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Ms Olivia Chapman [email protected] Ref No: FOI/101/20/CHAPMAN

27 October 2020 Dear Ms Chapman, Thank you for your email of 26th September, 2020, where you requested the following information: “Under the Freedom of Information Act 2000, please provide me with a complete copy of the Government Legal Department Discipline Policy dated May 2015 that was partially disclosed on the 12th August 2019 in response to a www.whatdotheyknow.com FOI request by Ann Jones dated 13th July 2019. Link provided. https://www.whatdotheyknow.com/request/the government legal departments Only the 1st page of the Government Legal Department Discipline Policy dated May 2015 was provided in response to the FOI request. The other pages of the policy are missing. I seek provision of a complete copy of the policy, as a whole - every page of the policy. I observe that it is evident that the Discipline Policy contains more than just one page – i.e. the 1st page. The 1st page is numbered as page number 1, which means that there are other numbered pages that follow. If no other pages followed after the first page, then there would be no page numbering. The 1st page also contains a Policy Summary that identifies what is set out in the other, subsequent pages of the Discipline Policy. This further identifies that the Discipline Policy contains more than just one page. “Policy summary Misconduct may have occurred where it is suspected or alleged that an employee has failed to meet acceptable standards of behaviour or conduct in any way. Where misconduct is proven, a range of penalties may be imposed, up to and including dismissal. Key areas covered by this policy include: initial assessment, including levels of seriousness of misconduct informal and formal action investigations and meetings decision-making (including penalties).” As well as providing me with a complete copy of the Government Legal Department Discipline Policy dated May 2015, please also provide me with any amended or up to date version of the Government Legal Department Discipline Policy.

I can confirm that the Government Legal Department does not hold a copy of the 2015 policy you refer to. The current discipline and grievance policy guidance follows this letter. If you are dissatisfied with the handling of your request, you have the right to ask for an internal review. Internal review requests should be submitted within two months of the date of receipt of the response to your original correspondence. Please use the contact details provided at the top of this letter in order to request an internal review relating to your original request. Please remember to quote the reference number above in any future communications. If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at: Information Commissioner’s Office Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF Yours sincerely, Freedom of Information Team

2 20190218 Discipline Policy and Procedure FV

Contents Discipline Policy ............................................................................................................................. 4

Purpose of the policy and procedure ............................................................................................ 4

Discipline Policy ............................................................................................................................ 4

Principles ................................................................................................................................... 5 Scope of the policy .................................................................................................................... 5

Discipline Procedure Overview ..................................................................................................... 7

Discipline procedure overview - accessible version ...................................................................... 8

Initial Assessment ...................................................................................................................... 9 Diffusing an immediate situation following a potential disciplinary incident ................................ 9 Assessing the level of misconduct ............................................................................................. 9 Appointing someone to deal with the matter ............................................................................ 10 Minor misconduct that warrants formal action from the outset: ................................................ 10 The role of the decision maker................................................................................................. 11 Support for decision makers .................................................................................................... 12 Taking Informal Action ............................................................................................................. 13 Key differences between informal and formal meetings .......................................................... 13

Taking Formal Action .................................................................................................................. 15

Breaches of security or criminal matters .................................................................................. 15 Internal Fraud .......................................................................................................................... 15 Timeframes .............................................................................................................................. 16 Reasonable adjustments ......................................................................................................... 17 Employee support .................................................................................................................... 17 The role of the companion ....................................................................................................... 17 Communications ...................................................................................................................... 18 Gathering relevant evidence .................................................................................................... 19 Deciding whether to suspend an employee ............................................................................. 19 If evidence is readily available and the facts of the case are clear .......................................... 21 If an investigation is needed .................................................................................................... 22

Deciding the outcome ................................................................................................................. 22

No case to answer ................................................................................................................... 23 Case to answer ........................................................................................................................ 23 Deciding the penalty ................................................................................................................ 25 Downgrading............................................................................................................................ 25


How to consider mitigation ....................................................................................................... 26 Informing the employee of the decision ................................................................................... 27 Effective date of dismissal ....................................................................................................... 27

Appeals ....................................................................................................................................... 28

Support for appeal managers .................................................................................................. 29 Appeal manager’s actions ....................................................................................................... 29

Disclosure and confidentiality ...................................................................................................... 31

Record keeping ........................................................................................................................ 32 Data Protection ........................................................................................................................ 32 If the discipline investigation concludes that no disciplinary action in necessary ..................... 33

Special Circumstances ............................................................................................................... 34

Annex A ......................................................................................................................................... 38

Examples of misconduct ............................................................................................................. 38

Minor misconduct: isolated instances or minor breaches of the standards expected, which may include: .................................................................................................................................... 38 Serious misconduct: ................................................................................................................ 38 Gross misconduct: ................................................................................................................... 39

Annex B ......................................................................................................................................... 40

Fair Processing Notice ................................................................................................................ 40


Discipline Policy

Purpose of the policy and procedure 1. The purpose of this policy and procedure is to ensure that everyone meets the standards of

conduct and behaviour expected of them. These expectations are outlined in the Dignity at Work policy and the Civil Service Code. Where appropriate, individuals should be given the opportunity to address any areas of concern identified.

2. Managers have a key responsibility to act on early warning signs and talk to employees as soon as potential issues arise. This can, in most cases, help to resolve issues and shortcomings without recourse to formal disciplinary action.

3. It is everyone’s responsibility to take prompt action as soon as potential misconduct is suspected as it is in the best interests of everyone affected. Failure to deal with misconduct once identified may be perceived as an endorsement of unacceptable behaviour.

4. This document provides practical guidance to support managers, employees and their representatives. It explains the policy and procedure to use when it is suspected or alleged that any employee has failed to meet acceptable standards of behaviour or conduct.

5. The Government Legal Department (GLD) policy and procedure follows the principles set out in the ACAS Code of Practice on Discipline and Grievance

6. Managers should not use this policy for attendance, performance management and other capability issues. Separate policies and procedures cover these policy areas.

Discipline Policy 7. All employees are responsible for ensuring their conduct and behaviour meets the standards

expected of them. The Civil Service Code, the Dignity at Work policy and the Staff Handbook outline the key principles of behaviour expected from all employees.

8. All cases of misconduct should be dealt with promptly, transparently, fairly and consistently.

9. Everyone involved is expected to:

● treat colleagues with dignity and respect ● work together to resolve the issue and


● maintain confidentiality at all times - including once the process has been concluded.

10. The need to maintain confidentiality doesn’t prevent someone having the right to report a concern under the Public Interest Disclosure Act 1998 (PIDA). Details of the process to follow can be found in the department’s whistleblowing procedure. You may also find the Call it out toolkit useful.

Principles

11. Misconduct may have occurred where it is suspected or alleged that an employee has failed to meet acceptable standards of conduct or behaviour. The following principles apply:

● Informal action will be considered, where appropriate, to resolve issues. ● If formal action is being taken employees will be advised of the nature of the alleged

misconduct and will be given the opportunity to state their case at a discipline meeting before any decision is made.

