Capability and Disciplinary Procedure - Guidance Notes

NORTHUMBERLAND COUNTY COUNCIL
GUIDANCE NOTES ON THE OPERATION OF

THE CAPABILITY AND DISCIPLINARY PROCEDURE
CONTENTS
Section
Page
PURPOSE OF THE GUIDANCE............................................................................................1

Application of the procedures to chief officers.......................................................................1
when are the procedures used?............................................................................................1
Informal actions................................................................................................................. 1
Advice and assistance for managers................................................................................1
Is it capability or is it discipline?.........................................................................................1
The Nominated Officer...........................................................................................................1
Powers of Nominated Officers...........................................................................................1
Duties of Nominated Officers.............................................................................................1
Briefing the Investigating Officer........................................................................................1
Conducting the investigation.............................................................................................1
The rights and duties of employees..................................................................................1
Investigating complaints against Investigating or Enforcement Officers............................1
Suspension pre or post investigation................................................................................1
Preparing the report for the Nominated Officer.................................................................1
Ensuring the rights of the employee during the hearing....................................................1
Dealing with the organisations witnesses.........................................................................1
Dealing with the employee's witnesses.............................................................................1
Managing challenges to witness statements.....................................................................1
THE CONCLUSION OF A CAPABILITY OR DISCIPLINARY HEARING.................................1
Coming to a decision......................................................................................................... 1
Communicating the decision.............................................................................................1
Securing improvement.....................................................................................................10
Cases involving fraud or falsifying information.................................................................1
Redeployment and demotion............................................................................................1
Requirement to work during the period of notice...............................................................1
THE APPEAL HEARING........................................................................................................ 1
Preparing for the hearing...................................................................................................1
Preparing and presenting the case...................................................................................1
The employeess grounds for appeal................................................................................1
Dealing with appeals during employees probationary period...........................................1
Coming to a decision......................................................................................................... 1
Reinstatement and re-engagement...................................................................................1
Debriefing and support...........................................................................................................1
REVIEW OF CAUTIONS AND WARNINGS...........................................................................1
Monitoring the employee...................................................................................................1
Expired cautions and warnings..........................................................................................1
Lifting monitoring arrangements........................................................................................1
Conditions of service issues...................................................................................................1
Attendance at a hearing or interview.................................................................................1
Annual leave during periods of suspension.......................................................................1
Sick leave during periods of suspension...........................................................................1
Entitlement to sick pay arising from disciplinary matters...................................................1
Applications for employment during periods of suspension..............................................1
Reinstatement and calculation of back-pay.......................................................................1
Payments on dismissal......................................................................................................1
Restitution in cases of fraud or theft..................................................................................1
Capability cases - other sanctions available......................................................................1
Discipline cases - effects on pay and future promotion.....................................................1
Northumberland County Council
Sample letters and documents...............................................................................................1

Letter to confirm agreed action pre formal capability or disciplinary................................17
"Drawing the line"............................................................................................................18
Informing an employee of an investigation......................................................................19
Invitation to attend a disciplinary hearing........................................................................20
Formal warning letter.......................................................................................................21
Final warning letter..........................................................................................................22
Notification of suspension letter......................................................................................23
Dismissal letter following previous warnings...................................................................24
Dismissal letter in a gross misconduct situation..............................................................25
Invitation to attend a capability hearing...........................................................................26
Confirmation of a capability follow-up hearing................................................................27
Formal caution letter........................................................................................................28
Final caution letter...........................................................................................................29
Dismissal on grounds of capability..................................................................................30
Asking an appellant for their grounds of appeal..............................................................31
Invite to appeal hearing ..................................................................................................32
Asking a complainant to put their complaint in writing.....................................................33
Seeking agreement of interview notes............................................................................34
NORTHUMBERLAND COUNTY COUNCIL

GUIDANCE NOTES ON THE OPERATION OF THE
CAPABILITY, DISCIPLINARY PROCEDURE
PURPOSE OF THE GUIDANCE
These guidance notes do not form part of the Capability and Disciplinary Procedure. They
are a statement of good practice, designed to assist managers to carry out their
responsibilities under the Capability and Disciplinary Procedure. The guidance notes are
consistent with current employment legislation, case law and the relevant ACAS Code of
Practice.
APPLICATION OF THE PROCEDURES TO CHIEF OFFICERS
The Capability and Disciplinary Procedure applies to all formal capability and disciplinary
situations concerning employees of the Council except firefighters and those within scope
of Schedule 16 of the School Standards and Framework Act 1998. However, when applied
to Chief Officers, the following amendments are required in accordance with the Councils
Standing Orders.
The power of suspension of Chief Officers lies with the Chief Executive.
The power of suspension of the Chief Executive lies with the Leader of the Council in
consultation with the Monitoring Officer.
The power of dismissal of any Chief Officer including the Chief Executive lies with an
appropriate Panel of the Council.
Chief Officer appeals against dismissal will be heard by a panel of elected members
with those members being involved in the original decision to suspend or dismiss being
excluded from membership of the appeal panel.
The Head of the Paid Service may take disciplinary action (except for dismissal) against
any Chief Officer.
WHEN ARE THE PROCEDURES USED?
Informal actions
The primary purpose of the Capability and Disciplinary Procedure is to improve the
performance and conduct of employees. Usually the informal controls exercised during
routine supervision are sufficient and these should always be actioned initially. It will be
necessary to use the formal procedure where the normal supervisory process has failed to
work or where the issue is serious.
Occasionally, a manager will wish to bring unacceptable performance or behaviour to the
attention of an employee in a slightly more formal manner without using the full formal
procedure and this is acceptable. It is also good practice to attempt to obtain the
commitment of the employee to attain the expected standard of performance or conduct
and to confirm that commitment in writing after the informal meeting. However, the written
confirmation should not contain a caution or warning as written cautions and warnings can
only be issued if the formal procedures have been followed. A sample informal letter, which
managers are advised to adopt, is shown at the end of this document. You should make a
note of the content of any informal meeting and retain this as you may need to refer to this
meeting at a later stage.
Revised April 2010
Advice and assistance for managers

Advice and assistance is available from the Human Resource Service so that you feel
comfortable about your role in the supervisory, capability or disciplinary processes.
It is particularly important to consider seeking advice when:
deciding upon the scope of an investigation,

