Chapter 3 - Discipline policy pre 1 August 2007

This Chapter explains the policy and procedures for ensuring that standards of conduct for Crown Prosecution Service staff are maintained. All staff are required to conduct themselves in a manner appropriate for service in the Crown Prosecution Service and which is acceptable to other members of staff and to the general public, and to fulfil the obligations of their terms and conditions of employment. The Code of Conduct and Staff Rules and guidance on participation in Political Activities are set out in Volume 2 Chapters 1 and 2.

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Principles

Disciplinary procedures are designed to ensure that staff keep to the standards of behaviour required and to help managers deal fairly with those who do not. They are an aid to good management and provide a framework for encouraging and maintaining appropriate standards of behaviour. They should not be seen primarily as a means of punishing staff although, depending on the circumstances, penalties may be imposed on staff who break the rules.
Maintaining appropriate standards of conduct amongst their staff is the responsibility of line managers. If, in doing so, they decide to take disciplinary action as set out in this chapter, they must:

apply the procedures equitably irrespective of the level, sex, race, marital status, sexual orientation, colour, religion, ethnic or national origin, age or disability of the member of staff concerned;
make every reasonable attempt in the circumstances to establish the facts of the alleged misconduct before any disciplinary action is taken;
consider whether any previous disciplinary matter is relevant (see paragraphs 60 and 61);
take full account of the background including any relevant personal, social or domestic circumstances. If domestic problems are disclosed, it is normally appropriate to advise the member of staff to contact their Counsellor and if ill health is a significant factor, advice should be sought from the Department's occupational health adviser;
act promptly at all stages.

Any member of staff subject to formal disciplinary action has the right:

to be advised of the nature of the complaint against them without undue delay;
to be advised as soon as the decision has been taken not to proceed with discipline procedures;
for the case to be dealt with, as far as circumstances permit, in confidence;
in normal circumstances, to be given a copy of any material supporting a disciplinary charge (including any produced as a result of a formal investigation);
to be made aware of the disciplinary procedures that will be followed and the disciplinary penalties which may be imposed;
to be given the opportunity to state their case and comment on the evidence before decisions are reached;
to receive advice and representation throughout from a trade union representative or a colleague of their choice;
to receive a full explanation for any penalty imposed;
not to be dismissed for a first act of misconduct unless it constitutes gross misconduct;
to appeal against the outcome and any penalty imposed.

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Which procedure - discipline or inefficiency?

There may be occasions when it is unclear whether the disciplinary or the inefficiency procedures should be applied. If there appears to have been a breach of the Code of Conduct or Staff Rules, then disciplinary procedures will usually apply. Poor performance resulting from a deliberate lack of attention, or a breach of the rules, is also usually a disciplinary matter. However, poor performance resulting from incompetence e.g. lack of ability, will generally fall to be dealt with under the inefficiency procedures. The advice of the Area Business Manager (ABM)/Personnel 2 for HQ staff should be sought in cases of doubt.

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Types and examples of misconduct

The way in which managers should deal with misconduct will depend on its gravity and whether it is an isolated incident or repeated misconduct. There are three categories of misconduct:

gross misconduct - in general terms, behaviour that so damages the relationship between the employee and the Department that it would normally be incompatible with continued employment;
serious misconduct - in general terms, behaviour that damages the relationship between the employee and the Department;
minor misconduct - behaviour that is unacceptable to the Department but which is not serious enough to fall into the other categories.

In determining into which category the misconduct falls, managers will need to consider not just the type of misconduct, but the seriousness of its effect on the employer/employee and other relationships and, if proven, the type of penalty that it is likely to attract. Different considerations will apply in different circumstances. Furthermore, due account must always be taken of the context in which the alleged misconduct occurred.

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Types of misconduct

The following lists are neither exclusive nor exhaustive but merely give examples of the three types of misconduct. An example appearing in one list does not automatically exclude it from another.

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Gross misconduct

Examples of gross misconduct might include:

repeated serious misconduct;
conviction for a serious criminal offence whether on official duty or not;
assaulting a member of the public or a colleague;
bribery, theft or fraud;
falsification of expenses claims;
serious forms of sexual or racial harassment or discrimination of colleagues or the public;
deliberate damage to the Department's equipment, computer systems or buildings;
serious negligence which causes significant loss, damage or injury;
unauthorised use or disclosure of official information acquired in the course of duty;
having a complaint of professional negligence or misconduct upheld by the relevant professional body.

