Ordinance XXXV

This ordinance shall apply to all staff to whom paragraph 3 of Statute XXI refers (staff where a substantial proportion of their duties involve the provision of teaching, learning or research). Provisions for all other staff shall be found in the relevant Conditions of Service.

1. Policy and procedure

1.1  This procedure is applicable to all University employees. No member of staff who is covered by Statue XXI shall be subject to disciplinary sanction as a result of appropriately exercising their right to academic freedom.

1.2  No member of staff shall be subject to disciplinary sanction as a result of appropriately exercising their right to freedom of speech.”

1.3  Throughout this policy and procedure 'days' refers to calendar days, unless specified otherwise.

1.4  All written documentation in relation to any part of this procedure should be considered within the Loughborough University Staff Data Privacy Notice.

1.5  Disciplinary action may be necessary where:

• Rules, regulations and codes of practice/conduct have not been adhered to;
• An employee's conduct is detrimental to the interests of the University, its staff, partners, visitors or students, or the maintenance of discipline.
• An employee fails to maintain an acceptable standard of performance or behaviour, other than for medical reasons which will be dealt with using the capability procedure.
• An employee refuses to perform duties properly allotted by an appropriate person.

1.6  The procedure applies to all staff employed under a Contract of Service by Loughborough University, (hereinafter referred to as the University). The procedure is not applicable to those working under a ‘contract for services’.

1.7  All employees will be referred to this document in their Statements of Terms and Conditions of Employment.

1.8  This policy should be read in conjunction with the University’s Code of Conduct.

1.9  No formal disciplinary action will be taken against an employee until the case has been appropriately investigated, in accordance with this policy.

1.10  The employee will be advised of the nature of the complaint and will be given the opportunity to state their case before any disciplinary action is taken.

1.11  At all stages of the formal disciplinary procedure, an employee will have the right to be accompanied by a Trade Union representative (as defined in the ACAS Code of Practice) (including a full time officer), or a University colleague of their choice. During investigations and investigatory interviews, the member of staff implicated in the allegation(s) may request a Trade Union representative or colleague to be present and wherever possible, this will be accommodated providing this does not unduly delay the process. Managers are reminded that the early involvement of a Trade Union representative can help with the resolution of the problems. The representative/companion should be allowed the opportunity to confer with the employee during any investigatory meeting, but may not answer questions on the employee’s behalf.

1.12  No employee will be dismissed for a first breach of discipline, except in the case of gross misconduct, when the penalty may be dismissal without either notice or payment in lieu of notice (i.e. summary dismissal).

1.13  The Disciplinary Procedure may be implemented at any stage if the employee's alleged misconduct warrants such action, but in all cases must be preceded by an investigation.

1.14  Any allegations against an employee must be reported to their line manager in the first instance. Any manager seeking to instigate a formal disciplinary process should consult with HR prior to doing so.

1.15  HR will provide advice and assistance throughout the use of the procedure.

1.16  All matters dealt with under this procedure will be kept strictly confidential by all parties involved.

1.17  Where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently. Advice must always be sought from HR in such situations.  

1.18  At all stages of this procedure, due consideration will be given to making adjustments to enable members of staff to participate fully in meetings and hearings, particularly if they have a disability. This may include ensuring rooms are accessible or arranging for an interpreter or using software such as Skype or Cisco Jabber to be present for example.

1.19  It is strongly recommended that managers responsible for dealing with disciplinary matters attend appropriate University training.

1.20  Where a matter is subject to a police investigation, action under this Ordinance may continue as directed by the Chief Operating Officer (or if the matter involves the Chief Operating Officer it will be directed by the Vice Chancellor), but no action will be taken that may be liable to interfere with a police investigation or obstruct justice.

1.21  During the investigatory phase of any criminal or disciplinary proceedings, the University may choose to apply restrictions to the alleged perpetrator to safeguard both parties, to minimize the likelihood of further contact between the two parties and/or at the request of the investigating authorities. In doing so, the University will act proportionately, reasonably and on the presumption of innocence on the part of the subject of the allegations.

