - and the consequences of a failure to observe those standards.

2.5.2.2 Rules cannot easily cover all circumstances. They may vary from workplace to workplace according to their particular operational needs. Therefore, rules necessary for the maintenance of satisfactory standards of conduct will be drawn up and applied locally. However, in general terms, any type of behaviour or conduct at work which falls below the standard required by Boards, or which is in breach of Board policies, may be deemed to be a form of misconduct. Some acts, termed 'gross misconduct', are so serious in themselves or have such serious consequences that the relationship of trust and confidence which is needed between the Board and the employee is damaged irreparably, and therefore may call for summary dismissal without notice for a first offence. Examples of actions which may constitute gross misconduct are contained in Annex C.

2.5.2.3 In addition to the above, all those who are appointed as members to a board of an NHSScotland Board must abide by the Standards of Conduct, Accountability and Openness of NHSScotland (2001)³¹. All employees within NHSScotland Boards, as well as board members, must abide by the principles of these standards.

2.5.3 Informal Approach

2.5.3.1 It is recommended that, prior to invoking local policies developed in line with this PIN policy, managers need to reflect on whether there are ways of dealing with alleged misconduct in a more supportive way.

2.5.3.2 The emphasis should be on a two-way, open and honest discussion, with a view to determining the underlying issues and identifying potential remedies, resulting in a series of commitments on the part of the employee and their manager, with the aim of providing a supportive working environment for employees which seeks to achieve continuous improvement rather than punish mistakes. Managers are responsible for ensuring that such discussions take place promptly where such issues arise, and that they are managed confidentially.

2.5.3.3 Examples of potential remedies may be the provision of training, counselling, OD interventions (such as teambuilding) or recommendations to participate in mediation³². Such informal options may additionally be considered following application of the formal procedure.

2.5.3.4 If the issues continue, the manager should meet regularly with the employee, providing guidance on what is unacceptable, reinforcing what is acceptable and setting targets and timescales for improvement. These meetings should be recorded and a copy kept by both parties in accordance with the rules on record-keeping as set out within this PIN policy, in order to ensure clarity of expectations and commitments.

2.5.3.5 Where the manager has followed the principles of fair and reasonable management, providing support to the employee and monitoring improvement over a reasonable time period, and where there is still insufficient improvement, the manager will advise the employee that the Board's management of employee conduct policy may need to be invoked.

2.5.4 Formal Procedure

Where there has been inadequate improvement, despite having been given initial, informal guidance and support, or in more serious cases, a more formal approach will be required.

2.5.4.1 Timescales

2.5.4.1.1 Boards must ensure that issues are raised and dealt with promptly and that there are no unreasonable delays to setting up meetings/hearings, or in providing decisions or confirmation of those decisions.

2.5.4.1.2 Boards must determine, in partnership, reasonable timescales for each stage of the process, which should meet or exceed the recommended timescales set out within the ACAS booklet, 'Discipline and grievances at work: the ACAS guide'³³.

2.5.4.2 Right to be Accompanied

2.5.4.2.1 Employees have a right to be accompanied by a trade union/professional organisation representative or a work colleague at any investigatory meeting or disciplinary (or appeal) hearing being held under the local policy.

2.5.4.2.2 While there is no right to be accompanied at a meeting to confirm suspension, employees should (where practicable) be given reasonable notice to organise representation.

2.5.4.2.3 Specific to any resulting disciplinary (or appeal) hearing, the role of such a representative will be as follows:

• To prepare, present and sum up the employee's case on their behalf; and
• To provide further information after the employee's response or to respond on behalf of the employee to any views expressed, with a view to providing additional clarity to the case.
• The representative is not permitted to answer questions on the employee's behalf, with the employee being required to personally respond to any specific questions directly.

2.5.4.2.4 Where the employee is a trade union/professional organisation representative, no disciplinary action should be taken without discussion with a full-time official of the appropriate organisation.

2.5.4.2.5 If the representative chosen by the employee is not available at the time proposed for any investigatory meeting or subsequent subsequent disciplinary (or appeal) hearing, the meeting/hearing must be postponed to an alternative time suggested by the employee, provided that such alternative time is reasonable and falls before the end of five working days after the original date proposed.

2.5.4.2.6 In the case of witnesses, they must be offered the opportunity to be supported by a trade union/professional organisation representative or work colleague at any investigatory interview or subsequent disciplinary (or appeal) hearing which they are asked to attend.