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Serious misconduct

Examples of serious misconduct include:

repeated minor misconduct;
conduct liable to bring the Department into disrepute; for example conviction for a minor criminal offence;
significant loss of public money or property for which the member of staff is responsible;
unauthorised absence from duty for which no acceptable reason is given (pay should always be stopped in these circumstances but this is a normal procedure and is not a disciplinary penalty);
acts of sexual or racial harassment or discrimination including such acts done on the grounds of sexual orientation or religion;
being under the influence of alcohol or drugs while on official duty.

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Minor misconduct

Examples of minor misconduct include:

poor timekeeping;
abuse of the flexible working hour's scheme;
an isolated and non-serious incident of failure to follow the legitimate instructions of a line manager or senior official.

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Procedures

Disciplinary powers

Disciplinary powers on behalf of the Director, as permanent Head of the Department, are delegated to senior managers. Where it is necessary to appoint an investigating officer to conduct enquiries, the person appointed will normally be at least one pay band higher than the person who is the subject of the disciplinary action. The disciplinary authority that is called upon to decide the outcome will be at least two pay bands above that of the person who is the subject of the disciplinary action. As a minimum, the investigating officer and disciplinary authority will not be below Level B Pay Band B2; the appellate authority should be one level or pay band above the disciplinary authority and should not have had any prior involvement with the particular disciplinary action. The written notification of the outcome of any disciplinary investigation will contain details of the right of appeal, including the name of the individual to whom any appeal should be addressed. Where disciplinary action is taken against a member of staff at Level D, the disciplinary authority will be a member of the SCS or CCP cadre who is not part of the normal line management chain for the member of staff. Disciplinary action taken against staff in Level E will be investigated and decided by members of the SCS or CCP cadre who are not part of the normal line management chain. Disciplinary action against a member of the SCS or CCP cadre will be investigated and decided by officers appointed by the Human Resources Director or Chief Executive.
ABM/Personnel 2 for HQ staff will maintain an anonymised discipline register of all cases of serious and gross misconduct. The register will contain the following information:

level of member of staff;
nature of any disciplinary breach;
the action taken and the reasons for it;
the date action was taken;
whether an appeal was lodged;
any subsequent developments;
where disciplinary action lapses, the date on which it lapses.

These records will be confidential to Service Centre and HQ Personnel.

Personnel 2 also maintain a precedent register for cases of Serious and Gross Misconduct to guide Areas in determining charges and disciplinary penalties where appropriate. In order to inform Personnel 2 of such disciplinary cases, a Disciplinary Record Sheet should be completed at key stages during the disciplinary process. The precedent register will not identify individuals but is intended to be a means of maintaining a consistent approach. The Disciplinary Record Sheet is at Appendix 1.

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Preliminary steps

Line Managers are responsible for starting the appropriate action and following correctly all stages of the disciplinary procedures in which they are involved.

Flowcharts to help explain the procedures are at Appendices 2 and 3.

When conduct or behaviour considered unsatisfactory occurs, line managers must assess whether the matter can be adequately dealt with through counselling. If this is not the case and formal action is appropriate, line managers should assess whether the misconduct is minor - to be dealt with as in paragraph 21 onwards or more serious - to be dealt with as in paragraph 27 onwards.

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Counselling

Counselling involves discussing the matter, explaining what is wrong and advising staff on what is expected of them. By taking this action promptly, managers may prevent a recurrence of the unsatisfactory behaviour and obviate the need for formal disciplinary action. Sometimes domestic, personal or health problems can be at the root of unacceptable behaviour, and staff should be encouraged to talk to their manager, doctor, staff counsellor or trade union representative, if appropriate.
A brief written record of counselling interviews should be made by the manager in case further disciplinary action becomes necessary. It should state:

the facts leading to the interview;
a summary of the interview, agreed where possible;
specific details of any improvement required.

This record should be retained by the line manager and destroyed after 12 months if no further misconduct problems arise. The member of staff should be informed in writing when the record has been destroyed.

When interviewing the member of staff managers may need to explain that:

a repetition of the unsatisfactory behaviour; or
a failure to improve to a specified standard within a notified timescale will lead to consideration of formal disciplinary action.