deciding whether or not to suspend an employee,
deciding whether or not to initiate formal action,
formulating the complaint against the employee,
coming to a decision after a hearing,
formulating the written decision of the hearing and
preparing the statement of case for the appeal.
By taking advice at these critical stages you will ensure that your actions are consistent with
the approach taken throughout the Council, ensure, that all relevant issues are covered in
the necessary documents and that any potential weaknesses in procedure or findings are
identified at an early stage.
Dealing with suspected financial irregularities
Financial Regulations require that the Director of Resources or his representative should be
made aware immediately of any suspected irregularity affecting the finances or property of
the Council. Audit staff will give guidance on how and by whom the financial aspects of the
case should be investigated.
Where the financial irregularity is significant the Director of Resources will consult with
Legal Services about referring the matter to the police.
Dealing with suspected incidents where a child or vulnerable adult has been harmed
or put at risk of harm
Any complaints or concerns in relation to a child or vulnerable adult being harmed or put at
risk of harm must be notified immediately to the appropriate safeguarding officer. The
relevant officer will give advice on how the investigation should be carried out.
Involving the police
The police may also need to be involved where serious misconduct or irregularities are
alleged to have occurred which do not involve the Council's finances or property, such as
assault or threatening behaviour. In such cases you should contact Legal Services about
referring the matter to the police.
The police may refuse to become involved until an internal investigation has shown that
there is a real possibility of a crime having been committed. In such cases, an initial internal
investigation should be carried out to establish whether or not this is the case. If a crime
appears to have been committed, consultations about police involvement should be
resumed.
Whenever the police are involved in a case care should be taken not to impede their
investigations. It is very rarely necessary to await the result of any criminal prosecution that
might ensue unless the police or the Crown Prosecution Service specify this.
Is it capability or is it discipline?
Revised April 2010
It is sometimes very difficult to tell the difference between capability and disciplinary issues.
There are two simple phrases which distinguish between capability and disciplinary issues:Capability is "I would if I could but ..."
and a possible reason might be:I haven't been trained,
my back won't let me,
I haven't got a licence; or,
I don't understand what you mean.
Discipline is "I can but I won't ..." and a possible reason might be:I don't care what you say,
why should I?,
I'm their boss so I can do what I like!
Some things are obviously dealt with automatically under disciplinary such as fraud, theft,
physical assault against a colleague or client, dishonesty, harassment, abuse of position
and bullying.
THE NOMINATED OFFICER
Powers of Nominated Officers
Only people nominated by the Chief Officer are empowered to take formal action under the
Capability and Disciplinary Procedure. A list of accredited officers authorised to take action
under these procedures is maintained by the Human Resource Service and is available on
the intranet.
Duties of Nominated Officers
The duties of the Nominated Officer are two-fold:
to ensure that the interests of the Council are protected.
to ensure that any employee who is the subject of a capability or disciplinary issue is
treated fairly and reasonably.
Selecting a Nominated Officer
A Nominated Officer should be allocated for each case as it arises, taking into account the
apparent seriousness of the issue and the experience of the Nominated Officer. In practice,
the Chief Officer may delegate the allocation of individual cases to one of the very senior
Nominated Officers.
Impartiality is essential and the Nominated Officer should, where reasonably practicable, be
a person who has not been previously involved in the matter.
Selecting an Investigating Officer
One of the first tasks of the Nominated Officer is to select an Investigating Officer, normally
from their own Directorate. An Investigating Officer is used in order to provide some
separation between the functions of "prosecutor" and "judge". The person who carries out
the investigation of a complaint should not conduct the capability or disciplinary hearing.
In both capability and disciplinary cases it is often appropriate for the employee's line
manager to be the Investigating Officer. However, there will be occasions when the nature
of the issue under investigation or the relationship between the employee and the line
manager make it inappropriate for the line manager to undertake that role. The Human
Resource Service can provide advice and guidance in selecting Investigating Officers.
Revised April 2010
When choosing an Investigating Officer you should consider that they will need to present
the case at the capability or disciplinary hearing (if there is to be one). If the case proceeds
to Employment Tribunal it is likely that they will be called as one of the key witnesses for the
Council.
Briefing the Investigating Officer
The Nominated Officer should ensure that the Investigating Officer understands the scope
and depth of the investigation required. This may change depending upon the findings of
the initial investigation.
ROLE OF THE INVESTIGATING OFFICER
The Investigating Officer has three distinct duties.
To be impartial and careful to weigh all the evidence obtained before coming to a
conclusion.
To prepare a report once all of the evidence has been gathered and make a
recommendation to the Nominated Officer about whether a formal hearing should be
convened.
To present the case for management if the Nominated Officer decides that a formal
hearing should be convened..
Conducting the investigation
In its simplest form, "investigating the case" could be as basic as asking someone to obtain
an employee's absence record and to report on whether or not all the absences were
correctly recorded and authorised. However, for more serious cases, the Investigating
Officer may need to draw up a plan for the investigation which should be carried out as
soon as possible.
The requirements set out in the document entitled Procedures for Hearings and
Appeals concerning notice of hearings DO NOT apply when arranging investigation
interviews or similar meetings. All that is required is to give reasonable warning of the
meeting. If an employee is unable to travel or be transported to work, the interview should
take place in a Council property convenient to the employees home, if practicable.
The rights and duties of employees
The document entitled Information for Employees sets out the basic information required
by an employee under suspension or investigation, the employee should be given a copy of
that document.
One of the most important implied terms in a contract of employment is mutual trust and
confidence. Therefore, it is reasonable to expect that all employees will be honest when
being questioned and that the Council will conduct its investigations and hearings honestly
and in good faith. A breach of that trust is frequently fatal to the contract of employment
but employees are often and understandably reluctant to "incriminate" themselves or their
colleagues. However, whereas a person under investigation might understandably not wish
to answer certain questions, the employer has the right to expect all employees to cooperate fully in all reasonable enquiries. Therefore, it may sometimes be necessary to bring
to the employee's attention the fact that concealment, dishonesty or any attempt to prevent
the Council from undertaking a proper investigation could in itself result in disciplinary
action being taken against the person concerned.
Revised April 2010
An interviewee can be accompanied by a trade union official or a work colleague but that
person is not a representative and must not answer questions on the interviewee's behalf.
It is, however, legitimate for that person to make representations to the interviewer if (s)he
considers that the questioning is oppressive or unfair. It is also in order for that person to
suggest a particular line of questioning to the Investigating Officer in order to ensure that all
relevant issues are covered.
Interviewing
Normally, it is better to interview all those who can throw any light on the alleged poor
performance or conduct before speaking to the person under investigation. Careful notes
need to be taken. Consideration may be given to taking along a note-taker in more complex
cases, however, it is best practice to type up notes of the interview and to sign and date
them. The rough or hand-written notes should be retained on file for future reference.
Verbatim transcripts of interviews are not necessary. A copy of the interview notes should
be sent to the interviewee.
Before commencing the interview, the Investigating Officer should set the scene by
informing the interviewee of:
the purpose of the interview.
check whether they wish to be accompanied by their trade union representative or a
colleague if they are unaccompanied.
Remind the interviewee that they must tell the truth.
Investigating Officers should be systematic in their questioning. It is advisable to prepare
some key questions in advance. In addition to attempting to discover what actually
happened, the Investigating Officer also needs to establish what should have happened.
For example, if a task has been done incorrectly clarify how it should have been done and
how the individual would know this. Finally, they should summarise to test their own
understanding of what has been said.
Investigating complaints against Investigating or Enforcement Officers
Complaints against Investigating or Enforcement Officers should be investigated in the
same way as any other investigation.
The purpose of many of these complaints maybe to discredit the veracity of a Council
witness when giving evidence in a criminal prosecution. The defence will make allegations
against the investigating or enforcement officer. The officer, under cross-examination in the
witness box will have to admit that they are the subject of a disciplinary investigation and
the intention is to discredit the Council's evidence.
If the investigation reveals that there is substance to the complaint then a disciplinary
hearing must be convened under the procedure. If the complainant refuses to put the
complaint in writing or if there is no substance to the complaint then the officer will be able
to state under cross-examination that the complainant refused to elaborate or that the
complaint was made but not substantiated.
Suspension pre or post Investigation
There may be a need to suspend an employee from duty without prejudice and without loss
of remuneration if initially the view is that it may constitute gross misconduct, gross
incapability or where an investigation into the alleged offence might be impeded by the
Revised April 2010
presence at work of the employee. The Nominated Officer will determine this. Consultation
with the Human Resource Service is advisable.
Other staff (where appropriate) should be informed of the suspension and investigation in
clear, unambiguous terms and it should be stressed that there is to be no assumption of
guilt.
In many cases, especially those involving alleged or suspected assault or abuse, the letter
suspending the employee from duty may prohibit contact with a named client or pupil or
with the establishment and its staff for a period of time. This step should only be taken
where the Nominated Officer feels it is necessary.
Where an employee is suspended, it is important to ensure that their trade union or work
colleague representative is given reasonable facilities to prepare a defence, including
access to the Council employees who might be called as witnesses for the employee.
The document entitled Information for Employees sets out the basic information required
by an employee under suspension or investigation and the employee should be given a
copy of that document.
In some instances where an employee is suspended where it is suspected that a
vulnerable person has been harmed or put at risk of harm notification must be made to the
appropriate regulatory body e.g. POVA, POCA, GSCC, GTC.
DEALING WITH THE FINDINGS OF AN INVESTIGATION
Preparing the report for the Nominated Officer
The report to the Nominated Officer should be prepared in the knowledge that it might be
produced in evidence in an Employment Tribunal. The following is likely to form part of the
report;
the brief given to the Investigating Officer and the name of the Nominated Officer
a brief statement on the background to the investigation,
if relevant, a brief section covering the structure of the unit or section in which the
employee works, the employee's start date and previous record and any working
and other relationships with people who have figured in the same investigation as
complainants or witnesses,
information relating to the people interviewed during the course of the
investigation,
copy of the key documents examined, considered or consulted,
a statement of what happened as far as is known, including reference to any
imponderables and uncertainties,
a statement of what should have happened; and
a recommendation about whether there should be any further action under the
Capability and Disciplinary Procedure and, if so, the degree of seriousness of that
case. However, the Investigating Officer should not express an opinion on the
sanction which (s)he expects to be taken.
pages should be numbered for ease of reference
interview notes attached as appendix
date of report and the name of the Investigating Officer
The final report should assist the Nominated Officer and the employee to understand the
issues being raised. Where appropriate it should contain cross-references to attached
documents.
Revised April 2010
RESPONSIBILITIES OF THE NOMINATED OFFICER

