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Please note that this guidance deals specifically with employee capability and conduct in the workplace. Separate guidance on dealing with student conduct can be found on our website under Student General Regulations.
At some point during their employment with BSU any line manager may be required to deal with performance issues as a result of an employee’s capability or conduct. When considering whether to instigate capability or disciplinary (informal or formal) proceedings, it is important to carefully consider the perceived reasons for the employee’s decline in performance or conduct and to ensure you understand the differences between the two.
Difference between capability and conduct
It is important to understand and make the distinction between (prolonged) poor performance that may be due to a lack of capability/competence (skills, ability, aptitude or knowledge), and which the employee is willing to, or ‘can’, address through support and training, as opposed to misconduct, where the employee has the ability to improve but fails to, or won’t, attain the required standard(s) of behaviour or performance.
A lack of capability exists where despite an employee’s best efforts, he or she is simply unable to perform the job to the required standard as set by the University. In this scenario it is the agreed University standard that is relevant, and not the manager’s personal opinion of the employee. BSU recognises that employees do not choose to perform their work badly, to make mistakes, and fail to complete tasks or to have poor relationships with others. However where such issues do arise it is the line manager’s role to discuss these concerns with the employee as early as possible.
“Conduct is within the employee’s control and as such, issues of conduct will be dealt with via the Disciplinary Procedure. Capability, on the other hand, refers to the capacity and ability of the employee to perform their job. Without adequate capability, the best efforts and motivation from the individual will not be enough”.
Some examples of behaviour(s) that may be dealt with under the Capability Procedure are:
- Sustained decline in volume of work
- Noticeable decline in the quality of work i.e. errors, mistakes, omissions
- Decline in attendance due to intermittent sickness, exceeding BSU trigger points
- Regular instances of poor timekeeping
- Concerns about teaching quality
Some examples of misconduct and gross misconduct Examples of Misconduct
Please note that the examples given are not intended to be exhaustive but rather to give an indication of a number of issues and/or concerns that could be the subject of capability or disciplinary (informal or formal) proceedings.
Once it has been established that there is a capability or disciplinary issue which requires attention and/or action please refer to either the relevant further guidance on the Capability Procedure or the Disciplinary Policy and Procedure
The following additional guidance for line managers is also available:
- How to deal with issues of capability and/or conduct – Informal Process
- Possible Causes of Unsatisfactory Performance
- Examples of Misconduct and Gross Misconduct
- Capability Procedure – Guidance for Line Managers
- Disciplinary Policy – Guidance for Line Managers
- Structure of a Formal Investigation – Meeting Checklist
- Structure of a Disciplinary Hearing - Meeting Checklist
- Structure of an Informal or Formal Capability Meeting - Checklist
- Hints and Tips - Carrying Out Disciplinary, Grievance or Capability Investigations and Meetings
- Disciplinary Process Flowchart
- Capability Process Flowchart
- Purpose and scope
- Informal Process and Investigations
- Formal Procedure
- Suspension and Gross Misconduct
- Written Warning (first stage of the formal procedure)
- Final Written Warning (second stage of the formal procedure)
- Dismissal (third stage of the formal procedure)
- Alternative Sanctions Short of Dismissal
This policy is designed to help and encourage all employees to achieve and maintain the appropriate standards of conduct, behaviour, attendance and performance necessary to the conduct of the University’s affairs and for the well-being of all employees. BSU also believes that management have a positive role to play in encouraging all employees to perform professionally and to the expected standard whilst at work. Please note that this policy shall not apply to redundancy dismissals or the non-renewal of fixed term contracts. The University’s policies and procedures are available on the website and apply to all employees. The aim is to ensure consistent and fair treatment for all.
The disciplinary policy will not apply during a period of probationary service.
Initially, informal action will be considered, where appropriate, to resolve problems. No formal disciplinary action will be taken against an employee until the case has been fully investigated. Where formal action is being taken, the employee will be advised of the nature of the complaint against them beforehand. Disciplinary action may be considered when an issue is of a serious nature, or after a number of minor complaints have arisen. Advice will be sought from the HR department before any formal disciplinary action can be taken.