For some forms of misconduct, counselling may be sufficient. In other instances, for example, redeployment may be a mutually agreeable solution. Where an informal approach fails to resolve a problem, or is inappropriate, managers should follow the formal disciplinary procedures. They should let the member of staff know that disciplinary action is being considered.

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Cooling off periods

Sometimes incidents leading to counselling or disciplinary action involve uncontrolled or ill-judged behaviour, and a cooling off period may be needed before the matter can be dealt with sensibly. When, for example, a member of staff loses their temper in the office, the line manager may, if necessary, send that person home for the remainder of the day to cool off. Sending a person home in these circumstances is not suspension from work and should not be referred to as such. (Suspension from duty is dealt with in paragraphs 29 - 34).

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How to deal with minor misconduct

In the case of minor misconduct, where counselling has been considered and deemed inappropriate, or has failed, the line manager will normally deal with the matter in the following way:

state and record the reasons why counselling would be inappropriate;
establish the facts promptly, taking into account the comments of any available witnesses whilst their memory is still fresh;
give notice of an intended disciplinary interview, stating the nature of the complaint, accompanied by any relevant written material, and reminding the member of staff of their right to be represented by a trade union representative or other colleague (Appendix 4);
interview the member of staff (in the presence of a trades union representative or colleague, if requested), giving them an opportunity to state their case and to help determine what happened;
make as full a note of the interview as the circumstances require.

Where a line manager's enquiries into an apparently minor form of misconduct brings to light other misconduct, including misconduct which is more serious, the matter must be dealt with in accordance with the procedures outlined in paragraph 27 onwards.
If the line manager is satisfied from their enquiries that minor misconduct has been committed by the member of staff they will need to consider the appropriate action to take. Where the member of staff has not received a formal warning (oral or written) for minor misconduct in the previous 12 months, an oral warning will normally be appropriate. The following action should be taken:

a brief note should be made of the fact that an oral warning has been given and the circumstances (Appendix 5);
a copy should be given to the member of staff;
the note should be forwarded to ABM/Personnel 2 to be placed on the personal file. It will be removed after 12 months if no further disciplinary breach has occurred. The member of staff will be informed in writing when the notes have been removed.

If a formal warning (oral or written) has been given in the previous 12 months the line manager should issue a further warning, which will usually be in writing (Appendix 6). Written warnings will consist of the following:

(if appropriate) details of any previous warnings given;
a statement of the minor misconduct;
(if appropriate) details of the specific improvement required e.g. improvements in late attendance;
the period during which any improvement must be achieved;
a warning that misconduct is a disciplinary matter which, if repeated, will result in further formal action and might attract a formal disciplinary penalty.

The member of staff concerned should be asked to sign a copy of the warning to acknowledge receipt. A copy will be forwarded to the ABM/Personnel 2 to be placed on the personal file and, if no further incidents occur, removed after 12 months. The member of staff will be informed in writing when the warning has been removed.

Any oral or written warning issued must include notification of the right to appeal against the warning (see paragraph 63).
If there is no improvement, or further minor misconduct takes place (within a specified timescale), the line manager should interview the member of staff in the presence of a trade union representative or colleague (if requested) to give them an opportunity to state their case. If appropriate a further warning should be given. This warning will be confirmed in writing and a copy retained on the personal file held by the ABM/Personnel 2. If it is decided that the accumulation of minor misconduct by the individual should now be regarded as serious misconduct the procedures in paragraph 27 onwards should be followed.

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How to deal with serious and gross misconduct

In the case of what appears to be serious or gross misconduct the line manager will usually take the following action:

make preliminary management enquiries, if necessary (for example where a fraud may have been committed), to establish whether misconduct has taken place and whether a formal investigation should be instigated. These enquiries would not normally involve interviewing any individuals suspected of involvement;
where these enquiries or other information gives rise to suspicions of serious or gross misconduct, inform the ABM/Personnel 2. Personnel 2 should be consulted, in any case, if it is proposed to involve the police in the investigation of an offence or as a consequence of information disclosed. The Press Office and CCP/HOD should also be informed;
all cases which appear to constitute gross misconduct must be referred to Personnel 2, who retain the authority for dealing with such cases.

