Our annual, one day conference for school leaders helps you to keep up with the pace of change and get the most out of your employees. At this year’s conference we heard from keynote speakers Nick MacKenzie and Heather Mitchell on the changing education landscape and how employment law changes affect schools and academies. Our education and HR experts also covered the post-election employment position, restructures, pay and reward, managing misconduct, strikes and work to rule, and leadership and management judgment in respect of HR. https://www.brownejacobson.com/education/services/employment-and-human-resources

1. HR conference for school leaders
Managing misconduct workshop

2. Managing misconduct
Paul Miner, HR Consultant, Browne Jacobson LLP
11 October 2016
Setting expectations and what a fair process looks like

3. Purpose of today’s session
To improve your knowledge and confidence to deal with issues of
employee misconduct by:
• understanding the law and good practice on employee misconduct
• setting expectations and rules
• knowing the steps to be taken in a fair process
• appreciating the risks of getting things wrong
• interaction and Q&A

4. Terminology

5. What is misconduct?
• no legal definition of misconduct – it’s up to the employer to
define
• policies and rules define what type of conduct the employer
regards as misconduct and gross misconduct
• communicate these definitions to all employees when they
start work and throughout employment

6. Misconduct v Lack of capability
• both result in poor performance
–misconduct – within employee’s control
–lack of capability – outside employee’s control
• misconduct is any behaviour or conduct that falls below
required standard
• it is the employer’s standard, policy or rule that is relevant
when assessing misconduct rather than manager’s subjective
opinion

7. What is gross misconduct?
• gross misconduct is misconduct of such a serious nature that
it fundamentally breaches the employer/employee
contractual relationship
• entitles employer to dismiss the employee summarily

8. Over to you…
Here is an example of gross misconduct:
• theft of school property
Can you think of some others?

9. Summary dismissal
• without notice or pay in lieu of notice
• takes effect immediately
• employee’s contractual rights and benefits cease
• irrespective of severity of misconduct don’t assume dismissal
will be fair
• on the spot dismissal almost always unfair
• always follow required procedures before taking a decision
to dismiss

10. Disciplinary rules
and procedures

11. Employees…
• need (and like) to know what the rules are
• need to know what will happen if they break the rules
• want to see that you are fair and consistent in the
application and management of the rules

12. Disciplinary Rules
Disciplinary rules are useful because they set standards and make it
clear to employees what conduct is not acceptable
Rules can be found everywhere!
• in policies and procedures
• in the employee’s contract
• in the organisations protocols and practices
• in management briefings/instructions
• in external guidance, statute etc.
• in the disciplinary procedure

13. Disciplinary procedures
• you must have one. Employee’s Statement of Main Terms
must refer them to it and where they can find it
• sets out how you will deal with employee misconduct – fair
and consistent treatment for all
• no legally required structure but usual for three stage
hierarchy of warnings prior to dismissal, e.g.
 formal verbal warning
 written warning
 final written warning
 dismissal

14. Dos and Don’ts
Do Don’t
 Make sure you are familiar and
fully understand your disciplinary
procedure
 Apply the rules and procedures
inconsistently
 Ensure your staff know the rules
and penalties
 Make sure rules and procedures are
communicated to all staff

15. Tackling misconduct

16. Allegations
Where do they come from?
• direct observation/knowledge
• informants
• colleagues
• students
• parents
• outside people

17. Informal approach
• good first step in the event of minor misconduct, e.g. timekeeping
• line manager to hold informal meeting with member of staff
• ensure member of staff understands why his/her conduct is
unsatisfactory
• seek agreement on making sure behaviour does not continue/recur
• set a date to review progress/conduct
• keep a record/issue letter of advice
• don’t continue with informal approach if no improvement – move
up a gear to formal

18. Formal approach
Follow procedure:
first step – investigate

19. Investigations

20. Investigation
• keep it proportionate
• some initial investigation may lead to swift resolution
• fact finding
• interviewing witnesses and employee
• checking rules, procedures, expectations, previous
disciplinary record etc.
• determine whether there is a case to answer
• investigation report

21. What is the standard of proof?
1. your investigation must be ‘reasonable in all the
circumstances.’
2. the conclusions drawn and decisions made will be based on
the ‘balance of probabilities.’