2.5.4.3 Suspension

2.5.4.3.1 The use of suspension is not a form of disciplinary action in its own right but it should form part of local policies developed in line with this PIN policy, with careful consideration being given to appropriate circumstances for its use in situations where the allegation poses a risk to clinical, financial or staff governance. In all cases, however, consideration should be given to alternatives to suspension, including temporarily moving the employee to another work area, or considering other duties, where such an alternative removes the identified risk.

2.5.4.3.2 Suspension related to disciplinary investigations will be on full pay and for as short a time as possible. However, where an individual is suspended and subsequently reports as being sick, while the suspension will remain in place, the employee will receive occupational sick pay (according to their entitlement) during the sickness absence period.

2.5.4.3.3 Further guidance relating to suspension can be found in Annex A.

2.5.4.4 Undertaking Investigations

2.5.4.4.1 As soon as an employee's line manager is aware of alleged misconduct, they should contact their local HR department to discuss the matter. This is to ensure that all appropriate informal steps have been taken and to provide guidance on the fair application of the local policy.

2.5.4.4.2 Prior to any disciplinary process, a full and thorough investigation must be carried out timeously in order to establish the facts of the case.

2.5.4.4.3 The manager will inform the employee of the alleged misconduct and advise that there will be an investigation.

2.5.4.4.4 The manager will be responsible for the investigation and will undertake it personally as the investigating officer (except where they are implicated or involved in any aspect of the allegation, in which case they will nominate a representative to act as investigating officer). The investigating officer may be supported by a representative of HR in undertaking the investigation (and in any formal hearings which subsequently result).

2.5.4.4.5 The investigating officer will seek to compile sufficient information and evidence for a management decision to be reached on whether a disciplinary hearing is necessary (i.e. sufficient supporting evidence regarding the allegations).

2.5.4.4.6 The investigation will involve interviewing the individual who is the subject of the investigation and any potential witnesses, and the gathering of any other relevant material.

2.5.4.4.7 The investigating officer will write to individuals according to the locally agreed timescale, setting out:

• The date, time and location of the meeting;
• Who will be attending the meeting;
• The purpose of the meeting; and
• The right to be accompanied.

They must also ensure that all those interviewed have been provided with a copy of the local policy in advance of the meeting.

2.5.4.4.8 All those interviewed should be asked, following the meeting, to provide a written statement (which must be signed and dated) and be given the opportunity to consult with their representative regarding the content of this statement. Individuals may alternatively choose to sign and date the notes of the meeting produced by the investigating officer, where they agree that these are an accurate reflection of the discussion.

2.5.4.4.9 All those interviewed should be advised that meeting notes and any written statements may require to be shared with the individual under investigation and their representative, and other witnesses, as appropriate.

2.5.4.4.10 In the case of witnesses, they should additionally be advised that such meeting notes and written statements may be used as evidence should the issue proceed to a disciplinary hearing (or subsequent appeal) and that they may be asked, by either party, to attend. Where the evidence of a witness is to be used at a subsequent hearing, they must be available to attend (although this could be waived following agreement of all parties), except in cases where such witnesses are not employed by the Board and are not prepared, or are unable, to attend (in which case all effort must be made to obtain a written statement or signed, dated confirmation of any investigatory meeting notes as an accurate reflection of the discussion). Boards may wish to consider the use, where reasonably practicable, of video-conferencing facilities (or equivalent) where this enables a witness to participate in a hearing who might otherwise have been unwilling to do so.

2.5.4.4.11 At the conclusion of the investigation, the investigating officer will make a recommendation as to whether the matter requires to be progressed. In some cases, following investigation, it might be determined that, while the matter does not require to be progressed to a formal disciplinary hearing, the findings of the investigation suggest that sufficient concerns remain which require informal action to be undertaken.

2.5.4.4.12 The employee who is the subject of the case must be advised of any recommendation to progress matters to a disciplinary hearing prior to such recommendation being made.

2.5.4.4.13 Further information regarding the investigatory process can be found at Annex B.

2.5.4.5 Attendance at Disciplinary & Appeal Hearings

2.5.4.5.1 Disciplinary hearings (including appeals) will comprise a Chair (according to the Board's scheme of delegation), and two other panel members (one of whom will normally be a member of the HR department). To ensure impartiality, panel members, including the Chair, must have had no prior involvement in the case. In addition to the employee and their representative, the investigating officer (or disciplinary hearing panel Chair in the case of appeals) will also be in attendance (who may themselves be supported by a member of the HR department). Any witnesses called, by either party, to a disciplinary or appeal hearing will additionally have the right to be accompanied.

