DOCUMENT RESUME ED 357 671 HE 026 417 AUTHOR Kedney, R. J.; Saunders, R. TITLE Reviewing the College Disciplinary Procedure. Mendip Papers. INSTITUTION Staff Coll., Bristol (England). REPORT NO MP-042 PUB DATE 92 NOTE 34p. AVAILABLE FROM Staff College, Coombe Lodge, Blagdon, Bristol BS18 6RG, England. PUB TYPE Reports General (140) EDRS PRICE MF01/PCO2 Plus Postage. DESCRIPTORS Behavior Problems; Colleges; *Discipline; Discipline Problems; *Dge Process; *Employer Employee Relationship; *Faculty College Relationship; Foreign Countries; Higher Education; *Labor Relations; Methods; Teacher Behavior; *Teacher Discipline; Teacher Dismissal; Universities IDENTIFIERS *Great Britain ABSTRACT This paper provides practical advice on reviewing and designing disciplinary procedures and is set in the context of incorporation of further education and sixth form colleges in England. Reasons are provided for having disciplinary rules, based on the Advisory Conciliation and Arbitration Service's (ACAS) Code of Practice. Relevant English employment legislation is discussed as are the methods of determining whether an employer has acted reasonably in dismissing an employee and the key principles of disciplinary procedure. Nine elements concerning ti:e structure and content of college disciplinary procedure are addressed including discussions on implementation issues, assignment of responsibilities involving discipline, various disciplinary offenses and sanctions, time limits, representation during disciplinary actions, the use of disciplinary panels, and considerations when handling special disciplinary cases. Appendices include a sample of the ACAS' disciplinary procedure; a sample of a college-based disciplinary procedure; an example of a disciplinary code from a major industrial company; and a procedure for disciplining, suspending, and dismissing college staff. (GLR) *********************************************************************** Reproductions supplied by EDRS are the best that can be made from the original document. *********************************************************************** Fr cu ca4 Reviewing the college The disciplinary procedure Staff College R J Kedney and R Saunders MP 042-1 NZ U.S. DEPARTMENT OF EDUCATION "PERMISSION TO REPRODUCE THIS Office of Educational Research and improvement BY MATERIAL HAS BEEN GRANTED ("Nt EDUCATIONAL RESOURCES INFORMATION CENTER (ERIC) Further Education CL.this document has been reproduced as received from the person or organization originating it Staff College Minor changes have been made to improve reproduction Quality Points of view or opinions stated in this docu ment do not necessarily reprSent TO THE EDUCATIONAL RESOURCES othcrat OERI position or policy INFORMATION CENTER (ERIC)." tisc,,attva, , ci) -.( a) ct Reviewing the college alo disciplinary procedure :14 14 hici) R J Kedney and R Saunders The Staff College MP 042 j The views expressed in this Mendip Paper are those of the contributor(s). They should not be taken to represent the policy of The Staff College. About the authors Robert Kedney, Associate Tutor, The Staff College Has been the principal of one of the larger colleges of further and higher education, a senior officer and adviser to a number of local authorities and a head of department in a college and a secondary school. He has served on a number of national bodies, including the Joint Study of Efficiency and the Burnham/ National Joint Council which deals with salaries and conditions of service. He currently teaches at The Staff College and Sheffield City Polytechnic, is Education Adviser to Price Waterhouse, undertakes consultancy work and writes on aspects of post-compulsory education. Bob Saunders, Staff Tutor, The Staff College From university, Bob went into industry as a sales office management trainee. He then spent five years in work study and O&M, culminating as head of work study in a factory producing photographic film. Bob then spent two years in personnel as group training manager before moving to training engineering employees which he spent 15 years doing. After this he moved to become firstly a deputy principal and then a principal lecturer in management. He joined The Staff College in 1988. Series edited and designed at The Staff College by Pippa Toogood and Susan Leather, Publications Department, and produced by the Reprographics Department. Published by The Staff College, Coombe Lodge, Blagdon, Bristol BS18 6RG Telephone (0761) 462503 Fax 0761 463104 or 463140 (Publications Department) © The Staff College 1992 All rights are reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, electrical, chemical, optical, photocopying, recording or otherwise, without the prior permission of the copyright owner. Reviewing the college r. disciplinary procedure he..40 R J Kedney and R Saunders Introduction Contents Introduction All colleges have a disciplinary procedure: indeed 1 many have more than one. They have their origins Disciplinary rules: 3 in discussions between the local authority and the setting standards recognised trade unions, but some may have been overhauled and significantly revised following the Relevant employment 4 Education Reform Act 1988 (ERA). How far legislation these procedures meet the challenge of clarity as to their purpose, in addition to providing procedural Determining a fair 4 guidance to managers who may be called to act dismissal upon them