● An appropriate level of investigation will be undertaken to establish the facts and gather evidence – this may be a relatively straightforward matter where evidence is accessible and the facts are clear or it may require the appointment of an investigation manager.

● An independent investigation manager will be appointed for all cases that could result in dismissal.

● Employees will receive a copy of any investigation report and related documents that the decision maker will rely on to make their decision in advance of a discipline meeting.

● Where formal action is taken the subject of the investigation has the right to be accompanied by a trade union representative or work colleague.

● If the decision maker finds that misconduct did occur, based on a balance of probabilities, a range of penalties may be imposed, up to and including dismissal.

● Employees have one right of appeal.

Scope of the policy

12. This policy and its related procedures apply to all employees and contractors who are not agency workers, including those on probation and fixed term appointments.

13. Employees on loan or secondment will normally be dealt with under the policy applicable in the department or organisation they are loaned or seconded to (i.e. the host). As the host employer, GLD will conduct a fair, transparent and impartial investigation in all circumstances and will provide this to the actual employer of the loan or secondee. However, it is important to check the loan or secondment agreement as other arrangements may apply. In cases of serious or gross misconduct, in particular where dismissal may be the outcome, the host


should notify the home department and keep them informed of progress and the outcome of any investigation.

14. Agency workers are not automatically in scope of this policy but are expected to conduct themselves in accordance with GLD’s standards of conduct and behaviour. The agency, as their employer, will normally deal with disciplinary matters. It is important to notify the agency as soon as matters arise and to agree how the matter will be taken forward, working together as necessary.


Discipline procedure overview - accessible version Step 1 Matter arises

Step 2 Manager contacts Civil Service HR Casework service for advice

Step 3 Initial assessment: manager conducts initial assessment of evidence to establish level of seriousness, and takes any immediate action needed to diffuse a situation or support the wellbeing of those involved/affected.

Step 4 If assessed as minor misconduct, informal action is appropriate and the line manager (or other appropriate manager) deals with the matter.

Step 5 If not minor misconduct, formal action is required and it is either serious or gross misconduct, or an instance of minor misconduct that requires formal action, e.g. repeated instances of minor misconduct.

Step 6 Formal action: a decision maker must be appointed to deal with the matter.

Step 7 The decision maker assesses if there is sufficient evidence available to proceed

Step 8 If ‘NO’ to Step 7, decision maker a) decides whether suspension is necessary whilst an investigation takes place, b) seeks appointment of independent investigation manager and c) commissions investigation.

Step 9 The investigation manager investigates and concludes whether there is a case to answer.

Step 10 If YES to Step 7, the decision maker holds formal meeting with employee.

Step 11 Decision maker decides outcome and penalty if appropriate.


Initial Assessment

15. When a disciplinary matter comes to light the first step will be to review the available details and/or facts to help establish:

● whether any immediate action is necessary following a potential disciplinary incident, either to diffuse a situation or support the wellbeing of those involved/affected

● whether, based on the information available, the matter is likely to be minor, serious or gross misconduct, whether it can therefore be dealt with informally or formally and who is best placed to deal with the matter, supported by CSHR Casework if appropriate

16. Who makes this assessment will depend on the circumstances of the case and how the matter comes to light. Managers should work with and be supported by CSHR Casework

to ensure this assessment results in matters being dealt with appropriately from the outset. The appropriate manager is responsible for identifying a decision maker. CSHR Casework can also provide advice on this if necessary.

Diffusing an immediate situation following a potential disciplinary incident

17. Action may be necessary immediately following an incident, or during the disciplinary process, in order to diffuse a situation or as a wellbeing measure to address tensions in relationships and personal stress.

18. An example of this type of management action might be asking someone to work in a separate area of the office or perhaps sending the employee(s) home for the rest of the day/shift to diffuse tension. It must be made very clear that they are not being suspended and will be expected to return to work as normal the next working day/shift. If suspension is being considered go to Deciding whether to suspend an employee.

19. In these circumstances managers need to think carefully about how their decision might be perceived by those involved and by potential witnesses. It is important that management action in these circumstances does not appear to apportion blame in advance of disciplinary action and that those involved understand why the action was taken. For example, there may be practical reasons why it isn’t possible to move a particular employee to work in another

area of the office.

20. Action of this nature is not an alternative to taking disciplinary action.

Assessing the level of misconduct


21. It is important to consider the likely level of misconduct at the outset as this will initially determine the process you follow, i.e. informal or formal. See Annex A for examples of minor, serious and gross misconduct. Considering the level of misconduct does not pre-empt the outcome of the disciplinary procedure and the level may change as the case progresses and as information comes to light.

● Minor misconduct: is a minor breach of rules, for example, an isolated incident which falls short of the standards expected.

● Serious misconduct: is either repeated minor offences or significant breaches of the standards expected.

● Gross misconduct: is either repeated serious offences or conduct serious enough to do irreparable damage to the working relationship between the employee and employer and its likely sanction could be dismissal.

22. There are a number of factors to consider when deciding the level of misconduct:

● the impact on others (check the Dignity at Work policy) and the department ● whether there has been damage to property ● culpability ● intent ● whether there has been a potential breach of the Civil Service Code.

Appointing someone to deal with the matter

23. Where minor misconduct is alleged or suspected, the matter is likely to be dealt with informally and in most cases it will be appropriate for the line manager or someone in the management chain to deal with the matter.

24. However, there are some examples where minor misconduct will warrant formal action from the outset.

Minor misconduct that warrants formal action from the outset:

● minor breaches of the Civil Service Code such as inappropriate behaviour on social media sites or in public where the department may be identified. For example, employees should refrain from posting or sharing on social media any information that may bring GLD, our clients or the Civil Service into disrepute. This includes comments of a partisan political nature if they are linked to your role as a GLD employee.

● where informal action has not stopped further minor misconduct from taking place.


25. If serious or gross misconduct is alleged or suspected the matter will also need to be dealt with formally.

26. If potential misconduct comes to light as result of dispute resolution action the formal disciplinary process must be followed.

27. Where alleged or suspected misconduct is being dealt with formally it may be appropriate for the line manager or someone in the line management chain to deal with the matter. However, there may be occasions where it is better for someone outside the line management chain to deal with the matter and be the decision maker. CSHR Casework must be involved.

28. If someone is being dismissed, the GLD HR Business Partner and the SCS team leader in the management chain must be consulted and approve the decision as a minimum.

The role of the decision maker

The decision maker is the person responsible for dealing with the matter when formal discipline action is being taken.

The decision maker will instigate the disciplinary process and they are responsible for making important decisions about:

● the seriousness of the misconduct and whether the matter should be dealt with informally or formally

● whether an investigation is needed to establish the facts ● whether suspension is appropriate; see Deciding whether to suspend an employee ● and if, on the balance of probability, they genuinely and reasonably believe that

misconduct did occur ● the appropriate penalty.