Employees will be provided, where appropriate, with written copies of evidence and relevant witness statements in advance of a disciplinary meeting. At the hearing, the complaint will be explained to the employee, together with the evidence gathered, as presented by the investigating officer. The decision will be made by a panel consisting of a senior line manager for the employee, not previously involved in the proceeding, who will act as Chair, a second senior line manager or delegated representative and a member of Human Resources to advise on process. Employees will be given a reasonable opportunity to ask questions, present evidence and to call relevant witnesses. At all stages of the procedure the employee will have the right to be accompanied by a Trade Union representative, or work colleague. No employee will be dismissed for a first breach of discipline except in the case of gross misconduct, when the penalty may be dismissal without notice or payment in lieu of notice. An employee will have the right to appeal against any disciplinary action.
The University recognises the rights of academic staff with regard to their role in testing and questioning received wisdom and current opinion.
Formal disciplinary action will not be taken against a Trade Union official until the circumstances of the case have been discussed with a full-time Trade Union officer.
Any disciplinary action against the Senior Post Holders (appointees of the board of governors), will be dealt with by a nominated panel of the board of governors.
The procedure may be implemented at any stage if the employee's alleged misconduct warrants this. Examples of misconduct and gross misconduct have been provided as an indicative guide to the seriousness of alleged behaviour. Examples of Misconduct and Gross Misconduct are available here examples of misconduct.
This policy and procedure may be subject to alteration to reflect future changes in legislation or Trade Union negotiation.
If a line manager is concerned over an employee’s conduct, this will first be addressed through normal daily processes, including one-to-one meetings, catch ups or, if considered appropriate by the University, mediation. If a line manager is unable to resolve a problem informally, an investigation may be required to establish the facts relating to any allegations before deciding whether to proceed with a disciplinary hearing. The employee will not normally have the right to bring a companion or Trade Union representative to informal discussions with the line manager, however to overcome any disability or difficulty in language this may be permitted at the University’s discretion. Where the line manager conducts a formal investigation the employee has a right to be accompanied by a Trade Union representative or colleague. The nature of the investigation will depend on the case but it may include fact finding interviews and examination of relevant documents. Where the line manager has been involved directly in an alleged disciplinary incident a line manager who has had no involvement in the case will investigate the matter.
At each stage of the procedure the Chair will write to the employee inviting them to a meeting to discuss the problem. The letter will provide the employee with the reason for the meeting and give a minimum of 5 working day’s notice to the employee. The line manager will also notify the employee of their right to representation at the hearing by either a Trade Union representative or a work colleague. If the employee wishes to bring a representative or provide additional evidence at the hearing the employee should submit this to the Human Resources Department. Any evidence which either the line manager, or the employee wishes to submit as evidence should be provided 3 working days before the meeting.
In exceptional circumstances, the panel may decide to extend warnings beyond the normal periods identified below. The panel may also take expired warnings into account when considering the reasonableness of any sanction given. Any expired warnings, within a reasonable period of time, would have to have a direct bearing on the current allegation and would only be considered when making a decision about the penalty.
The Chair, in conjunction with the Human Resources Department, will notify the employee of the panel’s decision and the reasons, in writing, normally within ten working days. The notification will include the details of any sanction or review period and how long any sanction is applicable for. It will include the employee’s right to appeal within ten working days from the date of the letter confirming the disciplinary decision.
At the Human Resources Department’s absolute discretion, where a grievance procedure is instigated and is linked to a disciplinary procedure, the two procedures may be more effectively resolved through their merger. In these circumstances, the decision would be heard by a panel, the employee’s rights will not be affected and this will be confirmed to the relevant parties prior to any hearing taking place. The Human Resources Department will keep on file a record of the hearing, together with the minutes and outcome.
If an employee is suspected of an act of gross misconduct, they may be suspended from work on full pay pending a disciplinary investigation. On the Vice Chancellor's, or her delegated representative’s approval, suspension would be confirmed in writing, setting out the grounds on which the decision has been taken. The investigation must be carried out within a reasonable time, typically within 3 weeks, or if an extension is required an explanation will be provided to the employee with alternative proposed timescales. During the period of suspension the employee will not be entitled to access any of the University’s premises or resources, without the prior consent of the University.