for the first time, is an open question. As colleges prepare to take up yet more responsibility Key principles 5 on Vesting Day, it will be necessary to turn again to personnel matters and bring the college disciplinary Reviewing the college 5 procedure into line with incorporation. procedure: 1. Structure and content At one level, a clear disciplinary procedure is 2. A check list of key needed to give technical support and advice to issues college managers when having to face cases of alleged misconduct. In so far as it helps to achieve Collective agreements 11 fair and due process through what can be a difficult experience, it is of considerable importance. At Sources of advice 12 another level, however, it is also part of the process of setting and exemplifying college values and Communications and 12 developing best practice in terms of the relationships training which underpin the culture of the college. Conclusion 12 This Mendip Paper is intended to provide practical advice on reviewing a disciplinary procedure and is Key readings and 12 set in the context of the incorporation of further references education and sixth form colleges. The authors draw on the work of conferences run by The Staff Appendices 1-6 13 College - including the advice and comment of experienced managers - as well as their own experience in colleges, local authorities and the private sector. The authors also draw on the literature Mendip Papers 1 Code of professional conduct identifies the wider of the field. The Paper uses a range of perspectives processes as: which inter-relate and overlap in providing practical advice and check lists of key issues for the design of that part of management concerned with college procedures. people at work and with their Colleges are highly flexible and complex relationships within that organisation. Its aim is to bring together into an organisations which have at their centre the values, effective organisation the men and commitments and interactions of staff. Their women who make up that enterprise, purposes are increasingly finding overt form through policy or mission statements, which in part find enabling them to make their contribution practical expression through formal rules and to its success. procedures. But it can also be argued that standards Section 148 of the Education Reform Act clearly are exemplified by the customs and practices of the placed the responsibility for staff conduct and college's everyday operations, and it is through the discipline in colleges with the governing body. actions of staff that practical expression of value Furthermore, any action that lay within the powers systems can be most strongly identified. Where of the local authority rather than the college was to clear policies are expressed and standards set, they be implemented at the request of the governors. The need to be supported by consistent and reasonable model articles accompanying the Department of management. Pious hopes and written procedures may offer valuable starting points and can be Education and Science (DES) Circular 9/88 stated catalysts for change, but of themselves will not that the principal: deliver policies. Yet without them as starting points shall be responsible for the executive there is little prospect of the professional standards management of the college, including needed in further education (PE) today. its financial management, internal organisation and discipline. In the past, colleges have operated using procedural frameworks presented by the local authority. These The draft regulations prepared for 1992 reflect the identified employees by type and by their recognised powers invested in the principal/director as the trade unions. Until ERA, and now the Further and chief executive officer of the polytechnics and Higher Education Act 1992, colleges had not been The governors, as non- colleges of education. masters of their own destiny or been held responsible executive directors given overall powers, make for labour relations. Indeed, the segregation was only specific decisions relating to the most senior welcomed by some managers as they could more posts: it is for management to manage. easily relate to notions of academic leadership than to hiring and firing roles. With delegation of so The foundations lie in two key documents. The many of the employer's responsibilities to the college first, the Employment Protection (Consolidation) in 1988, there was set in train both an opportunity Act 1978, requires that a written statement of terms and a challenge in setting new procedures. The and conditions shall be given to all employees. This removal of the residual role of the local authority statement should describe any disciplinary rules under incorporation is likely to be accompanied by which apply and the person to be consulted if an moves towards decentralisation in industrial employee is dissatisfied with any disciplinary action. relations, a tendency that characterises much of the The second, the Advisory Conciliation and public sector at present. The outcome for colleges Arbitration Service's (ACAS) Code of practice 1: may be a new culture built on expectations of disciplinary practice and procedures in standards of professionali sm, which will both guide employment which came into force in June 1977 and be influenced by the processes and outcomes of gives practical guidance. It is quoted in full as