The decision maker is also responsible for keeping accurate and complete records, being mindful of the welfare of those involved and signposting them to appropriate sources of support, ensuring that the process is concluded in a timely manner, staying in touch with those involved and informing them of any delays.

A manager should not deal with the matter if they are or could reasonably be perceived as:

● being somehow implicated ● being biased ● having a personal interest in the outcome of the case.


Managers must consider their own objectivity and the perceptions of others in deciding whether a different manager should act as the decision maker in the interests of ensuring a fair process.

If a manager has been the decision maker in a dispute resolution case, which subsequently leads to disciplinary action being taken, a different decision maker should be appointed to deal with the disciplinary matter.

If managers have any doubt about their suitability to deal with a matter they should contact CSHR Casework for advice. Early intervention from CSHR Casework is key.

29. It is important that disciplinary matters are dealt with fairly, impartially and objectively. If the subject of the disciplinary action has a reasonable concern about the integrity or impartiality of the appointed decision maker they should raise this with their HR Business Partner

Every effort should be made to allay or address their concerns but this does not mean they can choose who deals with the matter.

Support for decision makers

The role of the decision maker is vital in ensuring that all employees involved in disciplinary matters are treated with dignity and respect and that the outcome is transparent and fair.

Decision makers must ensure that they have the relevant skills and/or experience before undertaking the role of decision maker. They should also familiarise themselves with the discipline policy and process.

Buddying or mentoring by experienced managers may also help decision makers with less experience, although such support must not unduly influence the impartiality or objectivity of the decision maker.


Taking Informal Action

Note: There are some examples where minor misconduct will warrant formal action from the outset. See: Minor misconduct that warrants formal action from the outset.

30. If the initial assessment is that the alleged offence is minor misconduct, informal action may be appropriate, particularly where it is a first offence. In these cases an informal discussion with their line manager or someone in the line management chain is often all that is required to improve an employee’s conduct or behaviour.

31. In this way matters can be addressed quickly and employees given the opportunity to address any shortcomings. Managers can explain expectations and the standard of behaviour expected and offer support through counselling, training, coaching or mentoring.

32. As part of that informal discussion the line manager should talk to the employee in private and:

● clearly explain the shortcoming in behaviour or conduct ● invite them to explain their actions ● invite the employee to provide information about any relevant personal issues or health

reasons that may have affected their conduct or behaviour ● remind the employee about the Employee Assistance Programme and other sources of

support ● explain what improvement is needed and agree what needs to be done and by when,

including training, coaching etc. ● explain that further misconduct may lead to formal action being taken.

33. Managers need to be careful that any informal action does not turn into formal disciplinary action without notice, as this may unintentionally deny the employee certain rights, such as the right to be accompanied. If during the discussion it becomes clear that the matter may be more serious, the meeting should be adjourned. The employee should be told that the matter will be taken forward under the formal disciplinary procedure.

Key differences between informal and formal meetings


Informal

● applies to minor misconduct ● it is part of day-to-day

management ● an informal note should be

kept by the manager but not placed on the employee’s personal HR file or performance assessment

● does not allow the employee the right to be accompanied, though they can seek advice and support from their trade union

● outcomes should be communicated to the employee, in writing, but informally, for instance, by email rather than a formal letter

Formal

● applies to some instances of minor misconduct and all serious and gross misconduct (including cases of repeated misconduct)

● does not need to be preceded by informal action

● is fully documented and is formally recorded by a note-taker

● allows the employee the right to be accompanied by a work colleague or trade union representative

● employee must always be informed in writing about the outcome

34. A note of all line management action should be kept securely either electronically and a copy sent to the employee. This should be retained locally in line with departmental record management policy but for no longer than 12 months. Please see the privacy notice.

35. As this is informal action, the note is not placed on the employee’s personal HR file.


Taking Formal Action 36. When it is agreed who will act as the decision maker they will need to check whether they

agree with:

● the initial assessment of the likely level of misconduct ● whether the matter should be dealt with formally or whether it can be dealt with

informally ● whether it is necessary to suspend an employee (see Deciding whether to suspend an

employee) ● how best to gather relevant evidence (Gathering relevant evidence).

If in any doubt the decision maker must contact CSHR Casework for advice Early intervention from

CSHR Casework is key, as they will assign a dedicated Case Manager from the start to provide professional HR advice and guidance.

37. Decision makers must be able to justify the course of action taken and whether any decisions resulting from this were reasonable in the given circumstances. If they are unsure about this, they must seek CSHR Casework advice

Breaches of security or criminal matters

38. Any suspected or alleged misconduct involving breaches of security, loss, fraud or other compromise (including ‘leaks’) of official and/or personal information or criminal matters

should be reported immediately to GLD security team via Fraud, corruption and irregularity should be

reported to the Director of Finance and Operations, who will take advice from the Government Internal Audit Agency. Where it is suspected that a criminal offence may have been committed, the advice of the security team should be sought in relation to notifying the police.

39. An internal security investigation may need to be completed before the misconduct process can be implemented in order to establish the full circumstances of the alleged misconduct. Under these circumstances, it is possible that the security investigation report will inform the misconduct process. In such cases, it may not always be necessary to carry out a further investigation.

Internal Fraud


40. The decision maker must immediately notify Finance, HRHelp, and where applicable CSHR Casework, of any cases being handled formally that involve fraud or dishonesty and which could lead to dismissal.

41. Where an employee is dismissed for fraud or dishonesty (or following an investigation the employee would have been dismissed had they not resigned or otherwise left the department), the following employee details will be added to the Internal Fraud Database (IFD) as part of the Civil Service Internal Fraud Policy:

● name ● date of birth ● national insurance number ● a brief description of the type of misconduct and ● the date the employee left the department.

42. Individuals whose details are added to the IFD will be banned from re-employment in any department participating in the Civil Service Internal Fraud Policy for a period of five years.

Timeframes

43. Formal investigations can be an extremely difficult time for everyone involved. It is therefore important that matters are dealt with promptly and without unreasonable delay.

44. Where matters can be dealt with informally they are likely to be concluded simply and quickly. However, where potential misconduct is being dealt with formally it is likely to take longer, especially if an investigation is needed.

45. At the outset, the decision maker should notify CSHR Casework. CSHR Casework will monitor progress to ensure that everything is being done to progress the case, that the correct process is being followed and that there are no unnecessary delays. If the matter has not been concluded after 30 working days, CSHR Casework may escalate the case to GLD’s

Single Point of Contact (SPOC). The SPOC will then escalate the case to the relevant HR Business Partner.

46. It is recognised that, exceptionally, there may be delays in progressing matters. This may be due to the complexity of the case or because of short absences that are part of the everyday working environment such as: employee or decision maker working patterns and/or short term absences due to annual leave, illness or disability. In any cases of absence all steps should be taken as soon as reasonably practical and the reasons for any delay should be recorded.


47. Decision makers should keep in contact with the subject of any disciplinary action to let them know if there are delays in progressing their case.

Reasonable adjustments

48. If the employee or their companion requires any reasonable adjustments to enable them to attend meetings, read correspondence or otherwise participate fully in the process, the decision maker is responsible for ensuring that adjustments are put in place.