As soon as possible after the ABM/Personnel 2 has decided to initiate formal disciplinary action they will:

instigate a formal investigation (see paragraph 35 onwards).This may not be necessary in circumstances where the facts are already known, for example, where the case involves criminal proceedings or where an investigation has already taken place in accordance with the Equal Opportunities Complaints Procedure;
if sufficient evidence of misconduct is available, put a disciplinary charge to the member of staff (see paragraph 40 onwards).

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Action pending completion of an enquiry

Once a decision has been made to initiate formal disciplinary action, the ABM/Personnel 2 will consider whether it would be appropriate to arrange a transfer to other duties or suspend the member of staff from work whilst an investigation is taking place or until the outcome is decided. The decision to transfer or suspend may also be made at any time during the disciplinary process if considered appropriate. The decision to suspend staff rests with the ABM/Personnel 2 for HQ staff and should not be taken at a level below that of the disciplinary authority: the appropriate level of disciplinary authority is described in paragraph 12.
Suspension in these circumstances, as distinct from suspension as a disciplinary penalty, does not imply that any decision has been taken about the alleged misconduct. The key consideration in deciding whether suspension is appropriate is usually whether the continued presence of the member of staff concerned would:

be contrary to the public or departmental interest;
prejudice any investigation, e.g. where there is a possibility of someone destroying evidence;
have an adverse effect on the work of the office, e.g. where harassment of colleagues is alleged and may intensify once an investigation is started.

The alternative of a transfer to other duties should always be considered before suspension.

As soon as possible after a decision has been made the individual will be informed in writing of the reason for the transfer or suspension, its likely duration and when it will next be reviewed (an initial review will normally take place after 4 weeks with monthly reviews thereafter) (Appendix 7 & Appendix 8). Where staff are suspended pending a court appearance this will be specified. Staff who are suspended remain employees of the Department and must be available to return to work or to make themselves available for interview when requested.
Other than in exceptional circumstances, suspension from duty will be on the full rate of pay applicable at the time. Suspension on reduced pay or without pay would normally only be appropriate where the member of staff is not available for work, e.g. on remand or out of the country. The level of pay during a period of suspension should be reviewed regularly. Among the factors to be taken into account are whether the member of staff has dependants who might suffer hardship if pay is reduced. The assistance of the staff counsellor will be available to staff on suspension to assist them to prepare a statement of financial commitments which would be taken into account when determining the level of pay. Pay will not be reduced until the officer has been given a reasonable opportunity to make representations (Appendix 9).
A member of staff who is suspended on part pay or without pay during investigations, or as a disciplinary penalty, may, in some cases, be eligible for State benefits and should be informed of this. If subsequently the disciplinary charge is not proven, management will arrange retrospective payment for the period of suspension but will adjust the amount to take account of any State benefits received whilst suspended. However, if the disciplinary proceedings result in a penalty, the person exercising disciplinary powers may decide, after considering all the circumstances, that pay withheld must be wholly or partly forfeited as part of the penalty.
Suspension on full or part pay counts as qualifying service for pension purposes in the normal way. Where an officer who is on suspension, declares themselves unfit for work and produces a medical certificate, their absence will then be recorded as certified sickness absence i.e. certified sickness absence overrides the suspension. The period of sickness absence will be paid at the appropriate level of sick pay. The suspension will be reinstated once the officer has been medically declared fit to return to work.

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Formal investigations

Except in cases where the facts of the alleged misconduct are not in dispute (see paragraph 28) the ABM/Personnel 2 will instigate a formal investigation. The aim of this investigation will be to make every reasonable attempt to establish the facts.
The levels of authority for carrying out formal investigations are described in paragraph 12. The investigating officer will not be the disciplinary authority (who makes the final decision on whether the disciplinary charge is proven), to ensure that the investigation and decision making processes are kept separate. To avoid staff in Area/HQ Personnel being investigated/disciplined by their own line management, equivalent levels from another Area/HQ Branch will take on the roles of investigation, suspension and disciplinary authority as appropriate.
Staff carrying out formal investigations will usually:

collect statements from material witnesses;
arrange an interview with the individual, advising them in advance in writing of the purpose of the interview (Appendix 10), the nature and perceived seriousness of the allegation and of their right to be accompanied by a trade union representative or colleague. They should also be provided with a copy of the Discipline chapter. A note needs to be made of the interview and copied to the individual to give them a chance to comment;
try to resolve any discrepancies, e.g. by re-interviewing witnesses if necessary;
aim to carry out their investigation without undue delay at any stage;
produce a record of the investigation which will provide a basis for considering whether to proceed with a disciplinary charge. Copies of any witness statements, and other supporting documentation, should be attached.