2. Informal stage

2.1  Minor faults should be dealt with informally by the relevant line manager.

2.2  This may involve a private discussion with the employee to advise them of the problem and what is needed to rectify it.  Additionally, firmer action to warn that if conduct or performance does not improve, then formal disciplinary action will be taken and may include:

• Reminding staff of standards of conduct and performance expected of them.
• Advising an individual about any concerns about their performance, standards of behaviour and the potential consequences of failing to address those concerns satisfactorily. 
• Providing informal advice or guidance.

2.3  Records should be retained of informal discussions about conduct issues

3. Formal disciplinary procedure

In cases where informal action has not brought the required improvement, or where the nature of the allegation warrants it, the formal disciplinary procedure should be implemented. 

Action to be taken prior to a disciplinary hearing

3.1 Investigation

3.1.1  Prior to formal disciplinary action being taken, the facts of the case must be investigated. It is important to carry out necessary investigations of potential disciplinary matters, impartially and without unreasonable delay.  In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, this will be a collation of evidence by the employer for use at a disciplinary hearing.

3.1.2  The investigation process will depend on the nature of the alleged misconduct and whether the employee has admitted to that misconduct. Where the facts are not in dispute, the investigation is likely to be short. (see section 3.5 fast-track process).

3.1.3  The person(s) designated to conduct the investigation will be nominated by the responsible senior manager of the School or Service, normally in conjunction with the Director of Human Resources and Organisational Development or their nominee. This person will be referred to as the investigating manager and this person(s) must seek advice and guidance on the process from HR during the investigation.

3.1.4  Any investigation should:

• Identify the alleged breach of discipline.
• Establish if the standards of other employees are acceptable or whether this employee is being unfairly singled out.
• Consider whether the alleged breach was deliberate or accidental.
• If the alleged breach of discipline is a result of failure to follow published rules, policies or procedures, establish whether the employee has been made aware of them or could be reasonably expected to be aware of them.
• Obtain all available information about the allegation, including written statements etc, where appropriate.
• Advise the employee concerned, at the earliest possible stage, of what is happening and the reasons. The point at which this occurs will depend on a number of factors, including the amount of information available.
• Notes should be taken of the investigatory meetings and should be shared with the individual electronically before any investigation is completed. Any disagreement in respect of the notes should be reflected in the investigatory report.
• At the end of the investigation, the investigating manager will produce a report outlining the findings of the investigation only. They are not permitted to make recommendations or pass judgement on the findings.

3.2 Action if employee is a Trade Union Representative

If the employee concerned is a Trade Union Steward or Branch Official or, in the case of a breach of Health and Safety Rules, a Health and Safety Representative, there is a requirement, subject to the agreement of the employee, to inform the Full Time officer of the relevant Union that the formal disciplinary procedure is to be implemented. This will normally be undertaken by the Director of Human Resources and Organisational Development or their nominee.

3.3 Informing employee of allegations and date of disciplinary interview 

3.3.1  If it is decided to proceed to a formal disciplinary hearing, the employee must be informed of the disciplinary allegations in writing, detailing the following as appropriate:

• Nature of allegations
• Date/time/place of alleged incident(s).
• Other staff, students or persons involved in the incident(s).
• Date, time and location of disciplinary hearing.
• Their right to be accompanied by a colleague or Trade Union representative and to bring witnesses to the disciplinary hearing.
• If the allegation(s) are deemed to be potential gross misconduct, this must be confirmed in the letter.
• Copies of witness statements.
• Copies of all documentation management intend to rely upon.
• Copy of the Disciplinary Procedure.

3.3.2  The employee must be given a minimum of ten days’ notice of the disciplinary hearing to allow time for consultation with any representative or witnesses.

3.3.3  The formal notice to the employee of disciplinary allegations will normally be issued by the Chair of the disciplinary hearing.

3.3.4  Witness statements and other papers relevant to the case should be given to the employee with the notice of disciplinary allegations, or as soon as possible after its issue, but not later than seven days before the hearing, in order to allow the employee maximum time to prepare their explanation.

3.3.5  Every effort should be made to maintain confidentiality when distributing the documents for the hearing. The cover and contents page must be marked ‘Strictly Confidential’ as a minimum. All parties should be made aware that breaking confidentiality may constitute a disciplinary matter.