The Nominated Officer is responsible for ensuring that a full and proper investigation has
been carried out within the desired timescales.
They must also be satisfied that: all appropriate persons have been spoken to,
all aspects of the case have been considered, such as:
the immediate incident(s),
the background to the immediate incident(s),
the circumstances of the individuals concerned,
the employment history of the person(s) under investigation,
the disciplinary or capability record of the person(s) under investigation,
the relationships between employees; and,
"custom and practice", if relevant
all facts have been gathered and, where possible, verified.
Deciding whether to proceed with formal action
On receipt of the Investigating Officer's report, the Nominated Officer will need to decide
what action to take next and it is advisable to seek advice from the Human Resource
Service.
If the decision is to take no formal action under the Capability and Disciplinary Procedure,
and the employee knows that he or she was under investigation, the employee should be
told of the decision and understand how the case came to be investigated.
Alternatively, the Nominated Officer may decide that the person under investigation should
face a formal capability or disciplinary hearing.
Preparing for the capability or disciplinary hearing
Ensure that reasonable notice of the hearing is given, not less than a minimum of 5 working
days and the date and time of the hearing is convenient for all parties involved. If the
employee is genuinely unable to attend any hearing you arrange, for example if he or she
is ill, you must offer another reasonable date. If the employees representative cannot
make the date of the hearing you offer, the employee must propose another date and time
which should be no more than five days later than the original date. If this second hearing
is missed, you are entitled to be firm and proceed with the hearing.
The documentation sent to the employee should contain sufficient details of the complaint
and its possible consequences to enable the employee to be prepared to answer all
allegations and deal fully with them at the hearing.
If new facts emerge before the hearing (and after the documentation has been issued to
the employee) or during the hearing, which are significant it is better to postpone or adjourn
the hearing. This will allow sufficient time for further investigation and for the employee to
be notified of the facts and prepare a response.
Examples of letters inviting an employee to capability and disciplinary hearings are included
in this document and it important to ensure that no notification to any party involved in the
hearing appears to pre-judge the issue.
Conducting the hearing
Revised April 2010
The Nominated Officer chairs the hearing. They should introduce all the participants and
explain their roles in the process. They should control the pace of the proceedings so that
everybody has a fair hearing and that, as far as possible, every issue of uncertainty is
thoroughly examined. They should allow either side reasonable opportunity to adjourn if
necessary. They may also wish to call an adjournment to take advice from the HR advisor, if
present.
Normally, only one representative is allowed but to facilitate the training of trade union, HR
and management staff, an extra representative or member of staff may be permitted purely
in an observational capacity.
Ensuring the rights of the employee during the hearing
The employee has the following rights during the hearing: to be represented or accompanied by a trade union or fellow worker in accordance
with the document entitled Procedures for Hearings and Appeals,
to question the presenter on the statements made against the employee (note that
the presenter must be prepared to bring evidence to support the assertions being
made),
to question the presenter's witnesses (if any),
to bring his or her own witnesses (assuming they are relevant to the case),
to have his or her case and explanation heard; and
to remain silent. However, if the employee adopts this stance, you must make it
clear that by remaining silent, you will only have heard the presenter's side of the
story and that you will have to make up your mind on the outcome based only
upon the evidence presented. It is also important to bring to the employee's
attention the fact that concealment, dishonesty or any attempt to prevent the
Council from undertaking a proper investigation could, in itself, result in disciplinary
action being taken.
Dealing with the organisations witnesses
Where either side intends to call relevant witnesses they should give advance notice that
they intend to do this.
The presence of a witness to give personal evidence is usually more convincing than a
written statement; particularly in appeal situations. Therefore, it is advisable to have at least
one witness if there is likely to be a conflict of evidence at the hearing.
Where the presenter intends to rely on a written statement from a witness, the employee
(or their representative) may ask for the witness to be present so that questions can be put
directly. If the witness is a Council employee the request may be agreed. If a witness is
not a Council employee they cannot be compelled to attend.
Dealing with the employee's witnesses
An employee may bring witnesses to a hearing or submit written statements from witnesses
to support their case. It is the employees responsibility to ensure that a witness is willing
to appear on their behalf or give a statement. However where the evidence is strongly
against the employee, the employer is entitled to refuse to listen to all or some of the
witnesses on the grounds that their evidence will not affect the outcome of the disciplinary
proceedings. This may be true in the following situations: where witnesses are not denying the facts of an incident but are merely
expressing personal opinions regarding the effects
Revised April 2010
where witnesses are "outside experts" brought in by the trade union to express
opinions on matters of professional competence and expertise; or

where several witnesses are giving "character references" on the employee's
behalf and have no evidence relevant to the actual complaints being made.
Where there is any uncertainty over whether a witness should be called or not the Human
Resource Service should be consulted with.
Managing challenges to witness statements
If either side challenges a written witness statement, the Nominated Officer may allow the
witness to attend in person in order to clarify the matter in dispute and avoid delays.
However, the Nominated Officer should not compel the attendance of a witness in these
circumstances, especially if the witness is a pupil, a client or some other person requiring
sensitive treatment.
THE CONCLUSION OF A CAPABILITY OR DISCIPLINARY HEARING
Coming to a decision
Each case will be decided on its own particular circumstances. The standard of proof
required is that there are "reasonable grounds to believe" from the evidence presented that
the matter complained of did occur. This is not a criminal case where the case has to be
proven "beyond reasonable doubt". In reaching a decision the following should be taken
into consideration:
the nature of the complaint
the nature of the employees work
the employees level of responsibility and seniority
the employees previous capability and disciplinary record
any mitigating factors including the health of the employee
action taken in previous similar cases
sanctions available under the procedure
Your HR advisor will be able to provide advice and guidance.
Communicating the decision
When giving the decision at the end of the hearing it is advisable to write key points for
decision beforehand. This will ensure that the oral and written decisions are the same and
will avoid confusion.
It is important to remember to notify the appropriate regulatory body e.g. POVA, POCA,
GSCC, GTC re the outcome of the hearing for cases where an individual has been
suspended and/or dismissed.
Securing improvement
In most cases involving capability or discipline a reasonable employer will be expected to
take appropriate steps to bring about an improvement in the employee's performance or
conduct as well as issuing the necessary caution or warning. Where capability cautions or
disciplinary warnings are being issued, the Nominated Officer's decision will have to
incorporate the steps that need to be taken to achieve the required standard of work e.g.
closer supervision, more training. These steps must be included in the caution or warning
letter.
Revised April 2010
Cases involving fraud or falsifying information

