Dismissal on grounds of illegality or some other substantial reason
Guidelines
1. Application and scope
1.1 The University has in place procedures for dealing with the termination of an individual's employment due to ill-health, redundancy, capability or misconduct. There may, however, be circumstances in which the termination of employment is contemplated for another reason. This may arise, for example, when the employee is debarred from working due to a statutory restriction (e.g. immigration regulations) or it is considered that there is another reason which would justify the dismissal of the employee (e.g. an employee appointed temporarily to cover for sabbatical or maternity leave). This procedure should be used for cases which do not fall readily under one of the above procedures but where termination of employment may, nevertheless, be appropriate. As it is not possible to identify all circumstances which may give rise to termination under this procedure guidance should be sought from a member of HR.
1.2 Movement between procedures - If after commencing this procedure, the Head of Department in conjunction with an HR manager, considers that the case in question should have been dealt with under an alternative procedure the case may be transferred to a different procedure. The employee concerned may also make representations regarding the procedure to be followed. In cases of disagreement the Director of HR will determine the appropriate procedure to be followed and there shall be no appeal against that decision. Those involved will be informed of the reasons for the movement between procedures.
1.3 There may be occasions when as a consequence of information obtained under one procedure it is appropriate to initiate action under an alternative procedure.
1.4 Investigations that have been undertaken in one procedure may be used as and where appropriate to inform another procedure.
2. General principles
The following principles will apply to the application of this procedure:
2.1 Informal resolution - Where procedures and circumstances allow an opportunity for informal resolution this should be considered at as early a stage as possible. This will require the willingness of those involved but should be considered before moving to the formal procedure.
2.2 Suspension - At any stage during this procedure, if appropriate, an employee may be suspended. Suspension is not a penalty and is not an indication of culpability, there is therefore a presumption that suspension will be on full pay.
2.2.1 Any suspension will be considered seriously given the individual circumstances of a case. It will usually be considered in the following situations:
- when it would be against the law for the employee to continue to attend for work in his/her capacity
- to provide the opportunity for a full investigation to be undertaken
- when an employee is considered to be a risk to themselves or others
2.2.2 A manager authorised to suspend an employee may consider alternative arrangements to suspension to allow the employee to remain at work during any investigation, for example, temporary redeployment, additional supervision or the restriction of duties, as is deemed suitable in the circumstances.
2.2.3 The decision to suspend will be taken by a Head of Department or a member of the University Executive Board after consultation with an HR Manager.
2.2.4 In all cases, the suspension will be confirmed in writing, no more than five working days after the suspension. The letter will detail all the relevant circumstances relating to the suspension. Regular contact should be made with the employee during any period of suspension to provide updates on any developments and there should be an individual manager identified as a contact point.
2.2.5 The reason and arrangements for the suspension will be reviewed periodically (every four weeks) by the relevant manager referred to in paragraph 2.2.3 in consultation with HR.
2.2.6 During any period of suspension, the employee will be required to cooperate fully with any investigation and to be available to meet during normal office hours. while suspended, the employee will not be entitled to access any University premises unless directed to do so, or to use the University's internet/intranet facility or to engage in his or her normal day to day duties unless agreed in advance.
2.2.7 Any request to attend the workplace during suspension to access information required in preparation for a meeting or hearing will not be unreasonably refused but the employee will be accompanied.
2.2.8 If the employee becomes ill or wishes to take annual leave during the period they are suspended the procedures for reporting and authorising such leave will still be applicable. In these circumstances managers should contact HR.
2.2.9 There may be exceptional circumstances when pay may be withheld during a period of suspension. This might arise, for example, where an employee is debarred from work as the University would be in breach of legislation by continuing to employ the individual. Any decision to withhold pay during a period of suspension must be authorised by the Director of HR.
2.3 Temporary exclusion from work
2.3.1 There may be exceptional occasions when due to the timing and or availability of a relevant manager authorised to suspend and due to the seriousness of the situation, exclusion is considered appropriate in advance or instead of suspension. E.g. it has just come to light that the employee does not have the necessary professional registration to carry out his/her role or his/her right to work has expired.