3.3.6  The employee, or their representative, (if applicable) should submit to the responsible/disciplining manager, at least five days prior to the disciplinary hearing, any documentary evidence, witness statements, and the names of witnesses who they wish to be in attendance at the disciplinary hearing.

3.3.7  None of the above prevents new information being tabled at the disciplinary hearing for consideration. This may necessitate an adjournment for an appropriate period which will be determined by the responsible/disciplining manager, in consultation with the management and employee representatives.

3.3.8  The amount of time between identification of the alleged breach of discipline, the preliminary investigation and notification to the employee, must be kept to a minimum. 

3.4 Fast-Track Process

3.4.1  If the employee admits to their misconduct, and all parties agree, the case can proceed to an outcome without the need for a hearing. In such cases, however, a full investigation must be carried out, and the employee must be allowed to account for their conduct and put forward any mitigating factors.

3.4.2  Before proceeding to a fast-track process, the employee must be satisfied that they understand the process and the potential implications of accepting a sanction at this stage.

3.4.3  There are certain cases where it would not be appropriate to apply a fast-track process and, in these cases, this procedure must be followed in full. Those circumstances are where the case is potential gross misconduct or in cases of repeat misconduct where the employee has already received a final written warning.

3.4.4  Under no circumstances should the fast-track process be used to negotiate a lesser sanction for the employee.

3.4.5  Upon being given a sanction, the employee still has the right to appeal, as set out in section 6 of this procedure.

3.4.6  At any point during the fast-track process, the responsible/disciplining manager has the right to refer the case to a full hearing. In exceptional circumstances, the responsible/disciplining manager may also refuse to allow the case to be fast-tracked.

3.5 The Disciplinary Hearing

The aim of the Disciplinary Hearing is to establish all the facts available regarding the alleged breach of discipline, giving every opportunity for the employee to state their case, including any mitigating circumstances, before any decision is taken.

3.5.1  An HR representative should be present to provide professional advice to the responsible/disciplining manager and assist the proceedings, but the outcome of the hearing will be decided by the responsible/disciplining manager.

3.5.2  For matters for which a sanction up to and including a formal oral warning may be appropriate, the Dean or Head of Service will be the responsible/disciplining manager.

3.5.3  The following table provides details on who is authorised to chair disciplinary meetings and issue disciplinary sanctions.

3.5.4  Notes of the hearing will be taken by management and with the consent of all parties the Disciplinary Hearing will be recorded electronically. Following the Hearing, a copy of the file will be provided to the employee on an encrypted audio device (e.g. USB).

3.5.5  Hearings should be scheduled at a time deemed to be reasonable/suitable for the employee and their representative. Every effort should be made to ensure witnesses are available at the hearing. Both parties are responsible for contacting their own witnesses, informing them of the date and location of the hearing, and providing them with any relevant documentation. Any witnesses will normally be required to make written statements, prior to the disciplinary hearing. Statements may be submitted by a witness unable to attend the Disciplinary Hearing, but it must be accepted that these are documents which have not been subject to challenge. 

3.5.6  If the Disciplining Manager feels that a witness has been called unnecessarily they shall ask the employee to explain the significance of the witness. If the Disciplining Manager, on receipt of this additional information, feels that the witness is not required, the witness will not be permitted to attend.

3.5.7  An alternative date may be arranged where an employee requests that the hearing is postponed due to circumstances outside their control and not foreseeable when the original date was agreed. Where a postponement is agreed, this should be confirmed in writing with the new date for the hearing. Any further request for postponement may be refused unless there are exceptional circumstances.

3.5.8  If the employee is absent due to sickness prior to the hearing, the individual may be required to see the University's Occupational Health Adviser to assess their fitness to attend a hearing, and to give advice on any special requirements or adjustments for the hearing. Human Resources will make the necessary arrangements.

3.5.9  If the employee and/or their representative does not attend the disciplinary hearing, the reason for this must be ascertained, if possible. If the circumstances were beyond the employee’s control and could not be foreseen, e.g. illness, another hearing should be arranged. If the hearing is rearranged and the employee fails to attend a second time, a decision may be made in the employee’s absence. If a decision is taken to proceed in the absence of the employee and/or their representative, the employee may be given the opportunity to submit a further written representation.