Where a disciplinary hearing comes to the conclusion that the employee has obtained
money from the Council by fraud or other deception such as falsification of timesheets or
overtime records, consideration should be given to the question of recovery of the money.
Guidance should be sought from Audit staff and HR service before the disciplinary letter is
being formulated so that, if recovery is to be sought, that decision may be incorporated into
the letter.
Redeployment and demotion
Although the Council has reserved the right to impose redeployment or demotion under the
Capability and Disciplinary procedure, neither is appropriate in cases of gross misconduct.
They may be considered in lesser cases or cases of gross incapability but should not be
considered to be easy options.
Redeployment or a demotion should always be accompanied by a final caution in a
capability case or a final warning in a disciplinary case as it is very unlikely that the Council
could tolerate a further failure of capability or discipline.
The reason for redeployment or demotion is to retain the services of an employee, but in a
more suitable job. As the intention is to avoid dismissal, the redeployment or demotion of
an employee under these procedures would take priority over the requirements of the
Council's Diversity and Equality in Employment Policy to advertise all posts internally and
externally.
When it is considered that redeployment is an appropriate course of action, the Human
Resource Service must be consulted.
Requirement to work during the period of notice
Unless an employee has been dismissed on the grounds of gross misconduct without
notice, the employee must be paid for the whole of the period of notice, irrespective of
whether the decision has been made for them to work this period or not.
Informing interested parties of the decision
Managers should only inform third parties of the outcome of a capability or disciplinary
hearing if there is a legitimate reason for them knowing the outcome (such as a grievance
or a complaint from a member of the public). They must also be aware of whether an
appeal is likely to be made before disclosing this information. It is strongly recommended
that advice on this matter is sought from the Human Resource Service and/or the Press
Office before making such disclosures.
THE APPEAL HEARING
Preparing for the hearing
An employee wishing to appeal is required to notify the Human Resource Service who will
then inform the appropriate person in order that the necessary arrangements for the appeal
hearing can be made.
10
Revised April 2010
The person making the arrangements should ensure that the management and the
appellant statements of case are sent out on the same day to ensure that neither party can
build its case upon the submission of the other party.
If management witnesses gave evidence in person at the original hearing (and their
evidence made a significant contribution) they may also attend the appeal hearing. If the
employee wishes to bring witnesses who did not attend the original hearing, this should be
allowed; provided that their identity is properly disclosed in advance.
Preparing and presenting the case
Chief Officers should consider carefully who should present the management case at
appeal and may wish to consult the Human Resource Service on this matter. Normally, the
person chosen will be the Nominated Officer who heard the original case. An appropriate
member of the Human Resource Service may be available to assist the presenting officer in
the preparation of the case and may also be available to accompany the presenting officer
at the appeal hearing if required. Where a member of the Human Resource Service
assists, normally a different officer from the Human Resource Service will advise the appeal
body.
The employees grounds for appeal
The employees case must be based solely on the grounds of appeal disclosed in their
letter of appeal. The appeal body should disregard any matter not directly related to the
original grounds of appeal.
Conduct of the appeal hearing
The guidance given on conduct in capability and disciplinary hearings above applies
equally to appeals.
Dealing with appeals during employees probationary period
Where an employee has less than twelve months continuous service with the Council any
appeal against dismissal can be heard by the employees Director, unless the Director took
the original decision to dismiss. Otherwise the appeal must be heard by another Director.
Late witnesses or documentation
Requests to produce new witnesses or documentation during the hearing or the appeal
should normally be declined. If, for some very good reason, witness or documentation is
allowed, great care should be exercised when considering the testimony.
Coming to a decision
Situations where an appeal might succeed can be summarised as:a) where new facts, which were not known at the time of the original decision,
emerge which clearly shift the balance of probabilities in favour of the employee;
or,
b) where the original decision appears in all the circumstances of the case to have
been unfair.
If an admissible statement is made by either party during the hearing that raises genuine
doubts about the facts of the case, the appeal body should consider adjourning the hearing
to allow the other party to investigate the new claims.
11
Revised April 2010
Reinstatement and re-engagement

The term reinstatement should be used only in circumstances where the employee is to be
taken back into exactly the same employment and on the same terms and conditions of
employment as before dismissal with no break in service. At worst, a final warning could be
imposed here in lieu of dismissal.
The term re-engagement should be used where it is intended that the employee will suffer
a detriment such as demotion, change of place of employment or break in service and this
should be as an alternative to dismissal.
DEBRIEFING AND SUPPORT
After an initial hearing or an appeal hearing it is good practice for management to debrief.
The topics covered in the debriefing will depend upon the type of case and its complexity
but the following checklist should be considered: Arrangements should be made to ensure that all relevant staff are clear about the
outcome of the hearing and the steps which need to be taken in the near-, midand long-term.
The Investigating Officer or managements witnesses may require feedback
concerning the presentation of the case or evidence.
In dismissal cases, Finance must be informed as a matter of urgency so that
salary payments can be ceased. It is important to notify the correct reason for
leaving i.e. gross misconduct rather than using terms such as capability or
dismissal.
REVIEW OF CAUTIONS AND WARNINGS
Monitoring the employee
Where the employee has received a caution or a warning the line manager will be
responsible for monitoring and documenting their performance or conduct against agreed
standards or targets, to see whether the necessary improvement is being achieved and to
check that any support that has been promised is actually being delivered.
Life of a caution
The normal life of a formal caution or formal warning is one year. The normal life of a final
caution or final warning is two years. Time starts to run from the date of issue of the caution
or warning (i.e. the hearing date). However, the procedure allows for an extension of the
caution or warning if an employee is absent from work for a prolonged period for reasons
other than normal leave. In such cases, the Nominated Officer may extend the end date of
the caution or warning by a like amount and must confirm the fact to the employee in
writing.
A caution or warning will normally be disregarded after its end date unless a new capability
or disciplinary complaint originates before that date. If such a situation arises, the ending of
the life of the caution or warning will be delayed until the conclusion of any capability or
disciplinary hearing which might ensue. The employee should be informed of this in writing.
Expired cautions and warnings
An expired warning or caution should remain on the file as it may be relevant when
preparing references for other employment. Regardless of the age of any warning which
may exist, particular care must be taken to ensure that prospective new employers in the
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field of education or social care are informed if there are serious concerns about the
employee in respect of pupils or clients.
Lifting monitoring arrangements
There are some cases, particularly in capability situations, where the manager may decide
to discontinue close monitoring of performance before the formal end of the caution period
in view of the fact that good progress has been made. If this is done, the employee should
be informed in writing of this fact but should also be informed that the caution will not expire
until the date previously notified.
SPECIAL SITUATIONS
Cases involving alcohol or drugs
Where a manager feels that an alcohol or drugs problem is involved in a capability or
discipline case they should consult the Human Resource Service before taking further
action.
Whilst alcohol and drugs problems are correctly recognised as medical problems requiring
treatment and support, where this course of action does not achieve the desired result it will
be necessary to invoke the capability and discipline procedure in order to seek an
improvement.
Where serious capability or conduct problems are involved it may be necessary to invoke
the capability and disciplinary procedures immediately. In more minor cases, the outcome
may be to defer a decision or action pending the employee undergoing appropriate
treatment. However, where gross misconduct is involved it will not normally be necessary to
defer a decision.
If an underlying alcohol or drug problem is suspected, but denied by the employee, the
capability or disciplinary process is unaffected.
CONDITIONS OF SERVICE ISSUES
Attendance at a hearing or interview
Where an employee is invited to attend a disciplinary or capability hearing or an
investigatory interview they are entitled to receive payment for the period involved in
attending the hearing or interview and any excess travel incurred travelling to and from it.
Where the hearing or interview is convened outside the employee's normal working hours
the employee is entitled to additional payment or time off in lieu as well as the
reimbursement of any additional traveling expenses incurred.
Payment during periods of suspension