Employee support

49. Employees have a statutory right to be accompanied by a companion where the disciplinary meeting could result in disciplinary action. The companion may be a work colleague, a trade union representative or an official employed by a trade union. A trade union representative who is not an employed official must have been certified by their trade union as being competent to accompany an employee.

50. The companion cannot be a friend or relative unless they are also a colleague. Neither can they be a legal representative. The ACAS Code of Practice on Discipline and Grievance has further details on the right to be accompanied: Discipline and grievance- ACAS Code of Practice

51. If there is a reasonable adjustment in place that includes the employee being supported in meetings, this must be extended to disciplinary meetings.

The role of the companion

In addition to offering moral support, with the employee’s agreement, the companion can:

● put forward and sum up the employee’s case, but not add new evidence ● seek clarification on the lines of enquiry ● confer with the employee.

During the meeting, the companion must allow the employee to answer questions posed by the decision maker, and not answer on their behalf. They should also allow the employee to explain their case and not address the meeting if the employee does not want them to.

52. If an employee is being accompanied by a work colleague or trade union representative at a formal discipline meeting, the decision maker should ensure the companion has reasonable opportunity to meet the employee and prepare prior to the discipline meeting.


53. The formal disciplinary process can be a stressful and worrying time for all those involved. In addition to the companion, employees may find it helpful to talk to someone in confidence. This can help those participating in the process to remain objective, gather their thoughts and participate fully in meetings. It is important to acknowledge this and for the decision maker to remind those involved about all the sources of support available during the process and after the matter has been concluded. This includes:

● the Employee Assistance Programme ● Trade Union representatives ● staff networks ● Workplace Early Resolution Helpline (run by MoJ Civil Service Casework):

● Mental Health First Aiders (MHFAs)

54. Discipline: A Guide for Employees is specifically aimed at employees, and decision makers should ensure that employees undergoing disciplinary action receive a copy.

55. Decision makers should consult CSHR Casework at any stage of the process if they need advice on any welfare related matters or support available to employees.

Communications

56. Decision makers are advised to retain proof that written communications have been sent to, and where appropriate, received by the employee. If communicating by email, it is recommended that a ‘read receipt’ is required from the employee when sending emails to them. In the case of communications by post, the use of mail tracking services is recommended. All evidence should be sent to the Employee Services team at

after the case has ended, who will store the documents securely in the employee’s electronic folder.

57. Employees who are undergoing disciplinary proceedings involving fraud or dishonesty, which could lead to dismissal, must also be sent a Fair Processing Notice. This should be referred to in any disciplinary letters sent to the employee and a copy of the Fair Processing Notice enclosed with the letter.


Gathering relevant evidence

58. The aim of an investigation is to gather relevant evidence and record the facts necessary to decide whether there is a case to answer or not.

59. An appropriate level of investigation will be necessary wherever formal action is being taken. How this is done will depend on the particular circumstances of each case and the decision maker should speak to CSHR Casework to agree what is appropriate in each case.

60. In straightforward cases of minor or serious misconduct it may be possible for the decision maker to undertake this, where:

● evidence is readily available and a simple fact-gathering exercise is all that is required and,

● the facts of the case are clear and not likely to be in dispute.

61. If the matter is more complicated or the evidence isn’t readily available an independent

investigation manager will be appointed to conduct an investigation. The role of an investigating manager is to be fair, impartial and objective so that they can establish the essential facts of the matter and reach a conclusion on what did or did not happen. They should do this by looking for evidence that supports the allegation and evidence that contradicts it. In potential disciplinary matters, it is not the role of the investigating manager to prove the guilt of any party but to investigate if there is a case to answer.

62. An investigation manager must always be appointed to investigate cases that could result in dismissal. This is likely to be the case where there is alleged gross misconduct or where there have been further instances of misconduct whilst a final written warning is live.

63. An investigation manager will also need to be appointed where:

● other parties, such as clients or customers, are involved in the discipline case ● other internal parties are involved in the discipline case, such as security or fraud teams ● the allegation involves media interest and could negatively impact on the department’s

reputation.

64. Where it is relevant, evidence already gathered as part of a dispute resolution investigation can be used as part of any resulting discipline investigation. However, issues not picked up as part of the earlier dispute resolution process may require further investigation as part of the disciplinary process.

Deciding whether to suspend an employee


65. Suspension should not normally be necessary. However, in serious cases of misconduct, suspension may be necessary whilst the alleged misconduct is investigated.

66. Circumstances when suspension may be appropriate could include where:

● there is a risk to other employees, property or customers ● there is a risk that the employee may tamper with evidence required for the investigation

and/or attempt to influence witnesses ● there has been a serious breakdown in the relationship between the employee and the

department.

67. Suspension is a serious decision and should be used only where absolutely necessary. Alternatives to suspension should always be considered first.

68. The decision maker should consult with CSHR Casework before any suspension action is taken. The suspension period must be as brief as possible and kept under regular review by the decision maker and CSHR Casework. The decision maker must notify HR of the suspension.

69. Suspension may be appropriate immediately following an incident or later in the process; for example, at a point during or after the fact-gathering or investigation, when evidence comes to light.

70. Suspension will normally be with full pay. The decision maker, together with HR, must seek legal advice if suspension without pay is being considered.

71. It is important to remember that suspension is not a penalty and does not assume any guilt on the part of the employee being suspended. This should be clearly explained to the employee. If an employee is being suspended they must also be notified of this in writing using Template Letter 12 in the Discipline Template Letters document.

72. Suspended employees may need to be escorted from the premises and asked to surrender official property, IT systems access, security passes or any other means of entry to official property. Any action taken in relation to suspension, such as escorting the employee from the premises, should be carried out in a manner that is consistent with not assuming guilt on their part. This should be done as discreetly and sensitively as possible and in a manner respectful to the employee’s dignity.

73. The decision maker is responsible for staying in touch with the employee during the period of suspension to keep them up to date with progress, explain any delays and to signpost them to sources of support. The decision maker should also ensure that ‘keep in touch’


arrangements are in place so the employee is kept up to date with departmental news and developments during the period of suspension. The decision maker has a duty of care and the primary responsibility for the employee’s wellbeing during any period of suspension.

74. It is important that any suspension does not impede the employee’s ability to gather

information that helps them prepare for the disciplinary meeting. The same applies in cases of sickness absence. Employees must be able to seek advice from their representatives in a fully informed position and be given reasonable access to documents and departmental IT systems, for example, their inbox, calendar and personal storage, which may require supervision during site visits.