2.3.2 In the above circumstances a manager may instruct an employee to leave work and remain at home until further notice, in order to allow the manager to take appropriate advice and decide on the next steps. This would be a temporary exclusion (rather than suspension) to allow the manager to determine if suspension is warranted. Any such exclusion will normally last for a day or two and certainly no longer than a week, and must be reported to the Director of HR as soon as possible to facilitate a prompt decision.
2.4 Right to be accompanied
2.4.1 Formal meetings - All employees who are the subject of this procedure will have the right to be accompanied at any formal meetings held under this procedure by a single trade union representative or work colleague. The work colleague must be an employee of the University of York and appropriate time off will be facilitated. Employees are expected to make all arrangements for their work colleague to attend meetings and it is expected that adequate time be allowed to arrange representation and for attendance. Where the chosen companion cannot attend on the date proposed, the employee can propose an alternative time and date so long as it is reasonable and is within a reasonable timescale, normally five working days of the original date.
2.4.2 Informal meetings - By agreement, the facility to be accompanied may be extended to the informal stage where this is deemed to be in the interests of an early resolution. If a member of staff wishes to be accompanied at an informal meeting permission will not be unreasonably withheld.
2.4.3 Role of representative or companion - See Section 4 for roles and responsibilities.
2.4.4 Definition of representative or companion - while legal representation would not normally be consistent with an internal procedure, there may be situations when it may be helpful for either party to be legally represented and, subject to agreement, legal representation may be appropriate. Employees should note that the absence of legal representation will not prejudice their legal rights and they will still have recourse to the provisions of employment law.
2.5 Equality and diversity
2.5.1 If there are equality or diversity issues that are relevant to the employee these should be made known to those involved and appropriate support provided by the University. In the case of a disability or language issue an employee may be accompanied by an appropriate person to provide support.
2.5.2 Managers should check if there are any special arrangements, e.g. support for a disability, that an employee or his/her companion may require to enable them to participate fully in the procedure. Appropriate guidance may be sought from an HR Manager. Correspondence in relation to this procedure will invite the employee to inform the University if they require additional support.
2.6 Confidentiality
2.6.1 All parties involved in this procedure must ensure that they maintain the confidentiality of the process as appropriate within and outside the University. It might be appropriate, for example, for a member of staff to discuss a procedure with his/her partner or with a trade union official. Disclosure of information by any of the parties involved might also occur where this is required under law or where there is a circumstance involving duty of care which requires disclosure, e.g. where a manager has concerns for the well being of the employee or others.
2.6.2 Audio and video recording of meetings is not permitted except in exceptional circumstances, with the prior agreement of all parties.
2.7 Involvement of Human Resources
2.7.1 A member of the Human Resources team will be consulted and will advise on the formal process, including suspension. A HR representative will normally be present in formal hearings when dismissal may be an outcome.
2.7.2 If required, a further person, normally from HR, will act as note taker during such formal hearings. These will be made available to the parties present at the meeting.
2.8 Timescales
2.8.1 The aim throughout this procedure is to ensure that staff are treated reasonably and in accordance with the principles of fairness and justice. The procedure should be expedited as soon as reasonable while still allowing these principles to be achieved.
2.8.2 while every endeavour will be made to comply with timescales, due to the complexity and or specific circumstances of a case, timescales may be extended. In such circumstances the individuals concerned will be advised of the reasons for any delay.
2.8.3 To prevent delays communication in relation to this procedure may be issued via electronic mail.
2.9 Attendance
2.9.1 If an employee does not attend a meeting convened under this procedure normally the meeting will be adjourned to establish contact with the employee to ascertain the reason for his/her absence. It is, however, recognised that there may be circumstances which preclude an employee from attending a hearing under this procedure e.g. because the individual no longer has the right to remain in the UK. In such circumstances the employee's representative may attend the hearing on his/her behalf. However, if the employee does not attend without good reason the meeting may proceed in his/her absence.
2.9.2 Where an employee and/or his/her representative persistently fail to attend a meeting/hearing without good cause, the appropriate manager will make a decision on the evidence available.
3. Authority to act
3.1 The term Head of Department includes Heads of (or Directors of) Support Service Directorates. Except in relation to paragraph 2.2.3, the Head of Department may select a nominee to act on his/her behalf. The nominee will be agreed in conjunction with HR and will be a senior colleague. In the absence of the Head of Department it may be appropriate for the manager deputising for the HoD to act on his/her behalf.
