In my previous life as an HR consultant, when managers had to deal with conduct issues, this question cropped up time and time again.
Don’t get me wrong – hospital HR policies are incredibly detailed and are often used as a ‘how-to guide’ when it comes to following the disciplinary process. The unions wouldn’t have it any other way! But confusion still reigned as managers weren’t sure what they could dish out in terms of sanctions.
Policies could sometimes be contradictory:
“You should always aim to deal with conduct issues informally in the first instance”
This advice might be followed by:
“For more serious offences a formal process must be instigated”
So you can understand how the confusion arose!
The advice I always gave was based on the following:
- Are we talking ‘gross misconduct’?
- If not, what was the impact of the alleged misconduct?
- What does the employee have to say about it?
- Has this ever happened before?
- Are there any other concerns about this person’s conduct?
- Are there any mitigating circumstances?
If the answer to question 1 is ‘yes’, then you must follow a formal investigation process. Even if the outcome itself only turns out to be a verbal warning, the employee needs to understand that the conduct displayed could be construed as gross misconduct.
Question 3 is key, and the employee should be given the right to reply. Even if you then go on to instigate a formal investigation, you should always have an initial talk with them to find out their side of the story. They may have a valid reason or explanation for what happened, or even a completely different story. It’s only with this information that you can decide whether to issue a verbal warning or start a formal investigation.
Questions 4-6 are important to take into account when considering an informal outcome or no action at all. If you have a long-standing member of staff with a clean disciplinary record who you know is going through a tough time, you may want to cut them some slack. However, that doesn’t mean you shouldn’t address the issue at all – a conversation should still occur.
What are the implications of a verbal warning?
Verbal warnings ideally shouldn’t stay on record for more than 12 months. Most organisations stipulate 6 months as they operate a sliding scale – 6 for verbal, 12 for first written, 24 for final written.
As the sanction is informal and normally delivered by the line manager without going through a formal investigation process, there’s no right of appeal against it. This sounds bad for the employee, but on the plus side, you can’t mention an informal sanction when giving a reference for the employee.
While the sanction is often referred to as a ‘verbal’ warning, you should still document and send the employee a letter explaining the conduct displayed, a summary of the discussion you had about it, how you came to your decision and the outcome. You should also stipulate what you expect to see from them going forward and what may happen if the behaviour is repeated. A sample template can be found here [PLUS]
As with any sanction, once the warning has expired it needs to be removed from the record and should not be referred to again.
When should I consider a formal investigation process?
I’m sure we all have a list of ‘gross misconduct’ offences in our disciplinary policies, with “this list is not exhaustive” printed at the bottom, so I won’t reinvent the wheel here! Anything that could be considered gross misconduct should be investigated formally.
I’d also recommend investigating anything that would appear to go against an individual’s professional code of conduct. For example, a nurse who is repeatedly refusing to wear uniform or PPE would be in breach of the NMC Code relating to infection prevention and control and probably a few other bits of policy you could quote from!
You should also consider a formal process if the employee has a live informal sanction on their record – even if it’s for a different offence. I once came across a manager who’d given an employee four verbal warnings for various things, all of which would be classed as misconduct. They came to me tearing their hair out as they didn’t know what to do with this person and they wished they could dismiss them. I explained to them that with four sanctions, if carried out correctly, they could well have dismissed them already! Misconduct is misconduct, and we don’t deal with each offence as a ‘first-time offence’ but we see them as cumulative.
You should also look to formally investigate anything that could lead to:
- Patient harm (even if deemed minor or a near-miss)
- Financial loss to the practice
- Reputational damage to the practice
- Breaches of health and safety policy/protocols
- Refusal to carry out a reasonable management request
- Damage to premises or equipment
What needs to happen in a formal investigation process?
Firstly the employee needs to be made aware of what they’re being accused of. This means meeting them informally before the process starts to tell them what’s going to happen. They’ll be invited to a meeting with the investigator to give their side of the story and to be presented with all the information. You may choose to do the investigation yourself or you may wish to delegate it to someone else who will then present their findings to you. The key thing to remember is that whoever investigates the matter should be in a more senior position to the alleged perpetrator, and ideally, they should have some knowledge of the person’s role (e.g. lead nurse investigating an HCA, operations manager investigating a receptionist, GP partner investigating a salaried GP, etc.).
There’s no statutory entitlement to representation at an investigation meeting, but I’d always recommend offering them the chance to bring in a union representative or a colleague (not a friend or relative), if they so wish. Trust me; it looks good if you do! If the employee is a clinical professional, they’ll probably have a union representative.
Document the meeting. Ask probing, open questions and let them talk. This is their opportunity to put their side of the story across. Remain objective. At the end, ask them if they have any questions for you and explain what the next steps and possible outcomes are. There should be no surprises.
Compile your findings into a report (e.g. Disciplinary and Grievance Investigation Report Template [PLUS]). The report should be based solely on facts and the evidence you’ve been given. You can conclude what you think to be the case, but NEVER recommend what level of sanction, if any, should be applied. The person who reads the report should make their own decision based on the evidence, not on what you recommend. The most you should say is whether you feel there’s a case to answer or not. This prevents the employee from claiming later that the outcome has been prejudged or influenced by the investigator.
Ensure that the person reading the report and making the decision is impartial and has had no involvement in the circumstances previously.
You may find that the allegation is so serious that a hearing needs to be convened to consider the evidence. The person reading the report should chair the hearing, but ideally they should be supported by someone else who’s impartial and who can advise them and provide a fresh perspective (potentially a PM from another practice, or an independent HR consultant). The employee should be invited to attend the hearing and present their case to the panel. At this point, they do have the statutory right to representation, so ensure they’re aware of this. Witnesses may need to be called.
When delivering the outcome, make sure it’s followed up in writing, there are some examples here [PLUS] and covers what the allegation was, what the investigation found and how the sanction was decided. You also need to consider, if applicable, whether a referral to a professional body is needed.
If dismissal is a possible outcome – and you should know this fairly early on in the process – consider whether you need professional HR support in either carrying out the investigation or supporting a panel hearing. You can also contact ACAS at any time for advice.
It sounds scary, but don’t let it stop you from tackling misconduct when you see it. Letting things go will only breed resentment and copycat behaviour in your teams. A lot of the time an informal warning will go a long way, especially if you remind the employee that repeat behaviour may lead to formal action being taken. And if you need advice on which route is most appropriate, ask the forum!