2.5.4.5.2 It is recognised that different Boards have evolved to different levels in terms of partnership working. Individual Boards may wish to discuss with their local partnership forum whether a trade union/professional organisation partner could be included in an appeal panel.

2.5.4.6 Schemes of Delegation

2.5.4.6.1 The local policy must clearly identify the appropriate level of management which can issue different levels of warning and those which have specific authority to dismiss employees. The scheme of delegation should also highlight who can hear appeals.

2.5.4.6.2 Given the complexity within each Board, schemes of delegation should be agreed locally in partnership. The basic principle is that whoever hears the disciplinary or appeal hearing must be impartial and have had no prior involvement in the case.

2.5.4.6.3 A sample scheme of delegation is attached as Annex E.

2.5.4.7 Disciplinary Hearing

2.5.4.7.1 According to the locally agreed scheme of delegation, the Chair will be notified of the need to convene a disciplinary hearing. They will be responsible for identifying membership of the disciplinary hearing panel.

2.5.4.7.2 The Chair will also be responsible for ensuring that the employee and their representative are advised in writing prior to the hearing, in accordance with the locally agreed timescale, of the following:

• The date, time and location of the hearing;
• The allegations to be considered;
• The potential outcomes. Where the potential outcome may be dismissal (either summary dismissal due to the severity of the allegations or dismissal with notice, where the allegations are less serious, but there is a relevant live final/first and final written warning on file) this must be stated;
• Who will be attending the hearing;
• The right to be accompanied;
• Arrangements for the exchange of cases; and
• A copy of the local policy.

2.5.4.7.3 In accordance with the locally agreed timescale, the investigatory report will be shared with the panel and Chair, and with the employee and their representative. Similarly, should the employee wish to provide a written statement in support of their case, this should be submitted within the locally agreed timescale following receipt of the investigatory report, and will be shared with the panel and Chair and those presenting the investigatory report. Such cases should include details of any witnesses which either party is calling to the hearing. It is the responsibility of the party calling the witness to inform them of the arrangements for the hearing.

2.5.4.7.4 For many managers the chairing of disciplinary (or appeal) hearings is not a regular occurrence. Annex D provides helpful guidance to Chairs.

2.5.4.8 Disciplinary Hearing Outcome

2.5.4.8.1 Following the hearing, the panel will adjourn to consider the case.

2.5.4.8.2 There are three potential outcomes:

• No case to answer;
• Informal action required; or
• Formal disciplinary sanction required.

2.5.4.8.3 The formal disciplinary sanctions available to the panel are as follows:

• First Written Warning - 6 months;
• Final/First and Final Written Warning - 12 months;
• Alternatives to Dismissal; or
• Dismissal (with notice, as a result of repeated misconduct, or without notice in the case of summary dismissal on grounds of gross misconduct).

2.5.4.8.4 The sanction applied by the disciplinary panel should take into account the seriousness of the allegations against the employee and any mitigation which is offered.

2.5.4.8.5 Previously issued warnings must be disregarded for disciplinary purposes after their expiry. However, consideration may be given to the circumstances which resulted in such warnings being issued where subsequent allegations of misconduct arise, where this can be shown to demonstrate a repeated pattern (although any such reference must be reasonable and appropriate, considering the severity of the earlier matter and the period of time which has since elapsed).

2.5.4.8.6 Where the outcome of the disciplinary hearing is such that dismissal would be an appropriate action, it may be that, following clarity around mitigating circumstances, some form of disciplinary action other than dismissal is deemed appropriate. Any such alternatives should be based on the general principles of equity and consistency, may be subject to review, and will normally be in conjunction with an appropriate level of warning. Alternatives to dismissal may include a permanent or temporary demotion (protection of earnings would not apply in such cases), relocation to another suitable post/location or a period of re-training. Movement into another post (including demotion) will only be an option where it is identified that such a post exists. A post will not be created to facilitate such a move.

2.5.4.8.7 Some acts, termed 'gross misconduct', are so serious in themselves, or have such serious consequences, that the relationship of trust and confidence which is needed between the Board and the employee is damaged irreparably, and therefore call for summary dismissal without notice for a first offence.

