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Discipline

This guide for RCN members gives advice on disciplinary processes including suspension, investigations, hearings, penalties and appeals.

If you are involved in a disciplinary matter

If you are implicated in a disciplinary matter, contact us on 0345 7726100 without delay and read the following information. We will help you prepare your case, providing you were in membership at the time of the incident that has led to the disciplinary hearing.

If you are asked to provide a statement for a workplace investigation, follow our statement writing advice. You can call us to arrange for it to be checked before you hand it in.

If you are called as a witness for a disciplinary hearing read the disciplinary policy in your workplace. Your Human Resources department should also be able to give some support. If you are concerned that being a witness in the hearing could result in any action being taken against you then you should contact us. Read our advice for witnesses.

If you are in the UK on a visa and are facing disciplinary action, contact us for help from our Immigration Advice Service.

If you are considering resigning from your job during the disciplinary process discuss this with us before taking any action.

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Read your employer's disciplinary policies

Your employer should have written procedures for handling disciplinary situations. These should be available to all staff. It is very important that you read these.

Your employer should be fair and reasonable when conducting a disciplinary and all employers should follow the ACAS Code of Practice on Discipline and Grievance. In Northern Ireland, please see the Labour Relations Agency's Code of Practice on Disciplinary and Grievance Procedures.

Where appropriate, your employer should try to address concerns about employees informally. If this fails, or is inappropriate to the circumstances, your employer may start the disciplinary process.

It's important you record any instances where your employer fails to follow local guidance or best practice codes. Your employer's failure to adhere to agreed policies, practices and procedures could provide grounds for appeal.

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Investigations

Employers have a duty to investigate allegations, misconduct, serious incidents (such as drug errors) and formal complaints. All reported incidents must be investigated in line with your employer's policy.

Your employer should carry out preliminary investigations to establish the facts as soon as possible.

The investigation should take into account the full circumstances and context of the event. If the investigation centres on a medication error, you may be required to stop administering drugs while the investigation is underway.

As health care practitioners have a contractual obligation to co-operate with internal or external investigations (and nurses are bound by the NMC Code), you should make yourself available to attend meetings.

Your employer should, though, consider requests to contact specific colleagues who may be needed to help prepare your case, such as witnesses or those providing character references.

If you are asked to attend an investigatory meeting, contact us and read our advice on investigations.

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Suspension

If you have been suspended please, contact us on 0345 7726100

A suspension should not imply guilt and, if you are a suspended employee, this should be on full pay. If you are an agency or bank nurse you may not be entitled to pay whilst suspended.

If you hold a second contract with another employer you are not automatically suspended from this role. However, you may need to inform your second employer that you have been suspended. The NMC Code places a professional obligation on you to inform any employers you work for if your fitness to practise is called into question.

We advise that you do not seek alternative work whilst suspended.

While you are suspended, your RCN representative can contact specified colleagues to help you prepare your case, where appropriate.

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Hearing dates

After the investigatory stage you should be told in writing whether a disciplinary hearing has been arranged.

The letter should outline the issues and possible penalties, where and when the hearing will take place, the names of any witnesses and your right to be accompanied. You are also entitled to all of the information and documents relating to the case, in advance of the hearing. 

You should make every effort to attend the original hearing date. If you have a legitimate reason why you cannot attend, you can request a postponement. A legitimate reason might be that you have not been given enough notice to meet with your representative and prepare your case, or your representative is unavailable on the proposed date. The alternative date must be reasonable and within five working days of the original hearing date (beginning the day after). Working days for this purpose exclude Saturday, Sunday and public holidays.

If you are off sick and cannot attend the first hearing obtain a medical certificate or support from occupational health, where possible.

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Hearing process

The hearing panel usually consists of a chairperson (senior manager), a human resource adviser and possibly a note taker. In the NHS the investigating officer may present the findings to the panel. The location should be private with no interruptions.

The chairperson should introduce those present and explain the purpose of the hearing.

Management will outline their case then listen to your defence. You can refute any allegations or statements, ask questions, present evidence and question witnesses.

Your representative is entitled to address the hearing panel and ask questions on your behalf. A union representative (or chosen companion) can address the hearing, challenge any inaccuracies or procedural errors, present mitigating circumstances and sum up your case. You can confer with them during the interview (somewhere private) and they can address the hearing panel, but not answer on your behalf. There is generally no legal right to be accompanied by a solicitor. Your representative is allowed to confer with you before and after the hearing.

You should also be given the opportunity to call relevant witnesses, ask questions and challenge or raise points about any information provided by witnesses. If you intend to question any witness or if you refute the witness statements you should notify management beforehand.

The panel will consider the evidence presented, the facts, any mitigating or contributory factors and whether a disciplinary penalty is justified.

You should be informed in writing of the hearing outcome and the grounds for the decision. You should be provided with the opportunity to agree the notes or minutes of the hearing. You or your union representative (or chosen companion) should take notes at any meeting.

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Penalties

Disciplinary procedures usually have a range of penalties. Informal cautions, advice, counselling or mediation should normally precede formal warnings. Penalties can range from verbal warnings to summary dismissal for serious cases. Please see below for more examples.

Details about any penalty you are given, including how long it will remain on your record, should be confirmed in writing. It should be consistent with local policy and similar cases. Time limits for appeal must be set out clearly.