An employee suspended for more than three weeks (subject to the Article of Government 10.4) may appeal to the Board of Governors against the suspension, by applying in writing to the Clerk to the Board of Governors. The suspension shall remain valid during the process of the appeal. If, on completion of the investigation and the full disciplinary procedure, the University is satisfied that gross misconduct has occurred, the result will normally be summary dismissal, without notice or payment in lieu of notice.
Following a meeting, if conduct is found not to meet acceptable standards, a first warning for misconduct may be issued. This will be in writing and set out the nature of the misconduct and the change in behaviour required as well as the right of appeal. The warning will also inform the employee that a final written warning may be considered if there is a repetition of the same or similar behaviour. A record of the warning will be kept by the Human Resources Department on the employee’s personnel file, but it will be disregarded for disciplinary purposes after a specified period; normally six months.
If the first offence is sufficiently serious, or if there is further misconduct during the currency of a prior warning, a final written warning may be given to the employee, following a meeting with the Chair, who will be a more senior manager. This will give details of the nature of the misconduct, the improvement required and the timescale. It will also warn that failure to improve conduct may lead to dismissal (or some other action short of dismissal) and will refer to the right of appeal. A copy of this final written warning will be kept by the Human Resources Department on the employee’s personnel file but will be disregarded for disciplinary purposes normally after 12 months, subject to achieving and sustaining satisfactory conduct or performance.
If the first offence is sufficiently serious, or if there is a further act of misconduct, the final step in the procedure may be dismissal with notice. Dismissal decisions can only be taken by the Vice-Chancellor, or her delegated representative, and the outcome of a meeting and reasons for dismissal will be provided in writing to the employee, including the date on which the employment will terminate, and the right of appeal.
In appropriate cases the University may consider some other sanction short of dismissal, such as demotion, a transfer to another department or job, loss of seniority or a reduction in pay. These sanctions may be used in conjunction with a written warning and may be authorised by the Vice Chancellor, or her appointed representative.
An employee who wishes to appeal against a disciplinary decision must do so in writing, to the Human Resources Department, within ten working days. Two appropriate, senior managers will hear the appeal and their decision is final. At the appeal any disciplinary penalty imposed will be reviewed.
In the appeal letter the employee should state the basis of their appeal, likely to include either new evidence, or where the employee believes there has been a failure in procedure, which has affected the outcome.
An appeal will not suspend or delay any disciplinary penalty already in progress and will be held within a reasonable time frame.
Appeals against dismissal will be heard by a sub-committee of the Board of Governors. Appeals against all other disciplinary penalties will be heard by an Appeal Panel. There will be no further right of appeal.
This Guidance is designed to provide information on how to conduct a formal disciplinary investigation, including addressing some of the issues that may arise during the process.
Any manager intending to undertake a formal disciplinary should refer to the University’s Disciplinary Policy and Procedure and seek advice from their HR Business Partner before doing so. They will provide professional support and guidance throughout the process.
The purpose of the investigation is to:
- gain a fuller picture of the situation and circumstances
- establish the facts
- gain evidence which supports/refutes the points in the case
- gain interviewee’s reaction to evidence that conflicts with their account
- determine whether a hearing is necessary
The role of Human Resources
Any manager intending to undertake an investigation under one of the University’s formal procedures should seek advice from the HR department before doing so. They will provide professional support throughout the process. It is important that HR and the investigating officer work together and that communications are maintained.
HR will also be on hand to provide advice, guidance and support to the employee throughout the investigation and beyond where appropriate.
Who is the Investigating Officer?
The University procedures provide that the line manager should be the Investigating Officer when allegations arise. Where this is not possible for any reason, for example the line manager has been involved directly in an alleged disciplinary incident, a line manager who has had no involvement in the case will investigate the matter. In exceptional circumstances the line manager may appoint another to conduct the investigation of their behalf. Such circumstances may apply if the line manager is exceptionally busy or due to go on leave and the need to conduct and conclude the investigation swiftly is essential. Human Resources will work with the line manager to help determine the most appropriate person to act as Investigating Officer and, where required, can provide a list of independent freelance investigating officers.
How serious is it?