Searches of desks and cupboards etc. on official premises will normally be carried out with the consent and, where appropriate, in the presence of the individual concerned and, in any event, in the presence of a witness, preferably a member of staff independent of the investigation.
If it is decided by the ABM/Personnel 2 for HQ staff not to proceed further the individual will be informed, in writing, as soon as possible (Appendix 11). In that circumstance, no papers relating to the investigation will be retained on the individual's personal file.

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Putting disciplinary charges to the individual

If the Area Business Manager/Personnel 2 decides to proceed with a formal disciplinary charge, as soon as possible thereafter the member of staff will be given a minute (Appendix 12) which will specify the following:

details of the alleged misconduct;
whether the alleged misconduct, if proven, would be deemed serious or gross misconduct and the disciplinary penalties which may follow, including whether it may lead to dismissal;
a reminder that they may be assisted by a trade union representative or a colleague throughout the disciplinary procedures;
that they need not respond at this stage but will be given a full opportunity to do so in due course.

A copy of any material supporting the disciplinary charge (usually including any produced as a result of a formal investigation) and a copy of the Discipline chapter (if not already provided at an earlier interview) will also be attached.

The individual will be invited to attend a disciplinary hearing to give them an opportunity to state their case. Written representations may also be submitted. The written response to the disciplinary charge or charges (either accepting the invitation to a disciplinary hearing and/or submitting written representations) must reach the disciplinary authority within 10 working days of the date of the minute setting out the disciplinary charges. The disciplinary hearing will normally be held within 10 working days of the date of the acceptance of the invitation.

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Conducting disciplinary hearings

If a disciplinary hearing is to take place the individual will be advised in writing of the date, time and place of the hearing and who will be conducting it. If the disciplinary hearing cannot take place within the timescale set out in paragraph 41, for example because of illness or incapacity of the individual or their representative, the reason should be recorded and revised arrangements made as soon as practicable. Where a member of staff opts not to have a hearing, all papers, including any written response, should be sent to the disciplinary authority for a prompt decision to be made based on the material available.
The officer exercising disciplinary authority will conduct the disciplinary hearing. The level of authority for conducting disciplinary hearings and exercising disciplinary powers is described at paragraph 12. If the alleged misconduct is specific to a particular technical expertise, then the disciplinary authority will normally be assisted and advised on relevant technical matters by an adviser fully qualified or experienced in that field.
The purpose of the hearing is to enable the disciplinary authority to consider all the material relating to the alleged misconduct and to consider any material in defence of the disciplinary charge and representations from the individual in order to reach a decision on whether or not the charge is proved. The hearing is not intended to be a court of law and should be conducted as informally as possible.

It is the duty of the disciplinary authority to consider only the material submitted during the course of the hearing in the presence of the charged individual and care should be taken not to allow extraneous material to influence the disciplinary authority's judgement. The disciplinary authority should listen to the evidence and any representations and ask questions only to seek to clarify ambiguities or resolve apparent conflicts in the material submitted. The disciplinary authority should avoid interrogative questioning. Where ambiguities or conflicts remain unresolved in the opinion of the disciplinary authority they may:

require the investigating officer to make further enquiries, including interviewing witnesses
interview any witnesses at a further hearing in the presence of the charged individual (provided both parties are agreeable to this)
re-convene the hearing as appropriate.

The charged individual will maintain a right to respond to any additional material.

The disciplinary authority will also receive any plea in mitigation of the charge and the penalty at the hearing. Any additional enquiries instigated by the disciplinary authority will normally be completed within 10 working days of the original hearing.

Staff have a right to be accompanied and represented at the hearing by a trade union representative or a colleague, and, save where the TU representative is a paid official of the union, travel and subsistence expenses will be paid in accordance with the CPS rules on travel and subsistence. A note taker will be present and a record of the hearing (but not a verbatim transcript) will be produced. As soon as practicable after the hearing, the member of staff will be given a copy of the note of the points covered and given the opportunity to indicate any perceived inaccuracy in this note.