22. Is the allegation related to safeguarding?
• ensure DSL is aware
• contact LADO
• consider LADO’s advice
• consider if suspension is necessary
Read and follow statutory guidance

23. Keeping Children Safe in Education 2016

24. Suspension
• suspension not a disciplinary sanction or prejudgement
• neutral action
• keep suspension under regular review and as short as
possible
• usually appropriate in cases of alleged gross misconduct

25. Disciplinary Hearings

26. Disciplinary Hearing
• confirm in writing to employee
• advise them of their right to be represented
• make allegations clear
• let them know the possible outcomes
• include all paperwork that you will rely on at the meeting
• explain your position on witnesses
• be mindful that you may need to re-arrange once

27. Disciplinary Hearing
Main purpose is to give the employee the opportunity to:
• explain/state case
• make representations
• offer mitigation
… before deciding whether or not to impose a disciplinary
sanction and at what level

28. Disciplinary Hearing
• make sure you follow a clear running order
– investigating Officer presents first
– employee statement of case
– witnesses
– cross questioning
– opportunities to summarise
• at the end summarise salient points
• adjourn to make decision
• communicate outcome to employee verbally then in writing
• right of appeal

29. Making the decision
• consider all of the information – written and verbal
• what evidence supports or does not support allegations?
• how reliable is the evidence?
• what is the mitigation / explanation?
• has the employee acknowledged their conduct?
• are the allegations misconduct or gross misconduct?

30. Right to be accompanied
• legal right for employee to be accompanied at disciplinary
hearing but not investigatory meeting (unless in policy)
• companion can be TU representative or fellow worker –
beware friends/relatives
• companion may not respond to questions
• unavailability of companion is reason for one postponement

31. Disciplinary Outcomes

32. Outcomes
• need to be proportionate
• need to be reasonable in the circumstances

33. Warnings
A formal warning should:
• explain the misconduct
• acknowledge the explanation or mitigating circumstances
• state the improvement required
• state what will happen if misconduct repeated
• specify how long the warning will remain ‘live’
• give details of appeal rights – by when/to whom etc.
• be recorded

34. Shelf life of warnings
• warnings active for disciplinary purposes for defined period
of time
• no time periods laid down in law – up to employer
• adhere to time periods set out in disciplinary procedure
• if misconduct occurs while warning active step up to next
level
• after time period warning lapses – but not necessary to
remove from file

35. Dismissal
• following series of formal warnings, and if misconduct
continues, then dismissal may be appropriate (‘totting up’
procedure)
• dismissal last resort
• ideally a different manager stepping in to chair dismissal
hearing
• dismissal without warnings unfair unless gross misconduct
• appeal rights

36. What makes a dismissal fair?
• a fair reason to dismiss, e.g. conduct
• follow a fair procedure
• was it reasonable to dismiss for that reason?
–“band of reasonable responses”
• remember unfair dismissal and redundancy requires two
years’ service

37. ACAS

38. Why it is important to get it right
• being a good employer
• unfair dismissal compensation limits
basic award: £14,370
compensatory award: £78,962 or 52 weeks’ pay*
*lowest value applies
• discrimination claims
no cap
injury to feelings award
• breach of contract claims

39. Referrals
Criteria differ
• DBS – considers cases that concern safeguarding matters, i.e.
harm or risk of harm to a child. Can bar an individual
from working with children and vulnerable adults.
• NCTL – considers cases where a teacher’s conduct is
incompatible with being a teacher. Can prohibit a
teacher from undertaking unsupervised teaching work in
schools
• (think teachers’ standards)

40. Any questions?

41. Further information
www.brownejacobson.com/education

42. Contact us
Paul Miner
0121 296 0666
paul.miner@brownejacobson.com
www.brownejacobson.com/education
Please note
The information contained in these notes is based on the position at March 2016 . It does, of course, only represent a
summary of the subject matter covered and is not intended to be a substitute for detailed advice. If you would like to discuss
any of the matters covered in further detail, our team would be happy to do so.
© Browne Jacobson LLP 2016. Browne Jacobson LLP is a limited liability partnership.