3.2 There may be exceptional circumstances where it would not be appropriate for the Head of Department to act in a case e.g. the Head of Department is required to act as a witness or is the subject of a complaint. In such circumstances the case will be referred to the Director of HR who may refer the case to an alternative Head of Department or a more senior officer of the University.
4. Roles and responsibilities
| Title | Role |
|---|---|
| Authorised Manager | As detailed in this procedure, line managers including but not limited to, Heads of Department, will usually deal with cases under this procedure. They may consult with HR and if necessary appoint an investigatory manager and following receipt of his/her report be authorised to make decisions in relation to the case. |
| HR representative - member of the HR team usually HR Manager or HR Advisor | The HR representative will provide advice in respect of the application of this procedure. S/he will support the manager in the process of making an informed, fair and reasonable decision. He/she will ask questions at the hearing and challenge evidence where required. |
| Employee | Will respond to issues raised under this procedure. Will be provided with the opportunity to bring forward information and put his/her case at hearing and appeal. S/he may question any witnesses and/or the presenting manager and may make representations to the appeal officers. |
| Representative or companion | This may be either a Trade Union representative or work colleague. S/he will support and advise the employee, and may ask any questions or make any representations on behalf of the employee. S/he cannot answer questions that are directly put to the employee. |
| Manager who made the original decision being appealed | May present the case or be a witness to explain the decision being appealed.
May be accompanied by an advisor. |
| Witnesses | To provide evidence in relation to the matter of the appeal |
| Note taker | To take notes of the hearing. These will be notes of key points and will not be a verbatim record. The notes will be provided to both parties who will have the opportunity to submit their comments. |
| Appeal Panel | In cases of Dismissal there will be an Appeal Panel of three senior managers appointed by the Vice-Chancellor, including a chair, who will be a Member of University Executive Board. The panel will lead and direct the hearing, decide if the employee's appeal is justified, by questioning and challenging all available evidence in order to make an informed, fair and reasonable decision.
The appeal officers should encourage all parties to speak freely to establish all the facts and determine if there are any special circumstances to be taken into account. |
| Investigatory manager | Manager appointed to investigate the case. At hearing will outline the issues and present all related evidence. He/she will answer questions relating to the investigation and may be required to carry out further investigation as directed by the manager who initiated the investigation. |
| Senior Manager | Member of the University Executive Board, Dean of Faculty, Associate Dean, Head of Support Directorate (Senior Management Group), Head of Department. |
4.1 Individuals involved in specified roles should not be compromised in fulfilling those duties, for example, due to, significant prior knowledge of or involvement in the case or undertaking another role such as witness. If there is any concern from any party regarding potential compromise, this should be raised with the Director of HR.
4.2 If a senior manager is subject to this procedure his/her line manager would be responsible for managing the process and adopting the roles as indicated for Heads of Department.
5. Meetings
5.1 In the vast majority of cases that fall to be dealt with under this procedure (e.g. expiry of sabbatical cover) there will be no dispute over the facts and an investigation will not be necessary1. In such cases the employee should be invited, in writing, to attend a formal meeting with the Head of Department or nominee and given the right to be accompanied. That invitation will specify the circumstances that have led to consideration of the termination of the relevant employment. At the meeting the employee will be given the opportunity to state his/her case and raise any factors s/he wishes to have considered.
5.2 If, following the discussion, it is determined that the individual's employment should cease, s/he will be advised that his/her employment will be terminated for some other substantial reason.
5.3 This decision may be given verbally at the meeting and will in any case be conveyed or confirmed in writing within five working days of the meeting. Where it is not possible to give a decision at the meeting the employee will be advised of the delay.
5.4 The letter shall also notify the individual employee of his/her right to appeal against any adverse decision. In the event that the decision is taken to dismiss the employee, the letter will include the reasons for dismissal and the date that his/her employment will terminate and any notice arrangements.
6. Investigation
6.1 Where the facts of the case are not clear or further enquiry is warranted, the manager may appoint an Investigatory Manager to conduct an impartial and thorough investigation.