3.6 Procedure at hearing

It is the expectation that this procedure will be followed in all Disciplinary Hearings. Exceptionally this may be varied, with the agreement of both parties.

3.6.1   At the commencement of the Disciplinary Hearing, the manager hearing the case will explain the purpose of the hearing, how the hearing will be conducted, the roles of those attending and the possible outcomes.

3.6.2   A representative of management will present the management case and be asked to detail the allegations and present the evidence, including the calling of witnesses. The employee and/or their companion, the manager hearing the case and the HR representative advising him/her/them, will have the opportunity to question the witnesses and the management representative presenting the case.

3.6.3   The employee and/or their representative will be given an opportunity to present their case and call relevant witnesses. The management representative, the manager hearing the case and the HR representative advising them, will have opportunity to question the employee and the witnesses.

3.6.4   At any point during the hearing, either side may request an adjournment to confer or to seek further information which the disciplinary manager will not unreasonably refused.

3.6.5   The management representative should summarise the management case.

3.6.6   The employee, or their representative, should summarise their case.

3.6.7   The hearing will be adjourned to consider all the information presented before a decision is reached. If there is need to check certain facts, an adjournment may be called and both parties will be advised accordingly. The Chair’s deliberations will not be recorded.

4. Disciplinary action

4.1   The manager hearing the case should decide if a disciplinary penalty, as detailed below, is appropriate, taking the following into consideration: 

1. whether the Disciplinary Procedure and Standards of Conduct indicate what action will result from the particular misconduct;
2. the action taken in similar cases in the past;
3. any special circumstances which might make it appropriate to lessen the severity of action which should be taken;
4. whether the behaviour was deliberate or accidental;
5. the employee's current disciplinary record, general employment record, position and length of service;
6. whether the action proposed is reasonable, in view of all the circumstances.

4.2 Disciplinary penalties

4.2.1 Stage 1 - Formal Verbal Warning

If conduct or performance does not meet acceptable standards, a FORMAL VERBAL WARNING may be given. A note of the formal Verbal warning will be kept on the employee’s HR file, but will be disregarded after six months, subject to satisfactory conduct and performance.

The employee will be informed, in writing, of the standards expected and action to be taken by the employee and employer to achieve and monitor the improvement required.  Failure to achieve the standard required will result in further disciplinary action.

4.2.2 Stage 2 - First Written Warning

In the case of a serious breach of discipline, or if a further offence occurs similar to that for which disciplinary action is still current, a FIRST WRITTEN WARNING may be given.  The warning will be confirmed in writing and kept on the employee's HR file, but will be disregarded after twelve months, subject to satisfactory conduct and performance.

The employee will be informed, in writing, of the standards expected and action to be taken by the employee and employer to achieve and monitor the improvement required.  Failure to achieve the standard required will result in further disciplinary action.

4.2.3 Stage 3 – Final Written Warning

A FINAL WRITTEN WARNING may be imposed in the following circumstances:

1. where an employee has received a previous written warning for a similar offence, which is still current;
2. where misconduct is considered not to be serious enough to justify dismissal, but serious enough to warrant only one written warning which will be both the first and final.

The warning will be confirmed in writing and kept on the employee’s HR file, but will be disregarded after twenty-four months, subject to satisfactory conduct and performance. 

The employee will be informed, in writing, of the standards expected and action to be taken by the employee and employer to achieve and monitor the improvement required. Failure to achieve the standard required will normally result in dismissal.

4.2.4 Time limits

The above disciplinary penalties specify time limits where appropriate.  There may exceptionally be occasions where the periods specified are not suitable.

When an employee's conduct is satisfactory throughout the period the warning is in force, only to lapse very soon after, a pattern may emerge that there is evidence of abuse of the process. In such cases, the employee's disciplinary record should be borne in mind when deciding if a longer time limit should be applied to further warnings.

Exceptionally, there may be circumstances where the misconduct is so serious, verging on gross misconduct, that it cannot realistically be disregarded for future disciplinary purposes. In such circumstances, it should be made very clear that the final written warning will never be removed and that any recurrence will lead to dismissal.