During a period of suspension the employee should receive normal pay as defined by
their conditions of service. If an employee is on less than full pay then that level of pay will
continue through the suspension.
A period of suspension will not count towards the calculation of an honorarium under the
locally agreed conditions of service relating to acting-up.
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Payment of a higher grade, rate of pay or number of hours than an employees normal
contract of employment provides for, will only be made when on the day immediately prior
to suspension the employee had been receiving the payment for a minimum period of three
calendar months.
Annual leave during periods of suspension
During a period of suspension, an employee is expected to be available to take part in the
investigation at any reasonable time as required by management. Prior leave commitments
will need to be observed. Where it is anticipated that the period of suspension may be
prolonged, non-conflicting leave requests should be approved and encouraged. In
circumstances where the granting of leave will unnecessarily prolong the resolution of a
case it should be refused. All annual leave taken during suspension will count against the
employees entitlement.
Where an employee on suspension is "unavailable" during their normal working hours or is
on unauthorised leave, the period in question should be counted against their annual leave
entitlement and disciplinary action should be considered.
Where prolonged suspension is involved, or where the end of the leave year is
approaching, the employee should be encouraged to take annual leave, depending on the
stage of the investigation.
Sick leave during periods of suspension
Where an employee who has been suspended goes on sick leave they are subject to the
normal rules relating to a period of sickness absence. Although they may claim that it is the
suspension itself that has caused the sickness, the time certified as sickness absence
counts against their allowance. This means that on occasions the employee will drop to half
pay or even no pay during a period of suspension where the length of service is relatively
short or where there have been previous periods of absence.
Suspended employees who are in receipt of an essential car user allowance and who
subsequently go on sick leave should have their lump sum withdrawn as set out in
Paragraph 6.3 of the Green Book. Under this provision the lump sum is paid in full for the
remainder of the first month of absence and for the following three months. For the next
three months it is reduced to 50% and, following that, no payment is made.
Entitlement to sick pay arising from disciplinary matters
Where the Occupational Health Physician certifies that an employees absence on sick
leave is as a direct result of their misconduct, including anxiety about the consequences of
their actions, consideration should be given to recovering moneys paid in relation to
occupational sick pay (and to suspending future payments) at the point that disciplinary
action is taken.
Applications for employment during periods of suspension
Applications from employees suspended from duty prior to a hearing should be treated in
exactly the same way as if the employee was at work. This includes the giving or receiving
of references, as appropriate.
Return to work after maternity leave
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An employee whose dismissal prevents her from completing the necessary three month
period of employment following maternity leave will be required to refund moneys paid in
respect of occupational maternity pay. Any notice period will count towards the three month
period of employment.
Reinstatement and calculation of back-pay
When an employee is reinstated (rather than re-engaged) on appeal, the following should
be considered in the calculation of retrospective payments:
a) if employee received any sickness related benefits from the DSS then, for the
period in question, they should be regarded as having been on sick leave and be
paid in accordance with the sick pay scheme;
b) if the employee obtained other employment during the period between the date of
dismissal and the decision to reinstate, details should be obtained from the
employee and deducted from the salary adjustment on the basis that the Council
only needs to make good any overall loss of earnings that has occurred. The
alternative would be to make no payment for any period when the employee was
in other paid employment. However, any such period will not be treated as a
break in continuous service.
Reinstatement and the carry over of annual leave entitlement or lieu days
Suspension is not considered to be an exceptional circumstance warranting the carry over
of outstanding leave between leave years. However, as with sickness or maternity leave,
should an employee return from suspension shortly before the end of the leave year and
be prevented from taking all or part of outstanding leave due to the demands of the service,
then that part can be carried forward and taken within a reasonable period.
In the case of lieu days e.g. where an employee has worked an additional shift prior to
suspension and is due a day off in lieu, entitlement to such days is not time limited and
therefore unaffected by the restrictions on carry over placed on annual leave.
Payments on dismissal
Where the dismissal is the consequence of the accrual of a number of warnings, except in
cases of theft or fraud, the question of withholding payments will not arise, and all
contractual entitlements are honoured. In the case of outstanding leave or lieu time,
employees should be required to take the time off during the notice period and only when
the notice period is insufficient to allow this to happen should payments in lieu be made. In
many cases following their dismissal, employees will not be required to work their notice
and will spend the period on "garden leave" during which any outstanding leave or lieu
days will be taken.
Where dismissal is as a consequence of gross misconduct, the question of withholding
payments may arise. Effectively, unless the written agreement of the employee has been
obtained, in the majority of cases this will only allow for the withholding of expenses
payments. It also allows for the non-payment of outstanding contractual leave entitlement,
although statutory leave entitlement must be paid.
Restitution in cases of fraud or theft
Where an employee has been dismissed as a consequence of an act of fraud or theft,
directorates may wish to consider whether it is appropriate to deduct the value of the
moneys and goods involved from any outstanding payments due to the employee with the
employee's agreement. Small sums can be recovered in this way, or by raising an invoice.
Where substantial sums are involved, the matter should be referred to Internal Audit to
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consider whether it is appropriate to recover the moneys from the employees frozen
pension contributions under the Occupational Pensions Schemes (Assignments,
Forfeiture, Bankruptcy, etc.) Regulations 1997.
Capability cases - other sanctions available
Where an employee's work performance is unsatisfactory, serious consideration should be
given to adopting some or all of the following, as appropriate.
Annual increments - withhold annual increments.
Career grade - halt progression through the grade.
Sick notes - insist on their production for every sickness absence in cases where
there is excessive use of self-certification.
Occupational sick pay - withhold payment if the employee breaches any of the
qualifying conditions.
In most capability situations, it would be inconsistent to allow annual increments or
progression within a career grade. Furthermore, if incremental or career grade progression
is later reinstated, it should be from the current date and should not be back-dated.
Discipline cases - effects on pay and future promotion
Where disciplinary action has been taken against an employee, this will not normally have
implications for increments or progression through a career grade, although there may be
circumstances where such action can be reasonably justified. Directorates are advised to
consult HR Services where such action is being contemplated.
There have been cases where, having been issued with a formal warning or final warning,
an employee has applied for another post (sometimes, even a promotion post) during the
life of the warning. This is a difficult issue on which to issue specific guidance. The
Appointing Officer is entitled to consider the employee's disciplinary record in deciding
whether to interview or to make an appointment. There will be occasions when, because of
the nature of the post, e.g. infrequent supervision, it will be appropriate to expect an
employee to prove themselves trustworthy during the life of a warning before being
considered for such a post.
SAMPLE LETTERS AND DOCUMENTS
The wording and content of letters are extremely important. Disciplinary decisions and the
employee's rights in such circumstances must be conveyed in an accurate and
unambiguous manner. For this reason the procedure sets out the essential elements to be
included in all warning and dismissal letters. Nominated Officers should always refer to the
procedure when drafting letters. As a further aid, several example letters and documents
are attached.
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Letter to confirm agreed action plan pre formal capability or disciplinary action being
taken
PERSONAL & CONFIDENTIAL
Dear M_ ________,
Further to our discussion earlier today I have set out below the main points upon which we
agreed:1
All telephone calls should be answered with the minimum of delay and the Council's
telephone performance standards (copy attached) should be achieved.
All telephone calls should be answered with a clear and cheerful voice and the
following words should be used "Good morning (or afternoon), XXX Directorate, John
Smith speaking, how can I help you?"
If you are unable to deal with the caller yourself you must ensure that the call is
passed to a person who is able to deal with it or, if that is not possible, you must offer
to take a message for that person.
If you take a message from a telephone caller you must ensure that it is accurate and
legible and that it is placed prominently on the recipient's desk without delay.
At the earliest opportunity, I will arrange for you to receive telephone training in order
that you will be able to use the appropriate facilities on the new system.
You were advised that this letter would be sent to you. As explained, these are informal
targets, outside of the formal Capability [or Disciplinary, if appropriate] Procedure.
However, if matters do not improve, the formal procedure will be instigated.
Signed
[manager] _
Signed
[employee]
Date
_______________________
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Letter to confirm agreed action pre disciplinary