decisions which have to be taken in drawing up Appendix 1 in Discipline at work: the ACAS college personnel procedures. advisory handbook (1987); an invaluable booklet for all managers. Before moving on to specific issues that flow from the need to regulate discipline, it is well worth Both ACAS's Code of practice and Discipline at setting the task of writing a college procedure in work make it plain that good employers are expected context. The Institute of Personnel Management's 2 Mendip Papers t) to establish clear rules and to adopt and operate fair Given the diversity of types of posts and duties in a disciplinary procedures. The purpose of these college it would not be possible, even if it were to be procedures is to ensure reasonable orderliness in considered desirable, to catalogue all possible instances of misconduct. The Encyclopedia of employee conduct and fair play between employer and employee in dealing with any problems which employment law and practice (Walton, 1986) and may arise. While a connotation of punishment is the Local Authority Conditions of Service Advisory Board's LACSAB handbook (1987) both give inevitably present, the primary aim in invoking the disciplinary procedure should be to seek examples of disciplinary rules which help to guide conduct and illustrate breaches which may be improvement in the employee's behaviour. Only deemed misconduct and gross misconduct. It is when this fails should the final sanction of dismissal be considered. important that the college procedure should state that any list of illustrations it uses is not complete and that the employer may take account of Disciplinary rules: setting standards expectations arising from the employee's seniority, professional role and experience in considering individual charges. The ACAS code of practice suggests seven reasons for having di scipinary rules; these also provide key In preparing any rules which relate to discipline benchmarks when designing the procedure needed there is firstly a need to question the necessity for to deal with alleged breaches of acceptable conduct: each regulation. Some are required in law, while others are the choice of the employer and may be (i) to help ensure fairness and order in the kept to basic expectations. These rules - like the treatment of individuals conducting formal disciplinary procedure itself - are both the industrial relations; product of, and part of the contribution to, the culture of the college. They should set the tone and (ii) to assist an organisation to operate give a framework of guidance which goes beyond effectively; the rigours of administration. Preparation of the rules is, therefore, worth considerable time and (iii) to set standards of conduct at work and effort. It may be helpful on completing a draft not help to ensure that these are adhered to; only to consider technical clarity and accuracy but also to seek advice as to how far the document meets (iv) to provide a fair method of dealing with the criteria outlined above. alleged failures to observe rules; Everyday issues such as honesty, good timekeeping (v) to ensure that employees know what and avoiding the use of foul language may seem standards are expected of them; self-evident in an educational institution. They sit alongside the expectation that staff will conform to (vi) to meet a legal requirement; and and support college policies on such matters as equal opportunities or health and safety. Well- (vii) because they become important in disputes drafted disciplinary rules on these and other matters about fairness or otherwise of decisions to can help to give guidance in advance to all staff, and dismiss. assistance and support to juniorand middle managers in maintaining standards. Rules are also needed to regulate the safe performance of work as well as to reduce any Before addressing directly specific issues of design, danger of mishandling critical staff relationships. the following sections review aspects of relevant legislation and what has to be the basic test of its The absence of satisfactory rules may result in application - the possible dismissal of a member of undesirable precedents, bitterness and demotivation, staff of a college, including the potential need to with accusations of favouritism or victimisation demonstrate reasonableness to an industrial tribunal. when action eventually has to be taken. On the It is essential that disciplinary action always takes other hand, the development and application of account of the legal framework in which it is set, rules can not only help to give guidance and direction and of the factors which tribunals are likely to but also confirm basic standards of behaviour and consider in deciding unfair dismissal cases. identify key values. Mendip Papers 3 7 Whilst they are not statutory documents. they are Relevant employment legislation nevertheless regarded- as giving clear and sound advice. As the Employment Protection Act 1975 The legal requirement for a disciplinary procedure stated, the Code is admissible in evidence before a is implied in the Employment Protection tribunal and any provision of the Code that is (Consolidation) Act 1978 where it requires an regarded as relevant by the tribunal shall be taken employer to give an employee a written statement into account. Further, Discipline at work gives of terms and conditions within 13 weeks of clear guidance to any manager and