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Reaching a decision

Following receipt of the papers relating to the case and the conclusion of any hearing and further enquiries, the disciplinary authority will decide whether the disciplinary charge is proven. This decision will normally be made within 7 days of receipt of the individual officer's written comments on the record of the hearing.
Disciplinary cases are decided on a balance of probabilities. However, a threefold test must be applied:

there is a genuine belief that the member of staff acted as charged;
there are reasonable grounds on which to base this belief;
an investigation into the misconduct was carried out which was reasonable in all the circumstances.

Where a charge is not proven, the individual will be informed promptly in writing (Appendix 13). If the individual is still on suspension it will cease and any pay withheld will be restored (less any State benefits obtained).
Where a charge is proven, the disciplinary authority will decide whether a disciplinary penalty is appropriate and, if so, what form it should take. In considering the appropriate penalty amongst the factors to be taken into account are:

the penalty imposed in comparable cases;
the individual's disciplinary record;
any mitigating circumstances, including a report from their Counsellor if available and relevant;
whether the proposed penalty is reasonable and justifiable having regard to all the circumstances.

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Action short of a penalty - written warnings

In some cases, for example where there are compelling mitigating circumstances, the disciplinary authority may decide not to impose a penalty as such, but to issue a written warning (Appendix 14). Often referred to as a letter of displeasure, this warning will:

detail the misconduct;
state in specific terms what standard of conduct is expected of the individual and within what timescale any improvement is necessary;
make clear that a further breach of staff rules or unacceptable behaviour within 12 months may lead to a disciplinary penalty being imposed.

A copy should be placed on the individual's personal file held by the ABM/Personnel 2. Provided there has been no further breach of staff rules, this warning will be removed from the personal file after one year and the member of staff notified in writing.

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Disciplinary penalties

Depending on the seriousness of the misconduct, disciplinary penalties may take one or more of the following forms:

written reprimand;
a bar on future pay awards or withdrawal of pay awards or bonus payments (in whole or in part) already earned for a specified period (usually not longer than 12 months);
suspension from duty with loss of pay for a specified period;
downgrading, including a ban on promotion/progression, temporary promotion/progression and deputising for a specified period. Downgrading includes removal from a post attracting additional pay or allowances;
ban on promotion/progression or consideration for promotion/progression, including temporary promotion/progression and deputising for a specified period from 1-3 years (this can also include removal of an individual's name from a current waiting list);
dismissal. Except for gross misconduct, no one will be dismissed for a first disciplinary offence.

If dismissal is being considered as the appropriate penalty where a penalty/warning for an earlier offence of serious misconduct remains on file, the papers must be referred to Personnel 2, who retain the authority to dismiss in such cases.

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Written notification of the penalty

If it is decided that a disciplinary penalty is appropriate, the disciplinary authority (see paragraph 12) will notify the member of staff concerned in writing (Appendix 15), detailing:

the penalty being imposed and its duration;
the reason for the penalty;
(save for in dismissal cases) the likely consequences of further misconduct;
what right of appeal exists and how it can be exercised.

Where the penalty is not dismissal the individual will be asked to sign a copy of the minute acknowledging its receipt. This copy will be placed on the personal file held by the ABM/Personnel 2.

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Action in particular cases

TU representatives

The code of conduct, staff rules and disciplinary procedures apply equally to staff who are trade union representatives. However, normally no disciplinary penalty will be imposed on a TU representative until the circumstances of the case have been discussed with the senior trade union representative or full-time official of the union concerned.

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Damage to property and losses to public funds

A member of staff who damages official property or causes a loss to public funds, either through negligence or deliberately, may be required to pay for the damage or make up the loss either in whole or part. Similarly, payment made for any period of unauthorised absence may have to be reimbursed. All such payments may be recovered by deduction from pay, but the arrangements made for this will take account of possible hardship.
If a member of staff is dismissed for misconduct involving any loss to public funds, any unpaid salary up to the date of dismissal or other sums of money due may, and normally will, be off-set against the loss.

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Criminal offences

Staff should refer to the Conduct chapter to check the rules governing criminal offences.
In cases involving criminal offences, no disciplinary charge will be put until the criminal case is completed. There may be circumstances in which it will be appropriate to proceed with disciplinary action on related matters even if there is a discontinuance of the criminal case or the individual is found not guilty. If so the member of staff will be advised (Appendix 16). However, the opportunity will usually be given to make representations before a decision is reached and to be assisted by a trade union representative or colleague.
Where the member of staff has been given an immediate prison sentence and is, therefore, unavailable to attend a disciplinary hearing, written representations only will be allowed. Staff sentenced to immediate imprisonment are likely to be dismissed on the grounds of gross misconduct.