Dear M_ ________,
Further to our meeting earlier today to discuss your failure to complete your job cards
correctly you informed me that this had been common practice for several years and had,
in the past, been condoned by certain members of the management team.
I have looked into this claim and find that it was indeed the case. However, I am writing to
confirm that you must, from now onwards, ensure that you complete your job cards on
completion of each job and ensure that they are signed by the customer before you leave
the premises.
I have also seen your colleagues and have written to them along similar lines so that there
can be no misunderstanding in the future.
If you experience any problems in meeting these new requirements you should contact me
at the earliest opportunity.
Yours sincerely,
[Manager]
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Letter re notification of investigation

Dear M_ ________,
I have been informed by M_ ________, the ________ of an incident that took place on
[date] involving yourself and M_ ________.
An investigation will be carried out into this incident by M_ ________ as soon as possible
and I enclose a copy of a document entitled Information for Employees which sets out
your rights and duties under the Councils Capability and Disciplinary Procedures and also
gives information which you may find useful.
Yours sincerely,
[Nominated Officer]
cc Human Resource Service
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Example 1: Outcome of investigation/invite to disciplinary hearing

Dear M_ ________,
I have been informed by M_ ________, the ________ of an incident that took place on
[date] involving yourself and M_ ________. An investigation has been carried out into this
incident by M_ ________and a copy of the report is appended to this letter. The
investigation report indicates that M_ ________spoke to you about your failure to carry out
your duties as previously instructed and in response you:a) suggested that the work was allocated to you because it was particularly arduous,
b) used foul and abusive language when told again to carry out the work without delay;
and,
c) subsequently left the workplace without authorisation, at 3:40 p.m. and did not return to
work that day.
I write to inform you that a disciplinary hearing is to be held and you should attend my office
on [date] at [time] to discuss the above allegations in accordance with the Disciplinary
Procedure (copy enclosed). Also enclosed is a document entitled PROCEDURES FOR
HEARINGS AND APPEALS.
You are advised that the possible consequences arising from this hearing might be: [eg a
written warning, a final written warning, dismissal].
[Include the following paragraph if appropriate]
You are advised that if the allegation(s) is (are) found to be proven, and taking into account
the Final Written Warning you received on [Enter date], your employment may be
terminated.
You are advised that if the allegation(s) is (are) found to be proven, it will be considered
Gross Misconduct under the Councils Capability and Disciplinary Procedure and your
employment may be summarily terminated without notice.
You have the right to be represented or accompanied by a trade union official or a work
colleague.
Please let me know the identity of the trade union official or work colleague who will be
representing or accompanying you and confirm that you will be attending the hearing. You
should note that if you fail to attend without notice a decision will be made in your absence.
Yours sincerely,
[Nominated Officer]
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Example letter re outcome of disciplinary hearing (written warning)

Dear M_ ________,
I am writing in connection with the disciplinary hearing held in my office on [date], at which
you were represented by M_ ________ [position]. Also present were [list those present,
such as the Investigating Officer, any witnesses and the HR Advisor and state the functions
of those present].
I confirm that, at the hearing, you were issued with a formal warning under the terms of the
Council's disciplinary procedure. You will recall that the hearing was convened to discuss
your persistent bad time-keeping in recent months and in particular your late arrival for work
on 17 and 19 October 199_ when you were 30 minutes and 50 minutes late respectively.
These incidents followed previous occasions when you arrived late for work and for which
you were given verbal warnings by M_ ________, the last such occasion being
29 September 199_.
You and your representative were afforded an opportunity to explain these incidents and
you will recall that we discussed your personal circumstances and the availability of public
transport in your area. However, as I stated at the hearing, I consider your explanation to be
unsatisfactory because_________ and therefore confirm the warning given on [date].
Please note that should there be any recurrence of your bad time-keeping within the next
12 months, or any other misdemeanour by yourself within this period, you will be liable to
further, and perhaps more serious, disciplinary action which may ultimately lead to
dismissal. If, however, there is a marked and sustained improvement in your time-keeping
and your conduct is in all other respects satisfactory, then this warning will become
ineffective on [date - one year from the date of this letter] and will be disregarded for the
purposes of the disciplinary procedure. However, you should note that the Council has a
duty to mention relevant capability and disciplinary warnings in references.
A copy of this warning will be placed in your personal file in the directorate together with
any written comments or observations that you may wish to make.
You have a right of appeal against this warning and, should you wish to do so, your written
notice of intention to appeal, including your grounds of appeal in detail, must be
received by the Corporate Services Department at County Hall, Morpeth, Northumberland,
NE61 2EF by [date]. Your appeal will be heard by M_ ________, the ___________. [or by
the Appeal Committee; as appropriate]
[If applicable, add:- As you were represented by M_ ________, a copy of this letter has
been sent to your representative in accordance with the disciplinary procedure.]
Yours sincerely,
[Nominated Officer]
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Example letter re outcome of disciplinary hearing (final written warning)

Dear M_ ________,
I am writing in connection with the disciplinary hearing held in my office on [date], at which
you were represented by M_ ________ [position]. Also present were [list those present,
such as the Investigating Officer, any witnesses and the HR Advisor and state the functions
of those present].
I confirm that, at the hearing, you were issued with a final warning under the terms of the
Council's disciplinary procedure.
You will recall that at the hearing you were questioned about frequent lateness for work.
You were informed that on 1, 3 and 7 March you had been observed by
M_ ________entering the office 15 minutes late although you had not sought permission to
arrive late.
In reply, you suggested that you had been unable to catch your usual bus and had needed
to collect materials from the storeroom on your way to the office. I confirm however that
your explanation was unsatisfactory because ________ and that I consider your action in
arriving late for work in such circumstances on three separate occasions to be serious
dereliction of duty.
I must advise you that any further misconduct will render you liable to more serious
disciplinary action including the possibility of dismissal. However, if your conduct is
satisfactory this final warning will be disregarded for the purposes of the disciplinary
procedure after [date - two years from the date of this letter]. However, you should note that
the Council has a duty to mention relevant capability and disciplinary warnings in
references.
A copy of this warning will be placed in your personal file in the directorate together with
any written comments or observations which you may wish to make,
You have a right of appeal against this warning and, should you wish to do so, your written
notice of intention to appeal, including your grounds of appeal in detail, must be
Yours sincerely,
Nominated Officer]
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Example letter re notification of suspension