2.5.4.8.8 All disciplinary hearing outcomes will be confirmed in writing to the employee and their representative within the locally agreed timeframe. The letter should confirm the following:

• Details of who was present at the disciplinary hearing;
• The allegations considered;
• The hearing outcome (including any disciplinary sanctions issued) and the reason such a decision was taken;
• The date on which any issued warning will expire or, in the case of dismissal, the date on which employment will terminate (recognising, except in the case of dismissal on grounds of gross misconduct, the employee's contractual notice);
• In the case of warnings, the potential consequences of further misconduct prior to expiry of the warning (particularly the potential for consideration of dismissal prior to expiry of a final/first and final written warning);
• In the case of dismissal, any necessary administrative or financial arrangements; and
• Details of the right of appeal.

2.5.4.9 Appeals

2.5.4.9.1 All employees have a right to appeal against any decision taken.

2.5.4.9.2 Details of the right of appeal must be clearly set out within the letter confirming the outcome of a disciplinary hearing, detailing to whom such an appeal must be made and the locally agreed timescale within which it must be lodged.

2.5.4.9.3 The identified Chair, in accordance with the locally agreed scheme of delegation, will be responsible for identifying membership of the appeal hearing panel.

2.5.4.9.4 The Chair will also be responsible for ensuring that the employee and their representative are advised in writing prior to the hearing, in accordance with the locally agreed timescale, of the following:

• The date, time and location of the hearing;
• Who will be attending the hearing;
• The right to be accompanied;
• Arrangements for the exchange of cases; and
• A copy of the policy.

2.5.4.9.5 In accordance with the locally agreed timescale, the employee's appeal case will be shared with the appeal panel and Chair, and with the manager who chaired the earlier hearing and issued the disciplinary sanction against which the employee is appealing. Similarly, in agreement with the locally agreed timescale following receipt of the employee's appeal case, a written case produced by the manager who chaired the earlier hearing will be shared with the appeal panel and Chair and the employee and their representative. Such cases will include details of any witnesses which either party is calling to the appeal hearing. It is the responsibility of the party calling the witness to inform them of the arrangements for the appeal hearing.

2.5.4.9.6 An appeal cannot result in any increase in penalty as this may deter individuals from appealing.

2.5.4.9.7 Following the appeal hearing, the Chair will be responsible for ensuring that the employee and their representative are advised in writing of the outcome. This should include the rationale behind any decisions taken in response to the employee's grounds for appeal. Such a letter should be issued in accordance with the locally agreed timescale. The outcome of the appeal will be final, with no further internal right of recourse.

2.5.4.10 Grievance/Dignity at Work Complaints

Where an employee raises a grievance or dignity at work complaint during a disciplinary process, the disciplinary process may be temporarily suspended in order to deal with the grievance/complaint. Where the grievance/complaint and disciplinary case are related, however, it may equally be appropriate to deal with both issues concurrently.

2.5.4.11 Failure to Engage

There may be occasions when an employee is repeatedly unable or unwilling to attend a meeting/hearing. This may be for various reasons, including illness or a refusal to face up to the issue. In such cases, consideration will require to be given to all the facts before coming to a reasonable decision on how to proceed. Considerations will include:

• Any rules the Board has for dealing with failure to attend meetings/hearings;
• The seriousness of the disciplinary issue under consideration;
• The employee's disciplinary record (including current warnings), general work record, work experience, position and length of service;
• Medical opinion on whether the employee is fit to attend the meeting/hearing;
• How similar cases in the past have been dealt with; and
• Whether, therefore, it is considered fair and reasonable in the particular circumstances to proceed in the absence of the employee.

Where an employee continues to be unavailable to attend a meeting/hearing, it may be concluded that a decision in their absence will need to be made based on the evidence available. The employee must be informed where this is to be the case.

2.5.5 Debrief & Reintegration

2.5.5.1 Regardless of whether or not a matter progresses to a disciplinary hearing, it may be appropriate to undertake a debrief in order to review the case, any lessons learned and agree any further action required (not in relation to the individual who was the subject of the investigation/hearing, but in terms of general organisational improvement actions identified during the investigation/hearing process). Involvement in such a discussion will be determined on a case-by-case basis.

2.5.5.2 In addition to the duty of care, referred to below, it is also critical to ensure that, where the outcome does not involve dismissal, the employee is supported in being reintegrated back into their job role and within their team (or within any new job role/team into which they are placed as a hearing outcome). Managers should liaise with HR and staff-side representatives to discuss measures which might help to support reintegration.