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Records and time limits

The full circumstances of any formal disciplinary matter will be recorded in the discipline register in accordance with paragraph 13. Where a case is proven the relating papers will be retained on an individual's personal file for 12 months where no penalty is imposed; or for 3 years where a penalty has been imposed.
All written warnings are time limited. Any written warnings issued by line managers (paragraph 24) or by Personnel (paragraph 50) will be removed from the individual's personal file after one year unless any formal disciplinary action (or any procedure which might lead to such action) is taken or begun before the year elapses.
Reprimands given in relation to serious misconduct will not be taken into account in subsequent disciplinary proceedings after a lapse of 3 years. Staff will be notified in writing when warnings and other disciplinary papers have been removed from their personal file.
Penalties will be imposed immediately and will not be held in abeyance if an individual appeals or notifies an intention to appeal. If the appeal is successful the penalty will be removed and remedial action taken.

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Appeals procedure

In cases of minor misconduct a member of staff who receives an oral or written warning may appeal to the countersigning officer (or, if the countersigning officer issued the warning, to the countersigning officer's line manager). Any appeal must be in writing and must reach the countersigning officer within 10 working days of the issue of the warning. The countersigning officer will consider the appeal in the manner he or she considers most appropriate and will usually let the member of staff have a response within 10 working days. The decision of the countersigning officer is final.
A member of staff against whom a charge of serious or gross misconduct is proved may appeal against the finding and/or the penalty. The appeal must be received by the appellate authority within 10 working days of the date of the decision notice. Late appeals will only be considered after this period has elapsed if, in the opinion of the appellate authority, good reason for the delay is given. Staff may be assisted in making the appeal by a trade union representative or colleague.
On receipt of the appeal the appellate authority will consider the appeal and all papers relating to the case to satisfy themselves that:

it was correct to deal with the disciplinary matter as serious or gross misconduct;
the disciplinary procedures were correctly and fairly applied;
there were reasonable grounds to justify the finding of the disciplinary authority;
if the above three tests are satisfied, that the penalty imposed by the disciplinary authority was appropriate in all the circumstances and consistent with those imposed in comparable cases.

As the appeal is by way of a review it is not open to the appellate authority to impose a finding of guilt for any new allegations for which charges have not been put. In such an event the appellate authority will consider whether a fresh charge should be put to the appellant.

The appellate authority will not usually substitute a more severe penalty than that imposed by the disciplinary authority except in circumstances where the individual refuses to accept the original penalty and dismissal is the only option.
The appellate authority will accede to any request from the individual for an interview before reaching a decision. At such an interview the individual may be accompanied and represented by a TU representative or colleague of their choice.
Every effort should be made by the appellate authority to make a decision within one month of receipt of the appeal.
If it is decided that the original decision was fair and reasonable, the individual will be informed in writing as soon as possible. If either the finding or the level of penalty imposed is not upheld the individual will be informed and advised of the remedial action that will follow. Details will be given of why the original decision is upheld or has been altered.
A member of staff who has service of twelve months or more in the Department and is dismissed on disciplinary grounds may appeal to the Civil Service Appeal Board. The right of appeal does not affect the person's statutory right to complain against unfair dismissal to an Employment Tribunal, which must be done within 3 months of the date of dismissal. Further information about making an appeal to either the CSAB or to an Employment Tribunal can be found in Volume 2 Chapter 5 (Complaints and Other Related Procedures).

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Chapter 3 - Discipline policy pre 1 August 2007

Appendices

Introduction

Principles

Which procedure - discipline or inefficiency?

Types and examples of misconduct

Types of misconduct

Gross misconduct

Serious misconduct

Minor misconduct

Procedures

Disciplinary powers

Preliminary steps

Counselling

Cooling off periods

How to deal with minor misconduct

How to deal with serious and gross misconduct

Action pending completion of an enquiry

Formal investigations

Putting disciplinary charges to the individual

Conducting disciplinary hearings

Reaching a decision

Action short of a penalty - written warnings

Disciplinary penalties

Written notification of the penalty

Action in particular cases

TU representatives

Damage to property and losses to public funds

Criminal offences

Records and time limits

Appeals procedure

The Crown Prosecution Service

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