should be set commencement of employment. Included in this alongside the college procedure as part of its basic statement must be details of the disciplinary and documentation. grievance procedures or details of where they may be found. Perhaps equally significant is the use of common sense, as the experience of trying to handle Determining a fair dismissal a case of misconduct which can no longer be condoned or ignored without a clear and known The technical issues of dismissal and the operation procedure is not something any manager would of industrial tribunals may need to be addressed wish to repeat. from time to time but lie outside the specific focus of this Paper. The decision to dismiss on grounds of Under the provisions of ERA, the governing body gross misconduct must, however, underpin any became responsible for 'the regulation of conduct review of the college's procedure. Furthermore, in relation to the staff of an institution'. The Further and Higher Education Act 1992 has there are important ground rules which have general applicability to the design and use of a disciplinary completed the process of delegation by removing procedure. Forexample, industrial tribunal findings the residual powers of the local education authority have established a number of benchinarks which (LEA) so that the chief education officer is no test whether the employer has acted reasonably. longer the automatic choice for professional advice These include: and the LEA will no longer act on instruction in processing the dismissal of a member of the college's 1. having a known procedure; staff. 2. following it at every stage; The sequence of hearing and appeal can be lengthy If, following a hearing of an and complicated. 3. carrying out adequate investigation at each allegation of gross misconduct, the college decides stage; on dismissal, an individual may appeal as provided If the original decision is for by the procedure. 4. assembling and giving the findings in good upheld, the individual may then refer the matter to time; an industrial tribunal. If this further, external right of appeal falls within the scope of the tribunal, it 5. giving clear notice of any formal hearing will hear the submissions of both parties and will and its possible consequences; and make a legally binding decision. In doing so it will hear each individual case on its merits: whilst 6. allowing the employee to state his/her case previous decisions may be used as guidance, they before any decision is reached. do not form precedent. Due to continuous change as a result of hearings in tribunals, the appeal A second helpful set of guidelines arising from the tribunal, the Court of Appeal, the House of Lords deliberations of the industrial tribunals and the and on occasions the European Court of Justice, any appeals machinery relate to the point of decision. doubts relating to individual cases should be referred They are most clearly tested when dismissal is to be to personnel specialists for advice and guidance. considered but again can apply at the point of decision in any disciplinary hearing. They give four In reviewing the college procedure, reference should be made to the ACAS Code of practice 1: tests of reasonableness in the following terms. Disciplinary practice and procedures in 1. Does the employer reasonably believe the employment and Discipline at work: the ACAS advisory handbook (which includes the Code). employee committed the misconduct? 4 Mendip Papers Is that belief based on reasonable grounds? 2. it should ensure that other than for cases of gross misconduct individuals are not 3. Are those reasonable grounds the result of dismissed for the first offence; as much investigation as is feasible in the circumstances? it should ensure that disciplinary action is not taken until the case has been Is dismissal, in the circumstances, a investigated; 4. reasonable penalty to impose? it should ensure that individuals are given Dismissal relates to a charge or charges of gross an explanation for any penalty imposed; misconduct, seen as misconduct serious enough to it should provide a right of appeal and destroy the employment contract and to make any further working relationship and trust impossible. specify the procedure to be followed. Tribunals are interested in the judgement of the employer, not the guilt of the employed. The Reviewing the college procedure dismissal decision has to be based on a reasonable belief, which can be supported and be seen to be fair, but not necessarily proven beyond all reasonable 1. Structure and content doubt. Indeed, dismissal decisions have been upheld in tribunals where innocence of criminal activity In his book Industrial relations (1987), G D Green has subsequently been established. Discipline details a series of elements that can provide a concerns the relationship between employer and technical framework for reviewing any procedure. employee: it concerns expectations and standards In all it covers 13 elements but only nine of them are and fair processes for handling any issues that arise. applicable here. (1) Preamble/purpose/status - should cover Key principles who are the parties to the document, the status of their discussions and the date of The Code of Practice includ,d in Discipline at the procedure. An interim procedure may work: the ACAS advisory handbook specifies a sometimes be adopted while discussion number of essential