If evidence is readily available and the facts of the case are clear

75. If evidence is readily available and the facts of the case are clear the decision maker will:

● gather the evidence and consider the facts of the case ● write to the employee using Template Letter 1 with details of the alleged misconduct, the

likely penalty if misconduct is proven and a brief description of the evidence, and ● invite the employee to a disciplinary meeting, where evidence will be presented and the

employee will have an opportunity to present their case together with any mitigation ● give at least five working days’ notice of the meeting ● meet with the employee to hear the case, arranging for a note-taker to be present at the

meeting

76. Consider all the evidence and advise the employee of the decision in writing using the appropriate template letter, this will include an opportunity to appeal. See

77. Deciding the penalty.

78. In the interests of fairness and transparency it is important that the letter inviting the employee to the discipline meeting sets out the nature of the alleged misconduct, so the employee is clear about the case to answer. The letter should also make clear the employee’s right to be accompanied by a trade union representative or work colleague.

79. Employees have a statutory right to be accompanied by a companion where the discipline meeting could result in disciplinary action. If the employee or their companion cannot reasonably attend the meeting, the employee should be asked to propose new dates to the manager to allow the meeting to take place within five working days of the original meeting date. Employees should be given a reasonable opportunity to make arrangements but the meeting should not be unreasonably delayed on the basis that a specific companion is unavailable. See also section on Employee support.


80. If there is a reasonable adjustment in place that includes the employee being supported in meetings, this must be extended to discipline meetings.

81. A note of the meeting must be kept. The decision maker should seek an independent colleague to do this and the employee should be notified in advance who the note taker will be. The note taker has no involvement in the meeting other than to make a record of the discussion.

82. If the employee fails to engage or cooperate with meeting arrangements and/or fails to attend the scheduled or re-scheduled meeting, consideration of the discipline case should go ahead in their absence based on the available information.

83. The process should be stopped at any time if it is evident that the scope of the misconduct is broader and/or more complex than initially thought. In such cases, the decision maker should seek HR advice from CSHR Casework.

If an investigation is needed

84. If an investigation is needed the decision maker will:

● commission the appointment of an independent investigation manager using the commissioning template in Annex D of the Investigations in the Civil Service document, available on the intranet at Home > How do I? > Human Resources > Conduct and Behaviour. See Investigations in the Civil Service for guidance on identifying a suitable investigator.

● write to the employee using Template Letter 2 with details of the alleged misconduct, the likely penalty if misconduct is proven and that an investigation is needed

85. In the interests of fairness and transparency it is important that the letter sets out the nature of the alleged misconduct, so the employee is clear about the potential case to answer. It must also explain their right to be accompanied by a trade union representative or work colleague at any investigatory meetings.

Deciding the outcome 86. When the investigation is complete the decision maker will receive a written report from the

investigation manager stating clearly whether, they believe there is a case to answer or not. The report will include the record of any interviews and documents as annexes that the investigating manager has relied on to determine whether there is a case to answer.


87. The decision maker should check that the report meets the terms of reference for the investigation as set out in their original commission. If it doesn’t, or if the decision maker thinks there are gaps in the evidence or bias, they should set this out in writing and request any further information they require. In the interests of transparency any such correspondence should be made available to the subject of the investigation as part of the investigation report.

No case to answer

88. If the decision maker agrees that there is no case to answer, they must write to the employee to thank them for their cooperation and confirm the decision that no further action is necessary using Template Letter 10. A copy of the full report should be enclosed with this letter.

89. Where there are multiple allegations, if some are ‘no case to answer’ and others fall under

‘case to answer’, follow the ‘case to answer’ section below. Correspondence, for example, template letters, will need to be tailored to reflect this.

90. If suspended, the decision maker should end the suspension as soon as this decision is made and write to the employee to tell them when they should return to work using Template Letter 13.

Case to answer

91. If there is a case to answer, the decision maker must write to the employee within five working days of receiving the report and invite them to a formal disciplinary meeting to discuss the findings of the investigation using Template Letter 1. The full report should be enclosed with this letter.

92. The decision maker should:

● invite the employee to a disciplinary meeting, giving at least five working days’ notice of

the meeting ● enclose the investigation report (including any witness statements, other supporting

evidence and correspondence between the decision maker and investigation manager) ● meet with the employee to hear the case, arranging for a note-taker to be present at the

meeting ● consider all the evidence and advise the employee of the decision in writing using the

appropriate template letter, this will include an opportunity to appeal. See Deciding the penalty.


93. Employees have a statutory right to be accompanied by a companion where the discipline meeting could result in disciplinary action. If the employee or their companion cannot reasonably attend the meeting, the employee should be asked to propose new dates to the manager to allow the meeting to take place within five working days of the original meeting date. Employees should be given a reasonable opportunity to make arrangements but the meeting should not be unreasonably delayed on the basis that a specific companion is unavailable. See also section on Employee support.

94. If there is a reasonable adjustment in place that includes the employee being supported in meetings, this must be extended to discipline meetings.

95. A note of the meeting must be kept. HR and the CSHR Casework service do not provide note takers as standard. The decision maker should seek an independent colleague to do this and the employee should be notified in advance who the note taker will be. The note taker has no involvement in the meeting other than to make a record of the discussion.

96. If the employee fails to engage or cooperate with meeting arrangements and/or fails to attend the scheduled or re-scheduled meeting, consideration of the discipline case should go ahead based on the available information.

97. Following the meeting the decision maker must decide if, on the balance of probability, it is their genuine and reasonable belief that misconduct occurred or not.

98. If the decision maker finds that misconduct did not occur they must notify the employee in writing within five working days of the meeting to thank them for their cooperation and confirm that no further action will be taken using Template Letter 11. If suspended, the decision maker should end the suspension as soon as this decision is made and write to the employee to tell them when they should return to work using Template Letter 13.

99. If the decision maker finds that misconduct did occur they need to decide the penalty and inform the employee. If suspended, the decision maker should end the suspension as soon as a decision on the outcome is made and write to the employee to tell them when they can return to work using Template Letter 13. If the outcome is dismissal the suspension is ended as soon as the dismissal is effective.

100. The decision maker must also notify the departmental security and/or fraud team of any cases involving breaches of security, loss, fraud or other compromise (including ‘leaks’) of

official and/or personal information or criminal matters. Where it is suspected that a criminal offence has been committed, the advice of the security team should be sought in relation to notifying the police. The Security Team can be contacted on


Deciding the penalty

101. The decision maker is accountable for their decision and must be able to demonstrate the thinking behind that decision under legal scrutiny and that the penalty is reasonable in view of all the circumstances.

102. In deciding an appropriate penalty the decision maker will need to consider:

● what penalty is appropriate for the level of misconduct (minor, serious or gross) ● the employee’s disciplinary record (including live warnings), general work record, level of

experience, position and length of service and whether this has any bearing on the penalty

● the conduct and behaviour of other employees, and that this employee is not being singled out

● any special circumstances or mitigation that might make it appropriate to adjust the severity of the penalty.

103. It is possible that similar offences may warrant a different penalty depending on its nature and impact; for instance, where an employee has failed to follow departmental procedure. Each case must be looked at on its own merits and relevant circumstances.