4.2.5 Stage 4 - Dismissal with Notice

This may occur when:

1. conduct or performance is still unsatisfactory, following warnings and the standard required has not been achieved.
2. the nature of the offence, although not described as gross misconduct, affects the relationship between the employee and their manager, or colleagues, to such an extent that they cannot reasonably remain in the employment of the University in any capacity. This assumes that consideration has been given to possible alternative employment.

The employee will be given written reasons for dismissal and the date on which employment terminates. The employee may be given pay in lieu of notice, at the discretion of the University.

4.3 Summary Dismissal (i.e. Dismissal without notice)

4.3.1  Gross misconduct is misconduct serious enough to destroy the employment contract/relationship between the University and the employee and make any further working relationship and trust impossible. Examples of gross misconduct include (noting that this is not an exhaustive list):

• Theft or fraud
• Physical violence
• Bullying
• Deliberate and serious damage to property
• Serious misuse of the University’s resources
• Serious misuse of social media bringing the University into disrepute
• Deliberately accessing internet sites containing pornographic, offensive or obscene material
• Unlawful discrimination or harassment
• Bringing the University into serious disrepute
• Serious incapability at work due to misuse of alcohol or drugs
• Causing loss, damage or injury through serious negligence
• Serious breach of health & safety policy and procedure
• Serious breach of trust and confidence
• Sexual harassment and/or sexual misconduct
• Persistent unreasonable behaviour and conduct.

(NB: this list is not exhaustive). Managers should seek advice from HR if they believe an act of gross misconduct may have taken place but it is not listed here. Nothing in the list shall be taken as preventing a member of staff from exercising their right to lawful free speech.

4.3.2  Gross misconduct will normally result in summary dismissal, i.e. without notice or pay in lieu of notice, following an investigation and Disciplinary Hearing.

4.4 Downgrading/transfer to alternative employment

In appropriate circumstances, as an alternative to dismissal, the manager hearing the disciplinary case may determine that the employee should be downgraded (without salary protection) and/or transferred to another suitable post within the University. When this is considered as an alternative to dismissal the manager should discuss the application of such a move with the Director of Human Resources and Organisational Development.

4.5 Notifying the decision

The employee should, whenever possible, be informed verbally of the decision at the conclusion of the disciplinary hearing, including details of any disciplinary action to be taken. This should be done as quickly as possible.

The outcome of any formal disciplinary hearing will be confirmed in writing to the employee within seven days of the Disciplinary Hearing, together with notification of their right of Appeal.

It may be appropriate in some circumstances, e.g. in a case of sexual misconduct, for the victim to be advised of the outcome of the investigation including whether any formal action has been taken. This will ensure that the University’s actions in dealing with such situations are as transparent as possible.

5. Criminal Charges

5.1  If an employee is charged with, or convicted of a criminal offence, this is not normally a reason in itself for disciplinary action.  Consideration will be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with the University, work colleagues, students and external partners (as appropriate).

6. Precautionary suspension (with pay)

6.1  Precautionary suspension is not disciplinary action and should only be used where necessary and where alternative options, e.g. exclusion from specific duties/locations/other staff etc, is not feasible. It may be appropriate in the following circumstances:

• Apparent serious misconduct requires investigation and the suspension is required for the period of investigation if it is felt that the employee’s continued presence at work would interfere with the investigation process.
• The action complained of, if substantiated, would constitute gross misconduct and it is considered inappropriate for the employee to remain on the University’s premises pending a Disciplinary Hearing.

6.2  The employee should be suspended on full pay, by a senior manager, for the shortest period possible. The employee should be told the reason for suspension. Written confirmation of suspension must be sent to the employee, with a copy to the Director of Human Resources and Organisational Development, within 48 hours of the start of the suspension.

6.3  Suspension should not preclude an employee from contact with their Trade Union representative or nominated colleague.

7. Monitoring and Review

7.1  This procedure will be monitored and reviewed every two years by the Director of Human Resources and Organisational Development and any necessary changes will be negotiated with the Joint Negotiation & Consultation Committee.