features of a disciplinary with the trade unions continues in order to procedure: determine the final wording. that the procedure should be in writing; (2) Groups/units covered - the procedure will relate to the college but it will be necessary it should specify to whom it applies; to determine whether one or more such documents will be adopted. It has been it should provide for matters to be dealt commonplace for local authorities to have with speedily; three or more procedures relating to the different major groups of employees and it should indicate the disciplinary actions their trade unions. A decision to regard all which may be taken; staff equally through a single status policy means that a policy decision will need to be it should identify the levels of management made and should be stated. Furthermore, which have the authority to take various should any variations be made to meet the forms of action; particular circumstances of groups of staff or individual sites they should also be stated. it should provide for individuals to be informed of the complaints made against (3) Coverage - the procedure should state them and be given an opportunity to state what it covers and any related provisions - their case; e.g. capability - need then to be dealt with in parallel statements. it should provide for individuals to have the right to be accompanied; Mendip Papers (8) Records- including minutes or notes of the (4) Stages - discipline is generally regarded as hearings - should clearly be confidential a process with stages which may range but need to be kept in case of appeal or an from the informal warning, through the industrial tribunal hearing in the case of formal warning and the final warning to dismissal. Notification of decisions should consideration of dismissal on grounds of be confirmed in writing and should refer to gross misconduct. The entry point into the the right of appeal and the timescale and procedure will have to be determined with means of requesting such a hearing. regard to the seriousness of the case and not in terms of any other sequence. It is thus (9) Alteration or termination - of the possible for the first charge to be one of procedure may occur from time to time gross misconduct should the issue warrant it, and this should be indicated. The (particularly the former) as experience is gained. It is useful to identify in advance procedure should set down who will deal how such matters should be d::alt with in with the investigation and lay the charge, of both consultation and terms and who will hear the statements and any communication to staff. appeal at each stage. The principle ofnatural justice requires clear separation and independence of roles. In general it is a Lists such as those given above can be daunting and tend to cause attention to focus on the technical sound principle for issues to be dealt with aspects of designing a procedure. Several stages of as close to the poi nt of origi n as is reasonable discussion and drafting can be expected but may starting with the next-in-line marrger. prove invaluable. To support such review and to provide illustrations this Paper includes several (5) Time limits - failure to act promptly on a disciplinary matter once it is known to Appendices which give a number of examples of disciplinary procedures selected because of management may be argued as condoning differences of style. All have been designed and an action. Procedures should not be overlong used in the working environment. None can cope and clear time limits should be stated for with every conceivable eventuality and exceptions each stage, including a set period allowed will need to be met by clear adherence to underlying for appeal, though by agreement set limits principles. may be varied in individual circumstances to meet the interests of justice and Testing of the drafting is worth consideration by reasonableness. Time limits in the context giving the draft procedure to a third party who has of a record of the disciplinary decision are taken no part in its design and has no access to its considered later in this Paper. authors. They should be asked to see if both its technical aspects and the desired spirit and intentions (6) Appeals - the procedure should make clear come through. One way of doing this, if it can be how appeals against disciplinary action at arranged, is through either role play as an internal each level are to be handled, and by whom. training exercise or by its use as a case study run It is common for appeals to be to the next with middle managers of a sister college. level in the hierarchy. The appeal can take the form of consideration of specific issues only or be a re-hearing before a different 2. A check list of key issues body. (7) Sanctions - a range of options can be The catalogue of issues addressed here cannot be allowed but some may need a renegotiation comprehensive, nor can individual responses fit all of existing contracts of employment. circumstances. Rather, an attempt is made to Examples are likely to be the adoption of a highlight what are likely to be relevant questions financial fine other than the withholding of and to explore possible options. The position an increment, demotion or disciplinary determined by any college must be of its own choice transfer to another post, including a lower and should reflect what it is seeking to achieve. graded one. 6 Mendip Papers