The Data Protection Employment Practices Code available from the Information Commissioner’s Office (ICO) recommends that a system should be set up to remove spent warnings from an individual’s record, where such removal is a requirement of the disciplinary procedure. This is available at www.ico.org.uk

Verbal warnings

A verbal warning gives you notice that performance needs to improve or that certain behaviours/conduct need to change. Verbal warnings are usually given for minor issues like persistent lateness or absenteeism. They still form part of the disciplinary process, and are kept on file for a specified time. You may be required to sign to say you have received the verbal warning.

First written warning

A first written warning should be kept on file and may be used as a basis for review and/or monitoring performance or conduct for a specified period. Formal warnings should set out the performance or conduct issues identified, the changes required and the time frames for the expected changes to take place.

You should be told how long the warning will remain current and the consequences of further misconduct, or failure to improve performance, within this time. It should be made clear that failure to make the required improvements could lead to a final written warning and ultimately dismissal.

In between the first and final warnings the employer can extend performance review periods for justifiable and specified reasons.

Final written warning

This is usually the last stage before demotion or dismissal. The warning letter should outline the failures, acts or omissions, the possible penalties, time frames for action and your right to appeal.

The employer is entitled to dismiss if the unsatisfactory performance/conduct continues or further incidents occur.

Dismissal

A dismissal occurs when your contract is terminated by your employer. If you disagree with the dismissal, you should discuss your options with your representative. You may have grounds for appeal, a grievance or tribunal claim.

Under employment law, the employer can give you notice and terminate your contract at any time during the first two years of employment.

Summary dismissal

Summary dismissal may occur in serious cases of gross misconduct and results in dismissal without notice.

The actions listed above could also result in NMC investigation and pose a risk to your nurse’s registration.

Alternative disciplinary penalties can be imposed, such as transfer to another area, suspension without pay, demotion, or loss of increment (often known as action short of dismissal). Such penalties can only be imposed if allowed for in your contract or your employer’s local policy.

The decision to dismiss should be made by senior management and you should be informed in writing as soon as possible. Before considering dismissal, the employer should review all aspects of your case alongside your general employment record, to decide whether the penalty is reasonable in the circumstances.

You should be given the reasons for the dismissal and the date the contract will terminate, and be provided with information about your right of appeal.

You may have an employment tribunal claim for wrongful dismissal or unfair dismissal (industrial tribunal in Northern Ireland) if your employer dismisses you without notice or without good reason. Time limits apply. Please see our dismissal advice without delay.

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Appeals

The outcome letter from your hearing and employer’s local policy will outline the time limits for you to submit an appeal. You need to ensure that your appeal is submitted, in writing, to your employer within this time frame. You will be expected to include the reason for your appeal. Possible grounds of appeal are:

  • the finding is unfair
  • new evidence has come to light
  • the procedures were not used consistently or correctly.

The appeal should be heard by a higher authority than the original hearing panel and presided over by someone not previously involved. You should be notified in writing of the outcome of the appeal hearing.

In the case of small organisations (fewer than 20 staff) the manager may have to chair the initial hearing and the appeal but must endeavour to act as impartially as possible.

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Employment tribunal time limits

There are very rigid time limits for submitting claims to an employment/industrial tribunal. For most claims this is three months less one day from the date of the incident, e.g. act of discrimination/dismissal – this is called the limitation date.

The length of time that is taken to investigate and deal with disciplinary and grievance matters by employers can often take up a similar period of time, or in some cases a final decision is not reached until after the limitation date for lodging a claim has expired. As a result employment tribunal limitation dates can easily be missed. It is therefore vital that you seek our advice as soon as possible and at least six weeks before the expiry of the employment tribunal limitation date. This enables the legal team to assess any potential claim and advise if it can be supported by us in good time. Read our advice on employment/industrial tribunals.

For England, Wales and Scotland, in order to bring a claim in the tribunal it is obligatory for all claimants to notify their tribunal claim to ACAS for a process of early conciliation. Notification to ACAS must take place before the tribunal claim submission deadline – as outlined above – has passed, otherwise the right to bring a claim in the tribunal may be affected. For more information see ACAS early conciliation.

For Northern Ireland, you should consider using a pre-claim conciliation service. Find out more from the Labour Relations Agency

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Grievance procedures

Discipline and grievance procedures are closely linked. If you want to raise a grievance during the process it may be appropriate to suspend the disciplinary procedure for a short period to allow the grievance to be considered. In cases where the disciplinary and grievance are related, both may be heard together. Please discuss this with your RCN representative before taking any action. Read our information on grievance.

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Disciplining trade union representatives

If you are a trade union representative facing disciplinary action, contact your branch chair or regional office immediately. The employer should also speak to a full time officer as soon as possible, with the consent of the representative. The employer must ensure that any disciplinary action is not related to trade union activity or membership, as this is unlawful.

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Capability and performance

Capability and performance issues could result in disciplinary action if expected and agreed improvements aren't made. For more information see our capability advice.

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Counselling

Being involved in a disciplinary matter can be huge worry. Drug errors, in particular, can knock your confidence. If you are not receiving counseling elsewhere, you can access the RCN Counselling Service. This is a free and confidential service that can help you deal with any challenging emotional issues.  Find out more about making an appointment.

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Further information

ACAS Code of Practice and Discipline and Grievance - provides free and impartial advice to employers and employees in Britain on working relations and employment law

Labour Relations Agency - Non departmental public body responsible for improving employment relations in Northern Ireland


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Call the RCN on: 03457726100