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Part 3 deals with Suspension form Duty, but we do not set this out, because, although our attention was drawn to this section, there is no question of Mrs Beart having been suspended form duty in this case: at all material times during the investigation she was away from work because of sickness.
Part 5 of the Code deals with the evidence available, the responsible manager concludes that disciplinary proceedings are justified, he or she must decide, in consultation with the appropriate Headquarters Personnel Division where necessary, whether the case should be treated as:
"a minor case" or
"a serious case."
Paragraphs 5.9 and 5.10 are also important.
Paragraph 5.9 provides:-
"In deciding how a case should be treated the main consideration is whether, taking account of:
The seriousness of the alleged misconduct, and
The previous disciplinary record of the member of staff concerned, and misconduct, if proved, would be likely to lead to one of the following types of disciplinary action:
dismissal
down-grading
temporary ban on promotion
loss of increment or part of an increment
If it would, the case would be treated as a serious case."
Paragraph 5.10
"The decision to take formal disciplinary action must then be notified to the member of staff concerned by giving them in person (or where, exceptionally, that is not possible by sending them):
a statement--outlining the alleged misconduct,
stating whether the case is to be treated as minor or serious and indicating the range of possible outcomes and inviting them to indicate whether they accept the charge or wish to challenge it and to offer further comments;
an extra copy of the statement of the member of staff to pass to their trade union representative or work colleague of they so wish;
copies of all written evidence which may be used at the disciplinary hearing. In addition they should be provided with any other evidence obtained during a preliminary investigation which may be relevant to their case and the names of any individuals who may be asked to attend the hearing…"
Paragraphs 5.13 and 5.14 follow the sub-head "Attendance at a Hearing When On Sick Absence."
Paragraph 5.13 provides that a fact that a member of staff is on sick leave when facing a disciplinary hearing should not automatically cause delay in dealing with the matter. Managers must consider the nature of the illness or injury, and decide whether it is reasonable to continue with the disciplinary hearing in the circumstances.
Paragraph 5.24 is important, and provides:-
"In general, however, when a member of staff has a sick certificate which indicates that they are unlikely to attend a disciplinary hearing, the hearing must be postponed. However, if after six weeks they are still unable to attend a hearing the following options must be offered to the member of staff:-
to attend an interview in person even if not fit for full duty
to submit a detailed written reply to the allegation or, if called as a witness, a written account of the relevant evidence; and/or
to brief a work colleague or trade union representative to attend the hearing as their representative and on their behalf.
The only other point of the Code to which we were referred is paragraph 1.15 which, having provided that the "defendant" must be given the opportunity to ask for witnesses to attend the disciplinary hearing, goes on to provide that the Officer conducting the hearing may also request the attendance of witnesses.
Lastly, we turn to some points in the Guidance Notes. We quote form paragraph 11 of those Notes:-
"Whilst considerable care must be taken in dealing with cases of gross misconduct, it is important to proceed with the utmost speed and to remain, as far as possible, within the prescribed time limits.
Some cases of general misconduct may be treated as gross misconduct if they are deemed to be of a sever nature, e.g. reporting for duty when seriously incapacitated by alcohol.
A test of reasonableness should be applied in deciding if a case is one of gross or general misconduct. For example, general misconduct might apply in the case of a member of staff who fraudulently claims a small amount more than allowed in travelling expenses, but it might be gross misconduct if they stole a small sum of money from and inmates cell. Care and good sense should always be exercised in dealing with such matters."
Paragraph 19 deals with deciding whether a case should be heard under the "minor" or "serious" procedure. It goes on:-
"It is not possible to decide this simply according to the nature of the alleged misconduct, since apparently minor misconduct can sometimes turn out to be more serious than the nature of it suggests. For example, repeated lateness or abuse of the sick absence procedures would normally be a minor offence. If, however, a member of staff has failed to improve their behaviour in this respect and has run through the gamut of formal disciplinary warnings, including a final warning, then the next penalty they face would be dismissal which would require treating it as a serious case. Many other types of misconduct could be either minor or serious, depending on the circumstances and the context. Managers must use their judgement based on evidence collected in the investigation…."
The Guidance Notes go on to discuss penalties such as dismissals or warnings, and at paragraph 32 considers the use of other disciplinary penalties. One possible alternative penalty mentioned is financial restitution. We mention this purely because we were referred to this paragraph in the course of the hearing.
It will be seen that there is a reference at various points to the trade union representation. Mrs Beart was not a trade union member, so the right to trade union representation did not arise.
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