104. Penalties could be the following:

● First written warning - this penalty may be used when informal action has not resulted in improvement or for cases of minor misconduct that have been treated formally and where there is no live warning already in place. A first written warning is valid for 12 months from notification

● Final written warning - this penalty may be used when another incident of minor misconduct occurs during the live period of a first written warning or when the misconduct is serious. Normally valid for 12 months from notification, but may exceptionally be extended up to a total of 24 months. If an extension is being considered the decision maker should seek advice from CSHR Casework

● Dismissal - this penalty may be used for gross misconduct or when another incident of

misconduct occurs during the currency of a final written warning. Dismissal must always be a reasonable sanction and decision makers should be able to justify their decision to dismiss an employee.

Downgrading


If there is a suitable vacancy available, the decision maker may decide to offer the option of downgrading as an alternative to dismissal.

Downgrading represents a permanent change to an employee’s terms and conditions of employment. It cannot be imposed. The employee will need to confirm that they accept this change to their terms and conditions.

If they do not accept the offer of downgrading the penalty will be dismissal.

The offer of downgrading will not always be appropriate.

105. A final written warning or dismissal may be an appropriate first penalty if the misconduct is sufficiently serious.

106. For repeated misconduct where a warning is in place, penalties will normally follow in the above order. However, the process is not sequential so in some instances it may be appropriate for a first written warning to be followed by dismissal. This will depend on the seriousness of the misconduct. For example, if an employee receives a first written warning because of their behaviour towards an individual and they then victimise the individual that raised the complaint, the matter will be treated as potential gross misconduct and could result in dismissal.

How to consider mitigation

The discipline meeting gives the employee an opportunity to provide an explanation or information about mitigating circumstances (including supporting evidence), that they want taken into account when reaching a decision. This is separate to any evidence presented that disputes, undermines or highlights weaknesses in the case to answer.

When deciding an appropriate penalty the decision maker will need to take account of any mitigating factors that make it appropriate to adjust the severity of the penalty.

Mitigating factors may include:

● issues related to disability, or where a condition or medication can influence behaviour ● if the person reasonably felt provoked in some way, particularly where someone has

acted out of character ● exceptional work or personal pressures ● serious personal trauma ● if the person acted out of character, particularly where they have an unblemished record.

This list is not exhaustive.


You will also need to consider the nature of the misconduct as this may have a bearing on how you regard any mitigation. For example, if you believe the misconduct involved clear intent and was planned over a period of time or if the misconduct was an uncharacteristic outburst of short duration.

107. As the decision maker it is your role to use your judgement and decide whether the mitigating circumstances are sufficient to justify a lesser penalty, or perhaps no penalty.

Informing the employee of the decision

108. The decision maker should normally make a decision within five working days of the discipline meeting and immediately communicate this in writing to the employee using the appropriate template letter.

109. In cases of internal fraud where the penalty is dismissal (or would have been dismissal had the employee not resigned or otherwise left the department) the decision letter should also include a Fair Processing Notice. This tells the employee that their details will be shared with Cabinet Office for inclusion on the database of civil servants dismissed for internal fraud. This will result in a ban on re-employment in the Civil Service for five years.

Effective date of dismissal

110. A dismissal is effective only when communicated to the employee.

111. To be certain that the employee is aware of the dismissal, the decision maker can personally hand them the penalty letter and inform them in person that they have been dismissed. By this point the decision maker should have heard and fully considered all the evidence available, in addition to any mitigating circumstances that the employee would like to be considered. Alternatively, they can arrange for the dismissal letter to be sent by post to the employee, preferably requiring the employee's signed acceptance of receipt.

112. If dismissing by letter with or without notice the decision maker should refer to their records to check:

● that the employee has confirmed their availability to receive the decision in writing by post

● if the employee has planned holiday or other absence in the foreseeable future ● if any alternative arrangements have been made for communicating the decision.

113. If an employee is not going to be available to receive the letter, for example if they are on holiday or in hospital, the effective date of termination is the date the employee reads the letter or has a reasonable opportunity of reading it. It is not the date the decision was made


or the date the letter was written, posted or delivered. However, employees are expected to be available to receive communications following the disciplinary meeting and they should not deliberately avoid reading the letter.

114. A telephone call or email to the employee to check that the letter has been received may be helpful.

Appeals 115. There is one right of appeal in this procedure.

116. Grounds against which a disciplinary decision can be appealed are:

● procedural error where there is evidence the process was incorrectly followed, including instances of unreasonable interpretation of existing evidence, or

● new evidence has come to light that may change the outcome of the original decision or ● the sanction imposed was too severe or disproportionate to the misconduct.

117. Once the employee has received the written outcome of their disciplinary meeting from the decision maker, they have 10 working days to ensure the appeal manager receives their written appeal.

118. In most cases it should be possible for the appeal to be received within 10 working days. Where there has been a delay, managers should always carefully consider the circumstances leading to the delay, and review why the employee was unable to meet the deadline.

119. The written appeal must:

● make clear the grounds for the appeal and include all relevant new information or supporting evidence

● clearly state the desired outcome from the appeal.

120. Appeals will be heard by someone with sufficient authority and impartiality. Generally, appeal managers will be either the same grade as or more senior than the decision maker. However, equal or greater seniority than the decision maker is not a compulsory requirement for an appeal manager and may not always be possible due to operational challenges.

121. The appeal manager must be impartial and independent, have no prior involvement in the original decision or meeting and have no vested interest in the outcome of the appeal. The appeal manager would therefore not normally be from within the same line management


chain and would ideally be someone from a different part of the organisation. HR Business Partners and/or CSHR Casework will be able to provide guidance on identifying a suitable appeal manager but are not responsible for the final selection and appointment.

122. It is important that matters are dealt with fairly, impartially and objectively. If the employee has a genuine and reasonable concern about the integrity or impartiality of the appeal manager they should raise this with their HR Business Partner, (contact

Every effort should be made to allay or address their concerns but this does not mean they can choose who deals with the matter.

Support for appeal managers

The role of the appeal manager is vital in ensuring that all employees are treated with dignity and respect and that the disciplinary outcome is transparent and fair.

Civil Service Learning has resources available to managers to support them when faced with issues around discipline or dispute resolution. Please also take the time to watch this short video for appeal managers.

Anyone acting as an appeal manager should also have read and understood this policy, procedure and related products.

Appeal manager’s actions

123. Appeals should be dealt with without delay. It is the appeal manager’s responsibility to keep in contact with the employee throughout the appeal to let them know about any delays.

124. The role of the appeal manager is not to rehear the original case. It is to deal with the reasons given by the complainant for the original decision.

125. Wherever possible a meeting should be arranged to hear the appeal. An appeal should not normally be considered through correspondence.

126. Within five working days of receiving the written appeal the appeal manager should write to the employee using Template Letter 8 inviting them to a meeting.

127. The appeal manager should:

● give the employee at least five working days’ notice of the meeting, to allow them sufficient time to prepare

● tell them that they have the right to be accompanied by a trade union representative or work colleague


● arrange for a note taker to be present at the meeting.

128. A note of the meeting must be kept. The appeal manager should seek an independent colleague to do this and the employee should be notified in advance who the note taker will be. The note taker has no involvement in the meeting other than to make a record of the discussion.