2.5.6 Duty of Care

2.5.6.1 In line with current health and safety legislation, Boards have a duty of care to their employees. In the context of this PIN policy, this means that Boards need to be mindful of the potential risks to health and safety associated with individuals who are involved (primarily the individual who is the subject of the case and any witnesses).

2.5.6.2 Where it is suspected that an individual's health and safety may be at risk, at any stage of the procedure, contact should be made with Occupational Heath as a matter of priority. Trade union/professional organisation representatives, where they perceive any potential concerns in this regard, should advise their member to seek Occupational Health support, as well as advising management accordingly.

2.5.6.3 Particular consideration needs to be given in circumstances where the decision of the disciplinary panel is to dismiss an employee (or where an appeal hearing panel have upheld a decision to dismiss). Where concerns around the individual's health and safety exist, it may be helpful to arrange for the individual to meet with Occupational Health following verbal confirmation of the outcome or, where the outcome is to be conveyed solely in writing, invite the employee to attend to receive the written confirmation, with Occupational Health on-hand for immediate support.

2.5.7 Retention of Records

2.5.7.1 Boards must ensure that records pertaining to disciplinary matters are managed in accordance with the Data Protection Act 1998³⁴ and the Scottish Government Records Management: NHS Code of Practice (Scotland) Version 2.1 (January 2012)³⁵. The Code sets out how long records pertaining to disciplinary matters can and should be retained. While disciplinary warnings should only be retained as 'live' on file for the duration of the warning, the Code advises as follows:

Records	Retention Period
Letter of dismissal	10 years after the employee leaves the service
Records of action taken, including: Details of rules breached Employee's defence or mitigation Action taken and reasons for it Details of appeal and any subsequent developments	6 years after the employee leaves the service

2.5.8 Criminal Offences/Police Involvement

2.5.8.1 In all cases where criminal offences are suspected, the manager should consult their local HR department. In such cases, it may be that there is a need to refer to other organisations (such as the police, UK Border Agency, statutory regulatory bodies, Disclosure Scotland or NHSScotland Counter Fraud Services (CFS)).

2.5.8.2 Disciplinary action should not be taken automatically against an employee because they have been charged with or convicted of a criminal offence. Consideration needs to be given to what effect the charge or conviction has on the employee's suitability to do their job and on their relationship with the Board, as their employer, work colleagues and others, such as patients.

2.5.8.3 In situations where it is considered that the conduct warrants investigation under the local policy developed in line with this PIN policy, the following should be considered:

• An investigation into the facts of the case should be undertaken, including a meeting with the employee where possible.
• It is not necessary to await the outcome of any prosecution before taking action. This should be discussed in advance with the relevant police authority or CFS. However, the Board must have sufficient evidence to form a reasonable belief that the employee is guilty of misconduct. If the charge relates to something entirely outwith employment, the Boards may have to await the outcome.
• If the employee refuses to co-operate with the internal disciplinary investigation, this does not stop the Board from following due process. In these situations, the employee should be advised in writing that, unless further information is provided, a decision may be taken, up to and including dismissal, on the basis of the information available. Boards need to recognise, however, that an employee may not be able to cooperate for fear of incrimination and, without the employee's input, there may not be sufficient evidence on which to base a decision.

2.5.8.4 Where an employee has been charged with or convicted of a criminal offence, or where they have been barred from undertaking regulated work (or are being considered for barring), and where any associated misconduct issues have not resulted in dismissal from the Board, this may mean that the employee is unable to fulfil the terms of their contract of employment. Further information on the procedure to be followed in such circumstances is contained within the Safer Pre and Post Employment Checks PIN Policy³⁶.

2.5.9 Counter Fraud Procedures

2.5.9.1 The National Health Service (Functions of the Common Services Agency) (Scotland) Order 2008³⁷ authorises NHSScotland Counter Fraud Services (CFS) to prevent, detect and investigate fraud or other irregularities against the health service.

2.5.9.2 NHSScotland Boards have signed a Partnership Agreement³⁸ with CFS, which states that CFS will undertake counter fraud work on their behalf, and which explains the roles and responsibilities of the partners to the agreement.

2.5.9.3 The Memorandum of Understanding with Human Resources is the operational document which sets out an agreed framework for cooperation and collaboration between CFS and Board HR departments, including their respective roles and responsibilities, when investigating certain types of alleged offence by an employee.

2.5.9.4 The specified offences include fraud, theft by fraud or omission, embezzlement, corruption and financial irregularities involving dishonesty or deception (e.g. timesheet or travel claim irregularities, sick leave irregularities, failure to declare gifts and breaches of NHS Circulars and Standing Financial Instructions).