An investigation must establish the seriousness of the alleged act and be proportionate to it. So, as a manager, your response may range from a brief discussion with the employee to establish the facts, to a full scale investigation involving other agencies such as the police. The objective should be to provide sound evidence for any subsequent action. Investigating Officers should ask themselves what they should reasonably expect to achieve given the time and resources available. Some examples of Misconduct and Gross Misconduct are Misconduct and should be used as a point of reference to help you determine the nature and severity of the matter under investigation.
There are a very limited number of occasions when a disciplinary investigation may lead to a criminal investigation. In these circumstances please contact your HR Business Partner immediately for advice.
Is suspension necessary?
It may be necessary in some cases, for example in cases of gross misconduct where a potential outcome is dismissal without notice, to decide whether the employee against whom the allegations have been made should be suspended on full pay pending the investigation. Such action cannot be taken without obtaining the Vice-Chancellor’s approval and should not be considered without first seeking HR advice. A letter will be sent which explains that suspension is a precautionary measure; it will be made clear it is not a disciplinary sanction and does not presuppose guilt or innocence. Such action is rare and would only be considered in more serious cases of alleged gross misconduct or where the employee’s continued presence in the workplace might have a disruptive effect or enable them to undermine the case through compromising or destroying evidence.
Gather other evidence if appropriate
At the outset, the line manager or investigating officer (‘you’) should identify the types of evidence you will need to gather. Don’t rely merely on witness statements. Think about gathering files, documents, CCTV footage or computer records, if available. Policy documents can also be used. If any evidence is likely to perish or be removed, gather it as a priority. You might need to examine and rely on computer records (e.g. emails and web-browser history), and telephone records. This should be done in accordance with data protection, which requires employees to be informed of the reasons for monitoring. In exceptional cases, for example where the employee is suspected of leaking confidential information, covert monitoring may be acceptable, but this should be done only with extreme care and following University policy on Institutional Access to Staff and Student IT Accounts and IT Equipment and legal requirements. In all cases of monitoring, you should take advice from HR before proceeding.
Conduct investigatory interviews
Decide who you need to interview and do it as soon as possible before memories fade. Interview the employee against whom the allegation(s) have been made first, but it should be made clear that it is an investigatory interview and not a disciplinary hearing. Identify what you need to establish from each interviewee and prepare accordingly. Whilst you can have a pre-prepared list of questions, you may need to explore particular responses in more detail during the interview. It is better to prepare a list of topics and decide on the order in which you wish to deal with them. See the structure of a formal investigation meeting checklist for further information.
In some cases, a witness may refuse to be interviewed. If this occurs, you should try to reassure the witness about the process and address any concerns that he or she may have. It is important that you do not pressurise or intimidate the witness; instead you could explain the relevance of the witness's information to clarifying the matter at hand. It might be that the witness would prefer to be interviewed with a companion or on the telephone (where the witness is, for example, an ex-employee). Alternatively, the witness may be prepared to provide a written statement. If that is the case, you should supply a list of questions for the witness to answer. In some cases, the witness may be scared to give evidence against a colleague. You should treat the witness with sensitivity. However, while you can take steps to protect the witness’s anonymity, it is not possible to give an absolute guarantee of confidentiality and witnesses will be told that their statements may be shared with the alleged perpetrator. In addition and where there are significant differences between the witness and the alleged perpetrator’s accounts these may be discussed further with both parties.
If documents or statements gathered subsequent to the initial interview with the alleged perpetrator conflict with his/her own statement, draw attention to this in the report. The employee will receive a copy of the report and witness statements in advance of the hearing and will be able to respond to these in the hearing, if it is decided following the investigation that there is a case to answer.
Recording the interviews and producing statements
Full notes should be taken by a third party to ensure they are comprehensive and that you can focus on the questions and responses. Draft statements should be taken back to the interviewee for approval, using the interviewee’s own words wherever possible. Where the employee disagrees with the record, note the details and ask them to read and approve them to the effect that they accurately reflect the disagreement. The notes on which the statement was based should be retained until the conclusion of the process, including any subsequent appeal.
When it’s over, it’s over
When you feel you have sufficient evidence on which to base a decision, finish the investigation and prepare your report. This should detail:
- The allegations made/description of the complaint (or grievance)
- How you conducted the investigation (methodology)
- What evidence you have gathered – physical and witness statements (this evidence should be attached as appendices to the report)
- Findings – evidence to back up or contradict allegations
- Your conclusions based on the facts, including whether you feel there is a case to answer at a disciplinary hearing, or any informal action that needs to be taken
The line manager or the proposed Chair of the relevant disciplinary panel will then make the final decision, based on the investigating officer’s report and recommendations, on whether or not the case will progress to a full disciplinary hearing.