129. Employees have a statutory right to be accompanied by a companion where a meeting could result in disciplinary action. If the employee or their companion cannot reasonably attend the meeting, the employee should be asked to propose new dates to allow the meeting to take place within five days of the original meeting date. Employees should be given a reasonable opportunity to make arrangements but the meeting should not be unreasonably delayed on the basis that a specific companion is unavailable. See also section on Employee support.

130. It is recognised that exceptionally, there may be delays in progressing matters. This may be due to the complexity of the case or because of short absences that are part of the everyday working environment, such as employee or appeal manager working patterns and/or short term absences due to annual leave, illness or disability. In these cases, all steps should be taken as soon as reasonably practical and the reasons for any delay recorded.

131. This can be a stressful and worrying time for all those involved. In addition to the companion, employees may find it helpful to talk to someone in confidence. This can help those participating in the process to remain objective, gather their thoughts and participate fully in meetings. It is important to acknowledge this and for the appeal manager to remind those involved about all the sources of support available during the process and after the matter has been concluded. See Employee support.

132. Where the grounds for the appeal are unclear the appeal manager may ask for clarification prior to the meeting.

133. Based on the detail of the written appeal, the appeal manager will conduct a review of the original decision they will decide whether it was reasonable for the decision maker to have made the decision they made based on the evidence provided, irrespective of whether they would have made the same decision.

134. In very exceptional cases where the appeal has provided evidence to support serious concerns over the way the process was conducted, a full re-hearing of the case may be appropriate. Disagreement with the outcome and minor procedural failings do not in themselves warrant a re-hearing. A decision to hold a re-hearing must be approved in advance by Head of HR Services


135. Where an appeal has been raised because of new evidence that has come to light, the role of the appeal manager is to assess the impact this new evidence has on the original decision.

136. At the end of the meeting, the appeal manager should:

● explain that the written decision, including the reasons for it, will be issued within five working days. This should also include the written notes of the meeting.

● confirm that their decision is final and that there is no further right of appeal.

137. After the appeal meeting the appeal manager will decide whether to uphold the appeal or not and inform the employee of the outcome in writing using Template Letter 9.

138. The appeal manager should not be afraid to overturn a decision if it becomes apparent that it was not soundly based. If the decision is overturned the appeal manager should be clear about the implications and next steps and discuss any lessons learned with HR.

139. When making a decision the appeal manager will need to take into account any mitigating factors and whether they could have had a significant impact on the original decision. See How to consider mitigation.

140. An appeal should not result in any increase in penalty as this may deter individuals from appealing. Where new evidence that results in new or more serious allegations against the employee come to light during the appeal process, the new allegations should not be dealt with at the appeal hearing simply by increasing the disciplinary sanction. The correct way to deal with the issue is to adjourn the appeal hearing and then commence a disciplinary investigation into the new allegations. If there is a case to answer, this should result in a new disciplinary hearing being convened.

141. The outcome of the appeal should be shared with HR and the original decision maker.

Disclosure and confidentiality 142. The employee who is the subject of the discipline procedure will see the full discipline

investigation report (including annexes). They can then choose whether to share this with their companion (i.e. the TU representative or work colleague who acted as their companion at the discipline meeting).

143. Employees need to be aware that sharing the report with any person other than those with a legitimate reason, such as companions, would be viewed as serious misconduct.


144. The investigator will redact any confidential information in the report (such as names of third parties who have not been interviewed as part of the process, and information such as dates of birth and addresses) prior to sharing the report with the decision maker. Any redactions should not undermine the employee’s ability to present their case.

145. If disciplinary action is taken following a complaint under the dispute resolution policy, the complainant will be told whether it was upheld when the dispute resolution is concluded and it will normally be appropriate for them to also be told whether any action was taken. On some occasions it may not be appropriate, and decision makers are encouraged to speak to their HR Business Partner if they have any questions about this.

146. Disciplinary matters are strictly confidential. Confidentiality applies to everyone involved in the matter and is equally important after the matter has concluded. It is a disciplinary offence to breach confidentiality or disclose confidential information relating to a disciplinary matter.

147. The need to maintain confidentiality doesn’t prevent someone having the right to report a

concern under the Public Interest Disclosure Act 1998 (PIDA). Details of the process to follow can be found in GLD’s whistleblowing procedure.

Record keeping

148. It is important that a written record is kept at all stages of the process. Following conclusion of the formal process the decision maker should send copies of the documents to

The documents will be uploaded to the employee’s electronic personal file. If CSHR Casework have been involved in supporting the case, they too will need a copy of the relevant documents.

149. Records must be protectively marked, kept securely and handled in line with departmental record management policy. Employees located in client departments who are using non-GLD IT equipment should follow the data protection procedures of their client department.

150. At all stages, documentation should be managed in compliance with the requirements of the current data protection legislation.

Data Protection

151. Personal data collected as part of this policy will be processed in accordance with GLDs privacy notice.

152. The privacy notice explains what personal data GLD holds about you, how we collect it, and how we will use and may share information about you. Inappropriate access or disclosure of employee data constitutes a data breach and should be reported in accordance with the


department’s data protection policy immediately. It may also constitute a disciplinary offence,

which will be dealt with under the department’s disciplinary procedure.

If the discipline investigation concludes that no disciplinary action in necessary

153. Under the fair processing principles of data protection legislation information should not be retained about an employee that is not relevant. Therefore, if it is decided that no disciplinary action is necessary, because on the balance of probability it is the decision maker’s genuine

and reasonable belief that misconduct did not occur, information gathered during the investigation should not be kept. If there are exceptional reasons for keeping it, HR advice should be sought.

154. However, if allegations against the employee are substantiated, but due to mitigating circumstances no disciplinary action is necessary, it may be appropriate to retain the information in line with the departmental records management policy.


If this is not possible, the manager must ensure a thorough handover of the case to the new manager, including all notes and other relevant documentation. Once the handover is complete, the new manager should arrange to meet with the employee quickly to make sure that the discipline process is not disrupted.

If the new manager is not in place at the time, the employee’s countersigning manager should normally appoint somebody else to take over the case.

158. What happens if an employee resigns before the disciplinary process is concluded?

Where an employee resigns during the course of disciplinary action, the process should be continued to conclusion wherever possible while the employee is serving their notice.

If the outcome of disciplinary action is dismissal, this would replace resignation as the reason

for the contract ending provided that the notice period required of the employer is shorter than the remaining period of the employee's notice.

In some cases of gross misconduct, summary dismissal will take effect immediately without a requirement to give notice.

If the process cannot be concluded before the employee’s departure, the employee should be informed that the process will continue and they will be invited to the disciplinary meetings.

If there is enough evidence to conclude the process, it should be concluded in a normal way.

If a disciplinary penalty is imposed, it will be recorded on the employee’s personal HR file and held in line with the departmental records management policy. The employee will be notified of the outcome in writing, including their right to appeal.

