How NHS disciplinary procedures work

The NHS Terms and Conditions of Service Handbook does not contain a national disciplinary procedure for Agenda for Change staff. Section 19 lists “the resolution of disciplinary matters and disputes procedures” among the terms agreed locally with staff representatives. Your trust has its own policy, and the Acas Code of Practice on disciplinary and grievance procedures is the baseline for what that policy should contain. The handbook does say how a sanction or suspension affects your pay step.

Where your procedure is written

Look for your trust’s disciplinary or conduct policy, usually on the intranet or from HR. It will name the stages, who can investigate and who hears the case, the time limits and the appeal route. Policies differ in layout and wording. Acas says the procedure an employer follows is taken into account if a case reaches an employment tribunal. GOV.UK says an employer can try to raise a matter informally first but can also go straight to the formal procedure. A formal procedure should include a hearing where you can explain your side, and a chance to appeal.

The Acas Code applies to misconduct and poor performance. Where an employer has a separate capability procedure, the Code says the basic principles of fairness should still be followed there. Redundancy dismissals are outside the Code. The general disciplinary procedures guide covers the stages in more detail.

Investigation and suspension

The Code says investigations should be done without unreasonable delay. In misconduct cases, where practicable, different people should carry out the investigation and hold the disciplinary hearing. An investigatory meeting should not by itself lead to disciplinary action.

The Code says suspension with pay should be as brief as possible, kept under review, and made clear to be a neutral act rather than a disciplinary action. The NHS handbook backs this up in the pay progression annex: suspension from work on full pay is a neutral act. If you are suspended on your pay step date and were meeting the progression standards when you were suspended, you should still move up a step.

The hearing

If there is a case to answer, you should be told in writing. The notice should give enough detail to prepare, normally copies of written evidence, the time and place, and your right to be accompanied. The meeting should be held without unreasonable delay but give you reasonable time to prepare.

You have a statutory right to be accompanied by a fellow worker, a trade union representative or a union official at any hearing that could lead to a formal warning or other action. If your companion cannot attend, the employer must postpone to a time you propose, as long as it is reasonable and no more than five working days after the original date. Your companion can put and sum up your case, respond to what is said and confer with you. They cannot answer questions for you or stop the employer presenting its case. The trade unions guide explains what a representative can do.

Outcomes

The Code says the outcome should be given in writing. Where misconduct is confirmed, a written warning is usual, and a further act of misconduct would normally lead to a final written warning. A first offence can go straight to a final warning if it is serious enough. Gross misconduct can mean dismissal without notice, but the Code says a fair process should still be followed first. A warning should say what was wrong, what has to change by when, and how long it stays current.

An employee has the right to appeal. The appeal should be in writing, setting out the grounds, and heard by a manager not previously involved in the case where possible. You have the statutory right to be accompanied at it.

Effect on your pay step

Annex 23 of the handbook, on pay progression in England, sets out how discipline interacts with steps. To progress on your step date there must be no formal disciplinary sanction live on your record, among other standards.

• “Disciplinary sanction” means conduct sanctions, such as formal warnings. It does not include investigations, informal warnings, counselling or other informal steps, and it excludes warnings about absence due to ill health.
• If a live sanction delays your step, your manager should hold a pay step review before the sanction expires. You then progress the day after it expires, and your future step date stays the same.
• A sanction that takes effect after your step date cannot be used to delay that step.
• If a sanction was in place on the step date and is later overturned, for example on appeal, the step is backdated to the step date if you met the other standards.

The NHS pay progression guide covers the other standards. Absence is handled separately, as the sickness absence triggers guide explains.

Bullying complaints

A complaint that you have bullied or harassed someone is meant to follow a different procedure. The handbook says complaints against staff about bullying and harassment should be seen as separate from the grievance procedure. It asks for a trained investigator working outside their normal area, and says the person complained about must be told in writing. They also have rights of representation and appeal.

What to check

• Your trust’s current disciplinary policy and any separate capability policy.
• Whether the invitation letter gives the allegations, the evidence and your right to a companion.
• That the investigator and the person hearing the case are different people.
• The expiry date on any warning, because it controls when your pay step can move.

If you are a union member, contact your representative as soon as you are told of an investigation. ACAS offers free advice for those who are not.