6.2 The investigatory manager will consider all the relevant facts of the case, interview relevant witnesses and take statements and make a recommendation to the authorised manager (who initiated the investigation) as to whether the matter should be dealt with formally under this procedure. The recommendation will normally be in the form of a report summarising the process of investigation, the issue under consideration and the findings. It will not be for the investigatory manager to recommend what action is appropriate.
6.3 It is for the manager who initiated the investigation to consider the recommendation and findings of the investigation and decide if there should be a formal hearing.
6.4 The investigatory manager will normally present the findings of the investigation at a formal hearing.
7. Hearings
7.1 Preparation
7.1.1 If it is decided to proceed to a hearing the employee will normally be given ten days notice and invited in writing to attend a hearing. The notice will specify the manager who will conduct the hearing. The nature of the issue under consideration will be included in the letter and the employee will be invited to make any written submissions or bring forward witnesses.
7.1.2 The manager will make arrangements for the hearing and will be accompanied by an HR representative. The purpose of the hearing is to provide the opportunity for the employee to respond to the issues raised under this procedure.
7.1.3 Prior to the hearing, the parties (i.e., the employee concerned and the person who is to present the management case) will submit to the manager conducting and hearing the case the names of any witnesses and an explanation of why their evidence is required together with any written submissions they wish to have considered and a copy of any documentary evidence they intend to rely on at the hearing. They will do so as soon as reasonably practicable and not less than five working days before the date set for the hearing to allow for an exchange of documents between the parties.
7.1.4 On the basis of the information submitted, the manager conducting and hearing the case will determine whether or not such witness evidence is required and will confirm the witnesses to be called. The manager may request additional witnesses but as s/he will only be able to consider this shortly before the hearing, notification may be given at the hearing.
7.1.5 Employees are responsible for making arrangements for his/her witnesses to attend. Where witnesses are employees of the University, appropriate time off will be facilitated.
7.3 Presentation of the case
7.3.1 The presenting manager will present the findings from the investigation, call witnesses, and question them and the employee in relation to the issue under consideration. The presenting manager should:
state clearly the area(s) of concern
outline the case by going through the evidence that has been gathered
call witnesses if appropriate
answer questions that relate to the investigation and its outcome.
7.4 The employee
7.4.1 The employee or his/her representative will present his/her case, question witnesses and raise any issues s/he wishes to have considered.
7.4.2 The employee or his/her representative should:
- state his/her case and respond to the issues that have been raised.
- ask questions and present any evidence in support of his/her case
- call witnesses if appropriate
7.5 The manager conducting and hearing the case
7.5.1 The manager conducting and hearing the case should:
- Use questions to clarify the issues and to check that what has been said is understood.
- encourage the employee to speak freely to establish all the facts
- establish if there is any means of resolving the issue
- summarise the main points of the discussion after questioning is completed
- ensure all evidence and points for all parties have been put forward
- establish if there are any special circumstances to be taken into account
- ask the employee if they have anything further to say or to be taken into account
7.5.2 The manager conducting and hearing the case will be able to question all those involved. S/he will consider all representations before deciding on an appropriate outcome.
7.5.3 Adjournment - Before a decision is taken adjourning allows the manager time for reflection and proper consideration of the available evidence and facts of the case. If new facts have emerged or there is any dispute over facts, it may be necessary to adjourn the hearing in order to investigate them and reconvene the hearing at a later date when this has been completed. Any new evidence must be shared with both parties prior to the reconvened hearing.
7.5.4 Hearing outcome - If the hearing highlights that the employee has provided an adequate explanation or there is a way of resolving the issue under consideration, the manager should advise the employee accordingly and bring the proceedings to a close.
7.5.5 If the manager concludes that the evidence supports a decision to dismiss, s/he can inform the employee of this decision.
7.5.6 The decision may be given verbally at the hearing and will in any case be conveyed or confirmed in writing within five working days of the hearing. Where it is not possible to give a decision at the hearing the employee will be advised of the delay.
7.5.7 The letter shall also notify the individual employee of his/her right to appeal against any adverse decision. In the event that the decision is taken to dismiss the employee, the letter will include the reasons for dismissal and the date that his/her employment will terminate and any notice arrangements.