If the outcome would have been dismissal the record will state that the employee resigned but the disciplinary decision will still be recorded.

If there isn’t enough evidence to conclude the process, the process will be stopped due to lack of

evidence. This should be recorded by the decision maker and the appropriate information put on the employee’s personal HR file explaining that they were subject to a discipline process which

could not be concluded due to the lack of evidence, owing to the employee’s departure.

If dismissal is/or would have been due to internal fraud, the decision letter should also include a Fair Processing Notice. This tells the employee that their details will be shared with Cabinet Office for inclusion on the Internal Fraud Database and will result in a ban on re-employment in the Civil Service for five years.


In 2015, the Minister for the Cabinet Office announced that the public sector would take a ‘zero

tolerance’ approach to internal fraud. As a result, in addition to carrying out all investigations to their natural conclusion, regardless of whether an employee resigns, the termination of any investigation in such circumstances should be signed off by your Permanent Secretary and reported to Cabinet Office via HR.

159. What happens if an employee is offered a post in another department whilst the disciplinary process is ongoing?

If someone is offered a post in another department during the disciplinary process, every attempt should be made to conclude the matter before they leave.

If the process cannot be concluded before the individual leaves the department, the employee should be informed that the process will continue and that they will be invited to the investigation and/or disciplinary meeting.

If there is sufficient evidence to conclude the process after the employee has left, it should be concluded in a normal way.

If a disciplinary penalty would have been imposed the employee should be notified of the outcome in writing, including their right to appeal. Depending on the nature and seriousness of the misconduct it may be appropriate to inform the new department. In these circumstances HR will need to seek legal advice on a case by case basis.

If misconduct comes to light after a former employee has transferred to another department it may be appropriate to inform the new department so they can consider whether to take action. This will depend on the nature and seriousness of the misconduct. In these circumstances HR will need to seek legal advice on a case by case basis.

160. How should cases involving disciplinary allegations against an employee who is a trade union representative be treated?

If the employee concerned is a trade union representative the matter should be discussed with an official employed by the trade union, after obtaining the employee’s agreement. The normal

disciplinary procedure should then be followed. If the employee does not agree to the matter being discussed with the official they must confirm this in writing to the relevant manager and to HR Services who will store the written confirmation securely on the employee’s electronic profile.

161. What happens if an investigation reveals that the decision maker is somehow implicated?


In these circumstances, the investigation manager will refer the case to an HR Business Partner so the matter can be referred to a different decision maker to deal with. The decision maker must be advised by the investigating manager that they can no longer act in this capacity and informed if they are also now the subject of disciplinary action or if they will be interviewed as a witness.


Annex A

Examples of misconduct The following examples are a guide only. The examples listed are neither exhaustive nor mutually exclusive.

Minor misconduct: isolated instances or minor breaches of the standards expected, which may include:

● poor time keeping ● minor safety violations ● failure to follow departmental policy/procedure (whether this is minor or serious

misconduct will depend on the policy and consequence) with minor consequences. Managers may wish to seek advice from CSHR Casework on deciding whether it is minor or serious

● minor misuse of departmental assets such as phone/email/internet. ● Breaches in disclosure of personal data and confidentiality ● isolated and unintentional minor instances of behaviour which reasonably make others

feel uncomfortable.

Serious misconduct: repeated minor offences or significant breaches of the standards expected, which may include:

● failure to follow departmental policy/procedure, for example, serious insubordination ● serious misuse of departmental assets such as phone/email/internet ● failure in their duty of care consistent with management responsibility ● inappropriate behaviour outside of the workplace that may represent a breach of the

Civil Service Code and/or is likely to bring the department into disrepute, for example, being drunk and disorderly outside of working hours in a situation where the department may be identified

● unauthorised disclosure of official information such as leaks to the media or other bodies (with low impact)

● smoking in buildings ● failure to follow reasonable instructions with serious consequences, for example,

damage to property ● exceeding level of authority with negative impact on the business ● unintentional bullying and harassment and discrimination


● offensive personal behaviour, for example, verbal abuse of a colleague ● being unfit to work through the use of drugs or alcohol ● serious breaches of the Civil Service Code ● failure to act in a timely manner consistent with management responsibility, when

matters of bullying, harassment or discrimination come to light or when issues are raised through dispute resolution

● vexatious or malicious grievances (see dispute resolution policy).

Gross misconduct: repeated serious offences or conduct serious enough to do irreparable damage to the working relationship between the employee and employer, which may include:

● theft, corruption or fraud ● physical violence, threatening behaviour and more severe examples of bullying,

harassment and discrimination, particularly where it is intentional and conscious ● victimisation or unfair treatment of someone because they have raised a complaint

about bullying, harassment or discrimination, or another workplace issue. ● significant or repeated breaches of security ● leaks of confidential information to the media or social media sites ● significant or repeated breaches of health and safety rules ● being unfit to work through the use of drugs or alcohol with serious consequences for

department/customers/public ● vexatious or malicious grievances with serious consequences for an individual/the

department/customers/public (see the dispute resolution policy) ● certain instances of bringing the department into disrepute, for example, posting

defamatory comments or unauthorised information about the department/colleagues/customers/ministers on social media sites

● unauthorised disclosure of official information such as leaks to the media or other bodies (with medium to high impact)

● falsification of records. ● gross negligence ● insubordination resulting in significant impact, for example, reputational damage ● causing major loss, damage, or injury through serious negligence ● deliberate and gross misuse or damage to departmental property ● repeated or persistent failure to follow reasonable instructions ● significant or repeated breach of the Civil Service Code ● very offensive behaviour ● a serious criminal conviction.


Annex B

Fair Processing Notice

The Government Legal Department (GLD) will provide the Cabinet Office with information about employees who are dismissed for internal fraud or dishonesty offences. This will also apply to employees who resign or otherwise leave but who, because of an adverse decision by the decision maker, would have been dismissed for internal fraud or dishonesty had they continued in employment.

The Cabinet Office definition of internal fraud is:

1. Dishonest or fraudulent conduct, in the course of employment in the Civil Service, with a view to gain for the employee or another person;

2. For employees of DWP only, this includes dishonest or fraudulent conduct relating to benefits, even if not connected with employment; and

3. For employees of HMRC only this includes dishonest or fraudulent conduct relating to tax duties, contributions or payments administered by HMRC even if not connected with employment.

4. For Home Office employees only this includes dishonest or fraudulent conduct relating to immigration, passport, asylum or nationality matters even if not connected with employment.

The details that will be sent to the Cabinet Office are:

• Your name

• Your date of birth

• Your National Insurance number

• Brief description of the type of misconduct

• Date you left the department

The Cabinet Office will input this information onto the Internal Fraud Database (IFD). This information will be retained by the Cabinet Office on the IFD for a period of five years from the date of dismissal (or the date employment ended).

Civil Service Resourcing (or the department team which conducts pre-employment checks) check the IFD when applicants for Civil Service posts are successful at interview, as part of their recruitment screening checks. Inclusion on the IFD means you will be banned from employment at a participating department during the five year period.

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