Dear M_ ________,
I refer to the incident that occurred on [date] at [establishment] involving yourself and
, a [employee / member of the public / client].
I am informed by M_ ________, the _____________, that you were seen by two other
employees to have struck ________ across the face during _____________.
In view of this report, I confirm that you are suspended from duty without loss of
remuneration until further notice whilst an investigation of this incident is carried out. This
suspension is not a disciplinary act. It is entirely without prejudice to the outcome of the
investigation but it is considered [necessary as gross misconduct (or gross incapability) is
suspected AND/OR that your presence at work could impede the investigation].
Whilst on suspension you should not visit your place of work and should not contact any
employees [or clients of the establishment]. However, your representative will be given all
reasonable facilities to conduct investigations on your behalf, including access to Council
employees who are potential witnesses should any case be brought against you. In this
regard, please ask your representative to contact M_ ________ [appropriate senior officer]
to make the necessary arrangements.
M_ ________ [appropriate senior officer] will keep you informed of the general progress of
the investigations and I will write to you again once the investigation has been completed.
In addition, the Welfare Officer is available to give you welfare support and counselling and
can be contacted on (01670) 533709 but please note that the Welfare Officer cannot and
will not become involved in or represent you in any disciplinary matters.
Enclosed is a copy of a document entitled Information for Employees which sets out
your rights and duties under the Councils Capability and Disciplinary Procedures and also
gives information which you may find useful.
Yours sincerely,
[Nominated Officer]
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Example letter re notification of dismissal

Dear M_ ________,
I refer to the disciplinary hearing which you attended in my office on [date] with
M_ ________, [position]. Also present were [list those present, such as the Investigating
Officer, any witnesses and the HR Advisor and state the functions of those present].
You will recall that we discussed your continued lateness for work, your unacceptable
behaviour towards your staff, and your failure to compete your flexi time sheet promptly and
correctly. You were reminded that although you had received a final written warning on
[date] concerning these matters there had been no improvement. In response you claimed
that there had been mitigating personal circumstances that had made it difficult for you to
concentrate on your work during the past six months.
I considered the circumstances that you drew to my attention but was unable to accept
them in mitigation in view of the previous record of disciplinary warnings and the support
that you have received from the Directorate Management Team.
I write to confirm my decision that you are dismissed on grounds of misconduct and hereby
give you ___ weeks' notice of your dismissal. The termination of your services will therefore
take effect on [date]. As the Council has reserved to itself the right not to allow employees
to return to the workplace during the notice period, you should not attend your place of
work between now and the expiry of your notice except to remove any personal belongings
by prior arrangement with M [appropriate senior officer].
You have a right of appeal against your dismissal and, should you wish to do so, your
written notice of intention to appeal, including your grounds of appeal in detail, must be
[Check that the employee has one years continuous service before inserting the following:In addition, you have the right under current employment legislation to present a claim of
unfair dismissal to an Employment Tribunal. If you wish to exercise this right you must do so
within three months from the date of your dismissal and, at the same time, you should ask
that it be held in abeyance pending the exhaustion of your rights under the Council's
procedures.]
Yours sincerely,
[Nominated Officer]
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Example letter re dismissal on the grounds of gross misconduct

Dear M_ ________,
I refer to the disciplinary hearing that you attended in my office on [date] with
M_ ________, [position]. Also present were [list those present, such as the Investigating
Officer, any witnesses and the HR Advisor and state the functions of those present].
The purpose of the hearing was to discuss the incident on [date] when you were seen by
M_ ________, your line manager, taking money from the petty cash fund and placing it in
your handbag. M_ ________subsequently checked the petty cash and found that 10 in
the form of two 5 notes had been removed.
At the hearing you admitted taking the money but claimed that you were borrowing the
money for shopping purposes and intended to replace it the next day. I indicated that I was
unable to accept your explanation and that I considered your action to constitute gross
misconduct.
In the circumstances I write to confirm my decision that you are to be dismissed on the
grounds of gross misconduct with effect from today, [date]
[Check that the employee has one years continuous service before inserting the following:In addition, you have the right under current employment legislation to present a claim of
unfair dismissal to an Employment Tribunal. If you wish to exercise this right you must do so
within three months from the date of your dismissal and, at the same time, you should ask
procedures.]
Yours sincerely,
[Nominated Officer]
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Example letter re invite to capability hearing

Dear M_ ________,
I have been informed by M_ ________, that you appear to be experiencing difficulty in
dealing with certain aspects of your work. According to M_ ________, he has spoken to
you on a number of occasions about the following matters:(a)
(b)
(c)
repeated inaccuracies in completing forms,

failing to send the completed forms to clients on time; and,
failure to back up your data on the computer each day.
I write to inform you that, in view of these complaints, you should attend my office on [date]
at [time] for a hearing to be held under the Capability Procedure (a copy of which is
enclosed). Also enclosed is a document entitled PROCEDURES FOR HEARINGS AND
APPEALS. The purpose of the hearing will be to establish whether or not there is a lack of
capability on your part and, if so, how to proceed.
You are advised that the possible consequences arising from this hearing might be: [eg a
written caution, a final caution, dismissal].
You are advised that if the allegation(s) is (are) found to be proven, and taking into account
the Final Caution you received on [Enter date], your employment may be terminated.
You are advised that if the allegation(s) is (are) found to be proven, it will be considered
Gross Incapability under the Councils Capability and Disciplinary Procedure and your
employment may be summarily terminated without notice.
colleague.
[If applicable, add:- As you have indicated that you are to be represented by M_ ________,
a copy of this letter has been sent to your representative in accordance with the capability
procedure.]
Yours sincerely,
[Nominated Officer]
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Example letter re outcome of capability hearing no formal action being taken

Dear M_ ________,
I am writing in connection with the capability hearing held in my office on [date] in the
presence of M_ ________ [position]. Also present were [list those present, such as the
Investigating Officer, any witnesses and the HR Advisor and state the functions of those
present].
At that hearing, I was satisfied that you had been experiencing difficulty in dealing with
certain aspects of your work. The areas of concern were:a) repeated inaccuracies in completing forms,
b) failing to send the completed forms to clients on time; and,
c) failure to back up your data on the computer each day.
However, you pointed out that you had received no training on how to complete the forms
and that problems in completing them caused delays which, in turn, caused you to fail to
send the forms to clients on time. You also pointed out that you had not been shown how to
back up your data on the computer.
I am satisfied that some training did take place on both these matters but that it was not
sufficient in the circumstances. Therefore, I write to confirm that I am arranging for you to
be given further training, for the standard of work expected of you to be clearly set out in
writing to you by M and for your work to be monitored for a period of four weeks thereafter.
In order that I can assess the progress made, you should attend a follow-up hearing held
under the capability procedure in my office on [date] at [time]. The purpose of the follow-up
hearing will be to establish whether the required training has been given, whether the
standards required of you have been given to you in writing and whether there has been an
acceptable improvement in your performance. You should be aware that, if sufficient
progress has not been made, further formal action will be taken under the capability
procedure which could ultimately lead to your dismissal.
colleague.
[If applicable, add:- As you have indicated that you are to be represented by M_ ________,
a copy of this letter has been sent to your representative in accordance with the capability
procedure.]
Yours sincerely,
[Nominated Officer]
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Example letter re outcome of capability hearing formal caution issued

Dear M_ ________,
I am writing in connection with the follow-up hearing held under the capability procedure in
my office on [date] in the presence of M_ ________ [position]. Also present were [list those
present, such as the Investigating Officer, any witnesses and the HR Advisor and state the
functions of those present].
At that hearing, I was satisfied that the required training had been given to you and that the
standards expected of you had been given to you in writing by M_ ________. I was also
satisfied that you had made considerable progress in meeting the standards set down for
backing up your data on the computer each day.
However, you still seem to be experiencing difficulty in completing the forms and this is still
causing some delays in sending the forms to clients. Therefore, I write to confirm that I am
issuing you with a formal caution. I am also arranging for you to be given further training on
completing the forms and for your work to be monitored for a further period of four weeks
thereafter.
In order that I can assess the progress made, you should attend a further capability hearing
in my office on [date] at [time]. You have the right to be accompanied at this hearing by your
trade union representative or a work colleague. The purpose of the further hearing will be to
establish whether the required training has been given and whether there has been an
acceptable improvement in your performance. You should be aware that, if sufficient
progress has not been made, further formal action will be taken under the capability
procedure which could ultimately lead to your dismissal. However, if your performance is
maintained at a satisfactory level, this formal caution will be disregarded for the purposes of
the capability procedure after [date - one year from the date of this letter]. However, you
should note that the Council has a duty to mention relevant capability and disciplinary
warnings in references.
A copy of this formal caution will be placed in your personal file in the directorate together
with any written comments or observations which you may wish to make.
You have a right of appeal against this formal caution and, should you wish to do so, your
been sent to your representative in accordance with the capability procedure.]
Yours sincerely,
[Nominated Officer]
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Example letter re outcome of second capability hearing final caution issued