2.5.9.5 CFS is empowered to report cases for prosecution on behalf of NHSScotland Boards, without recourse to any other Agency or the policy. Where a specified offence is suspected, and criminal sanction (prosecution) is to be sought, CFS will undertake an investigation, including interviews under caution, in accordance with the terms of the Memorandum of Understanding and their own internal policies and procedures.

2.5.9.6 CFS will not interview the employee under investigation as part of the Board's management of employee conduct policy. The CFS investigation does not replace the requirement for a Board, as an employer, to undertake a fair and thorough investigation of the allegations (including holding an investigatory meeting with the employee under investigation).

2.5.9.7 Where CFS are conducting an investigation, agreement should be reached with them as to when it will be appropriate to commence the disciplinary investigation, with the aim of completing this within a reasonable timescale.

2.5.9.8 CFS should also normally be consulted before suspending an employee. They may wish to make recommendations regarding the timing of the suspension in the interests of securing the integrity of any potential evidence.

2.5.9.9 There may also be occasions when an investigation by CFS will be carried out without the relevant employee having been informed beforehand. Such action will be by agreement between the manager, HR, the Fraud Liaison Officer and Counter Fraud Services.

2.5.9.10 Under normal circumstances, any evidence gathered during a disciplinary investigation will not be shared with CFS. However, if, during the disciplinary interview, information is obtained which points to a significant change in the original allegation, the interview should be suspended and CFS consulted.

2.5.9.11 All statements recorded by CFS can be used in disciplinary, civil and criminal proceedings and, subject to agreement from the Crown Office and Procurator Fiscal Service, will be released to the investigating officer for internal investigation purposes.

2.5.10 Notification of Statutory Regulatory Bodies

2.5.10.1 Mechanisms should be in place to ensure that statutory regulatory bodies are promptly informed, as appropriate, where concerns arise which suggest that an employee's fitness to practice may be impaired. Employees must be advised in advance of any such referral being made.

2.5.10.2 Where an employee's professional registration has been lost or suspended, and where any associated misconduct issues have not resulted in dismissal from the Board, such loss/suspension may mean that the employee is unable to fulfil the terms of their contract of employment.

2.5.10.3 Further information on when to refer to statutory regulatory bodies, and on the procedure to be followed in the case of loss/suspension of registration, is contained within the Safer Pre and Post Employment Checks PIN Policy³⁹.

2.6 Training

2.6.1 To support the fair and consistent implementation of this PIN policy locally, it will be essential for NHSScotland Boards to ensure that those involved in managing conduct issues have been appropriately trained. Joint training on Boards' local policies developed in line with this PIN policy should be developed in partnership and delivered to managers and trade union/professional organisation representatives using a partnership model. It may be appropriate to incorporate such training into local management development programmes.

2.6.2 Additional training should be provided for those managers who may require to chair formal hearings under the procedure and no manager should be required to undertake such a role unless they have participated in such training.

2.7 Basis for Evaluation/Indicators of Success

2.7.1 Boards must subject their local policy developed in line with this PIN policy to ongoing monitoring to ensure that it is being fairly and consistently applied and that the stated principles and values are being met. The local policy must also be subject to regular review, in partnership, to ensure that any new standards and/or structures are incorporated when necessary and that it remains fit for purpose.

2.7.2 In order to gauge how successful the local policy has been in operation, it is important in the first instance to establish baseline criteria. In order to do this, Boards will need to gather information about the current approach to conduct issues. This information gathering can then be repeated after an agreed time span, following the introduction of the policy, to determine improvement or otherwise.

2.7.3 A basis for evaluation could include:

• Feedback from staff surveys on changes in the approach to, and management of, conduct issues;
• Joint review of anonymous facts and figures from trade union/professional organisation representatives, Occupational Health, managers, HR and confidential contacts with a view to monitoring the overall picture; or
• Information gained from exit interviews.

2.7.4 Boards should also monitor application of the policy in order to ensure that its approach avoids discrimination on grounds, for example, of the protected characteristics set out within the Equality Act 2010⁴⁰.

2.7.5 Other indicators of success can include:

• Awareness by employees that a policy exists and an understanding of how it works;
• Managers using the procedure to deal with issues of conduct and feeling comfortable when using it;
• Managers and employees believing that the policy is applied fairly and consistently;
• Improvements in the approach to conduct issues; and
• Open discussions at local partnership forums about the effectiveness of the policy.