8. Appeals
8.1 Preparation
8.1.1 The employee can appeal against the outcome of a decision to dismiss under this procedure and must submit in writing his/her grounds for appeal to the Director of HR within ten days of receiving the letter confirming the outcome of the meeting/ hearing.
8.1.2 Appeals will normally be heard within thirty working days of the notice of appeal.
8.1.3 Appeals can be made on the following grounds:
The procedure was unfair, and/or the correct procedure was not followed.
The decision was unfair or perverse because the evidence did not support the decision
The action taken against the employee was too severe
There is new evidence that was not available at the original hearing to support the employee's case
8.1.4 HR will notify the parties (i.e., the employee concerned and the person who is to present the management case) involved of the date of the appeal hearing a minimum of ten days prior to the meeting.
8.1.5 The parties will send to HR the names of any witnesses and an explanation of why their evidence is required together with any written submissions they wish to have considered and a copy of any documentary evidence they intend to rely on at the hearing. They will do so as soon as reasonably practicable and not less than five working days before the date set for the hearing to allow for an exchange of documents between the parties.
8.1.6 On the basis of the information submitted, the Appeal Panel will determine whether or not such witness evidence is required and will confirm the witnesses to be called. The Appeal Panel may request additional witnesses but as s/he will only be able to consider this shortly before the hearing, notification may be given at the hearing.
8.1.7 Employees are responsible for making arrangements for their witnesses to attend. Where witnesses are employees of the University, appropriate time off will be facilitated.
8.1.8 HR will send the names of any witnesses to be called and copies of any written submissions and documentary evidence to all parties as soon as these have been exchanged.
8.1.9 The Appeal Panel will have the authority to reach the following conclusions or to make other recommendations:
- Confirm the outcome and decision of the original meeting
- Uphold the appeal of the employee if there is evidence to prove the case is not proven or if the conduct of the procedure has been unfair*
- Apply an alternative outcome to that originally imposed
- Adjourn the appeal due to significant new evidence which requires further investigation and consideration
*It may be appropriate in such circumstance to recommend a rehearing
8.1.10 The outcome of the appeal will be final and there will be no further internal right of appeal. Any dismissal under this procedure will remain in force pending the outcome of any appeal.
8.2 Conduct of appeal hearing
8.2.1 The purpose of the appeal hearing is to establish it the finding of the SOSR procedure was appropriate and procedurally correct.
8.2.2 Requests for adjournments may be made by any party.
8.2.3 If a witness is called by any party to the appeal s/he will be invited to attend the hearing at an appropriate time.
8.3 Appeal procedure
8.3.1 The chair of the Appeal Panel will open the hearing with introductions and explain:
- those present and their roles
- the purpose of the meeting which is to consider the employee's case for appeal against the University's procedure
- how the meeting will be conducted
- the possible outcomes of the hearing
8.3.2 The employee or his/her representative will first present, stating his/her case for appeal and any evidence in support of the case. Witnesses may be called and questioned by the employee and the other parties to the appeal.
8.3.3 The manager presenting the University case and his/her advisor will present the reasons why the original decision was taken and call any witnesses. Questions may be put to the presenting manager and any witnesses as above.
8.3.4 The manager presenting the University case will make a final submission and then the employee will make his/her final submission.
8.3.5 If new facts have emerged or there is any dispute over facts, it may be necessary to adjourn the appeal hearing in order to investigate them and reconvene the hearing at a later date when this has been completed. Any new evidence must be shared with both parties prior to the reconvened hearing.
8.3.6 When the Appeal Panel has all the relevant evidence it will consider its decision after those presenting have withdrawn. This adjournment before a decision is taken allows the Appeal Panel time for reflection and proper consideration of the case for appeal and any additional evidence that has been presented.
8.3.7 The decision of the Appeal Panel may be conveyed verbally to the employee after a period of adjournment, unless the Appeal Panel requires more time for reflection and consideration. The decisions will be conveyed (or confirmed) in writing within ten working days of the hearing. The letter will contain the reasons for the Appeal Panel's decision as to whether the employee's appeal is upheld.
These guidelines must be read in conjunction with the SOSR procedure. Reference should be made to HR if there are any further queries.
Notes
In cases of doubt guidance should be sought from Human Resources.
Document control
- Approved on: 1 May 2011