Separation of powers
In accordance with the Disciplinary procedure, the person conducting the investigation should not also hear the case if it goes to disciplinary hearing. These two functions should be kept separate in the interests of natural justice. A panel will be selected that is independent of the investigation and the Investigating Officer will present the case. He/she will not be on the panel. The panel will comprise of two senior managers of the institution, unless one of the likely outcomes is dismissal, then the Chair must be the Vice-Chancellor or one of their representatives.
However, if the outcome of the investigation is that informal action is needed to resolve the situation, the Investigating Officer will recommend what the appropriate action should be.
The employee will be informed of the outcome of the investigation within 10 working days, and will be given 5 working days’ notice of a hearing.
If a hearing is necessary
After the hearing the employee will receive the decision in writing within 10 working days. The employee’s line manager, whether or not they were the investigating officer, will need to be informed of the outcome. At the time of the hearing, the hearing panel will determine how the outcome will be communicated to other parties.
Introduce the hearing and panel members, and explain its purpose and how it will be conducted. The purpose of the hearing will normally be to establish the facts and determine, on conclusion of the hearing, whether the University has proper grounds to take disciplinary action against the employee and, if so, the level of such disciplinary action.
Ask parties present at the hearing to introduce themselves and confirm their respective roles in the hearing.
Depending on whether the employee is accompanied or not the Chair will either:
- Confirm the role of the representative is to support the employee and that they should not answer questions on their behalf, or
- Confirm that the employee is aware that they have the right to be accompanied and that they are happy to proceed without
State that the hearing is being conducted as part of the University’s disciplinary procedure, and that a written record of the hearing will be made.
State whether any witnesses have been asked to be prepared to give evidence at the hearing (by answering questions on their statements), and if so, who they are.
Explain the structure of the hearing
- chair will summarise the allegations, then the
- line manager/investigating officer will present their findings,
- line manager/investigating officer will call any witnesses, and
- line manager/investigating officer will ask witness(es) questions
- panel will ask witness(es) questions
- employee will ask witness(es) questions
- employee can ask questions of the panel and raise points about any information given by the witness, then the
- employee makes their case including any mitigating factors, and
- employee calls any witnesses, and the panel questions the employee and raises points about any information given by the witness(es)
- The chair will sum up
- employee gets the final say before the meeting is adjourned in order for the panel to confer
Explain that at any point during the hearing, the chair may adjourn the proceedings if it appears necessary or desirable to do so (including for the purpose of gathering further information). The employee may also request an adjournment, in order to confer with their representative/work colleague, or to take a moment.
Explain that the witness statements and other documents in the pack are taken as read.
Summarise the allegations – explain if the allegations have changed since the initial investigation. State that the investigating officer is independent (if this is the case).
Ask the line manager/investigating officer to explain fully the University’s case, ie the employee's alleged or suspected misconduct or unsatisfactory performance or other circumstance leading to the possibility of disciplinary action being taken against him/her.
Ask the line manager/investigating officer whether they wish to call any witnesses to state their evidence in front of the parties.
Give the employee a full opportunity to question the chair on the University’s case, and to raise points about any information provided.
Ask the employee to state his/her side of events, explain his/her conduct or performance and state any mitigating factors.
Ask the employee to call any witnesses into the hearing to state their evidence in front of the parties.
Question the employee on his/her evidence and raise points about any information provided.
Sum up the key points of the hearing.
Ask the employee if there is anything they wish to add.
Inform the employee on when a decision will be made on whether to impose a disciplinary penalty on the employee and how they will be informed. [If the employee will not be called back into the meeting, otherwise when they’re called back in]
Inform the employee that he/she will have the right to appeal against any disciplinary penalty imposed on him/her.
Tell the employee that the outcome of the hearing is confidential, even if no action will be taken, and that they must not discuss it with anyone other than their representative. Their line manager can agree with them a way in which the outcome can be communicated if that would be helpful.
Close the meeting.