Dear M_ ________,
I am writing in connection with the second follow-up hearing held under the capability
procedure in my office on [date] in the presence of M_ ________ [position]. Also present
were [list those present, such as the Investigating Officer, any witnesses and the HR
Advisor and state the functions of those present].
At that hearing, I was satisfied that the further training had been given to you but that you
still seem to be experiencing difficulty in completing the forms.
Therefore, I write to confirm that I am arranging for you to be given a checklist for
completing those forms and for your work to be closely monitored for a further period of
four weeks thereafter. I also confirm that you have been given a final caution. This is your
final opportunity to demonstrate improvement and, should your performance not meet the
standards required of you within that period and be maintained at that level thereafter you
may be dismissed on grounds of capability. However, if your performance is maintained at a
satisfactory level, this final caution will be disregarded for the purposes of the capability
procedure after [date - two years from the date of this letter]. However, you should note that
the Council has a duty to mention relevant capability and disciplinary warnings in
references.
A copy of this final caution will be placed in your personal file in the directorate together
with any written comments or observations which you may wish to make,
In order that I can assess the progress made, you should attend a further capability hearing
in my office on [date] at [time]. You have the right to be accompanied at this hearing by your
trade union representative or a work colleague. The purpose of the further hearing will be to
establish whether there has been an acceptable improvement in your performance.
You have a right of appeal against this final caution and, should you wish to do so, your
Yours sincerely,
[Nominated Officer]
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Example letter re outcome of capability hearing resulting in dismissal

Dear M_ ________,
I am writing in connection with the hearing held under the capability procedure in my office
on [date] in the presence of M_ ________, your representative. Also present were [list
those present, such as the Investigating Officer, any witnesses and the HR Advisor and
state the functions of those present].
At that hearing, I was satisfied that once again you have been experiencing difficulty in
completing the forms and have, in consequence delayed sending them to clients on time.
You will recall that you have been given a great deal of training and assistance to help you
perform this task but I have to conclude that you are simply not capable of performing it to
the standard required. You will also recall that I have, in the past, reviewed the standard to
see if it is reasonable and you were informed that I could see no reason to alter the
standard.
Bearing in mind that you are subject to a current final caution concerning your performance
I have no alternative but to dismiss you from your current post. As you were made aware at
the hearing, I have attempted to find suitable alternative employment for you within [state
where] but without success. Therefore, I write to confirm my decision that you are
dismissed on grounds of capability and hereby give you ___ weeks' notice of your
dismissal. The termination of your services will therefore take effect on [date]. However, I
shall continue to seek suitable alternative employment for you up to this date in accordance
with the Councils Alternative Employment Policy, a copy of which is enclosed for your
information.
[Check that the employee has one years continuous service before inserting this
paragraph] In addition, you have the right under current employment legislation to present a
claim of unfair dismissal to an Employment Tribunal. If you wish to exercise this right you
must do so within three months of your dismissal and, at the same time, you should ask
procedures.
Yours sincerely,
[Nominated Officer]
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Example letter re request for further information for grounds of appeal

Dear M_ ________,
Further to your letter dated ______ in which you indicated your intention to appeal, I have
to point out that your letter does not set out the detailed grounds upon which you wish to
appeal. That being the case, I shall not be able to process your appeal until such time as
you send me, in writing, details of your grounds of appeal.
Please note that, if you do not supply me with your grounds of appeal in detail in writing by
____ [allow seven calendar days from the date of this letter], I shall assume that you have
withdrawn your appeal.
Yours sincerely,
[person arranging the appeal]
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Example letter re invite to appeal hearing

Dear M_ ________,
Further to your letter dated ______ in which you indicated your intention to appeal, I have
now made arrangements to have your appeal heard by ______ on ______ at ____.
You should let me have your statement of case, in writing, together with copies of any
documents you intend to use in evidence and the identities of any witnesses you intend to
call by [date, not less than 10 days before the appeal hearing is to be held]. Your attention
is drawn to the following important matters:
You are entitled to be represented or accompanied at the appeal hearing by your trade
union representative or a work colleague.
When preparing and presenting your appeal, you must restrict your case to the grounds
of appeal which you notified to me in your letter.
If your full statement of case is not received by me by the deadline given above, you will
not be entitled to receive the management statement of case in advance of the hearing.
Any assertion made in the written or oral presentation of your case must be supported
by evidence in person or in writing.
You will not be able to produce a document in support of your case at the hearing
unless you have provided me with a copy of it in advance as requested above.
Similarly, you will not be allowed to call a witness in support of your case unless that
persons identity has been disclosed to me in advance as requested above.
Yours sincerely,
[person arranging the appeal]
32
Revised April 2010
Example letter re acknowledgement of allegation

Dear M_ ________,
Allegation against [name of officer]
I understand that you have made an allegation of impropriety against [name of officer] in
connection with their role as an officer of the Council.
The Council takes such allegations very seriously and always investigates them most
carefully. In order that we may give your complaint the fullest consideration, I would be
grateful if you would provide me with written details within seven days of the date of this
letter, so that a proper investigation can be carried out. A stamped addressed envelope is
enclosed for your reply.
If I do not hear from you within that time, then I shall presume that you do not wish the
complaint to remain standing and I will not investigate the matter further.
Yours sincerely,
Human Resource Service
33
Revised April 2010
Example letter to agree sign off of witness statement

Dear M_ ________,
I am writing further to our meeting on [date] and enclose two copies of [my summary of
our discussion OR your witness statement] which I would like you to read carefully.
If you agree with what is said in the document, please sign and date both copies and return
one copy to me in the enclosed stamped, self-addressed envelope by [date].
If you do not agree with what is said in the document, please amend both copies as you
see fit and return one copy to me in the enclosed stamped, self-addressed envelope by
[date].
Please note that, if your reply is not received by the stated date, the document will be
assumed to be correct and a copy of this letter will be produced as evidence that you have
been informed to that effect.
Yours sincerely,
[Investigating Officer]
cc Investigation file
34
Revised April 2010

Capability and Disciplinary Procedure - Guidance Notes

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Capability and Disciplinary Procedure - Guidance Notes

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NORTHUMBERLAND COUNTY COUNCIL

GUIDANCE NOTES ON THE OPERATION OF

PURPOSE OF THE GUIDANCE............................................................................................1

Northumberland County Council

Sample letters and documents...............................................................................................1

Northumberland County Council

NORTHUMBERLAND COUNTY COUNCIL

Northumberland County Council

Revised April 2010

Advice and assistance for managers

deciding upon the scope of an investigation,

Northumberland County Council

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to ensure that the interests of the Council are protected.

Northumberland County Council

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RESPONSIBILITIES OF THE NOMINATED OFFICER

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opinions on matters of professional competence and expertise; or

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Cases involving fraud or falsifying information

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Reinstatement and re-engagement

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Payment during periods of suspension

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Letter to confirm agreed action pre disciplinary

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Letter re notification of investigation

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Example 1: Outcome of investigation/invite to disciplinary hearing

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Example letter re outcome of disciplinary hearing (written warning)

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Example letter re outcome of disciplinary hearing (final written warning)

Northumberland County Council

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