1. This procedure outlines the process to be followed when dealing with disciplinary matters for statutory officers in Lancashire Fire and Rescue Service. It is intended to provide a fair and consistent process specifically for dealing with disciplinary action, the use of suspension, carrying out investigations, dismissals and appeals for the post-holders who hold the office of Head of Paid Service (Chief Fire Officer), Monitoring Officer and Treasurer (Director of Corporate Services), referred to as statutory officers. This procedure only applies to employees of Lancashire Fire and Rescue Service.
61. The following has been considered in the development of these procedures:
2.1 The Local Authorities (Standing Orders (England) Regulations 2015 amended.
2.2 The Local Authorities (Standing Orders) (England) Regulation 2001 regarding the disciplinary procedure for statutory positions within authorities.
2.3 The Joint Negotiating Committee (JNC) has issued a revised edition of the National Salary Framework and Conditions of Service Handbook for Local Authorities’ Chief Executives. The included Model Disciplinary Procedure (England and Wales) forms the basis of this procedure (applies to Treasurer and Monitoring Officer).
62. The disciplinary action in relation to this process includes any action occasioned by alleged misconduct or poor performance which, if proven, would be recorded on the statutory officer’s personal file. This includes any proposals for dismissals of the statutory officer for any reason other than redundancy, permanent ill health or infirmity of body where another more appropriate procedure may be invoked.
63. Where an allegation is made in respect of a statutory officer which could constitute either misconduct or gross misconduct, then the Authority may initiate this disciplinary procedure.
64. If the employee raises a grievance during the disciplinary procedure, the employer can pause the disciplinary investigation or hearing and deal with the grievance first. It may be appropriate to deal with both at the same time if the grievance and the disciplinary case are related.
65. The statutory officer will have the opportunity to be accompanied by their trade union representative or some other person of their choice (at their own cost), excluding, in exceptional circumstances, where there is a need to suspend the statutory officer in an emergency.
66. The statutory right to be accompanied applies only to hearings where disciplinary action may be taken or confirmed. Whilst every effort will be made to agree suitable dates the unavailability of a representative cannot unduly delay the procedure. In this procedure the statutory right to be accompanied would arise as follows:
7.1 Where the Investigation and Disciplinary Committee (IDC) considers the report of the Independent Investigator (II) and provides the statutory officer with the opportunity to state their case before making its decision.
7.2 During any appeal against the decision taken by the IDC for action short of dismissal.
7.3 At a full Authority meeting considering a recommendation for dismissal which also fulfils the requirement relating to a right of appeal.
8. At any of these detailed stages the statutory officer, where the representative is unavailable, will have the right to postpone the meeting for a period of up to ten calendar days.
9. If the statutory officer representative is unable to attend within that period the Authority has the right to proceed with the hearing without further delay, although reasonable consideration should be given to arranging an alternative date.
10. The Chief Fire Officer, in consultation with the Chair of the Authority or, in their absence, the Vice-Chair holds the delegated power to suspend the Director of Corporate Services and the Monitoring Officer immediately in an emergency. The Chair and any leaders of other political groups will be advised that a statutory officer has been suspended on emergency grounds.
11. Where there is a consideration to suspend the Chief Fire Officer, an Investigation and Disciplinary Committee (IDC) will be established and the facts considered.
12. Suspension will not take place until the provision of appropriate welfare arrangements have been considered. This includes but is not limited to:
12.1 Referral to Occupational Health.
12.2 Appointment of a welfare officer – this may be internal or external.
12.3 An internal point of contact whose role is to keep the officer regularly updated on progress of the investigation or next steps.
12.4 Signposting to the Employee Assistance Programme.
12.5 Safeguarding.
12.6 Consideration of the involvement of the Chair of the National Fire Chiefs Council (NFCC).
13. This procedure will allow for an initial fact finding or preliminary investigation to be undertaken. The purpose of the initial fact finding, or preliminary investigation is to determine if a potential question of discipline exists and, if it does, whether it could not be resolved by a quiet word, informally (such as, through an unrecorded informal warning).
14. However, it will depend upon the seriousness of the situation. The working context will also be considered, for example a challenging period for employees or communities such as industrial action or changes to service delivery. The potential for a vexatious complainant or smear campaign will also be considered. Advice can be provided by the Chief Fire Officer, Monitoring Officer, Legal Services and Standards Manager, and Director People and Development, as applicable and depending on the circumstances of the case. Records should be kept of allegations and preliminary investigations.
15. On receiving the initial fact-finding report, the Monitoring Officer or their deputy, and if the matter relates to the Monitoring Officer, the Chief Fire Officer, (in consultation with the independent person) will determine whether a case should be referred to the IDC. The IDC will comprise a group of five members politically constituted with the Chair usually being the Chair of the Fire Authority.
16. If an allegation or other issue raised against a statutory officer is considered to require a full investigation, the following process will apply.
16.1 The Monitoring Officer, or their deputy will receive and refer the allegation or issue to the IDC. The Monitoring Officer or their deputy will act as Clerk to the IDC providing necessary procedural and administrative support including noting the meetings accordingly. The IDC will decide when receiving the initial allegation, the appropriate person to assist them with information gathering that may be required at this initial stage. This may be the Monitoring Officer, or their deputy, or another appropriate person as determined by the IDC.
16.2 Where the allegation or issue relates to the Monitoring Officer then the CFO will nominate an appropriate person to be responsible for the receiving and referring of the allegation or issue to the IDC. In such circumstances the Deputy Monitoring Officer will provide procedural and administrative support to the IDC as necessary. The IDC will decide, when receiving the initial allegation, the appropriate person to assist them with the information gathering at this stage. This may be the Deputy Monitoring Officer, or another appropriate officer as determined by the IDC.
16.3 The IDC will, as soon as is practicable, inform the statutory officer in writing of the allegation or other issues under investigation. They will also provide, as soon as is practicable, them with any evidence the IDC is to consider. This includes the right to hear any oral evidence that may be presented.
16.4 The statutory officer will be invited to put forward written representations and provide any evidence, including evidence from any witnesses they wish the IDC to consider. The IDC will also provide the opportunity for the statutory officer to make oral representations direct to the IDC. The IDC, having considered the allegation or other issues, supporting evidence, written or oral representations of the statutory officer and report (oral or written) prepared by the information gatherer, will decide whether the allegation or issues considered:
16.4.1 Require no further action.
16.4.2 Can be resolved via issue of an unrecorded oral warning.
16.4.3 Should be referred to an independent investigator.
17. In determining whether an allegation of misconduct by a statutory officer should be investigated in accordance with the Authority’s approved procedures, it may be decided to take no action if one or more of the following applies:
17.1 Insufficient information has been provided on which to base a decision on whether the allegation should be investigated.
17.2 The allegation appears to be simply malicious or “tit-for-tat” .
17.3 The allegation is deemed vexatious.
17.4 Based on the evidence, the allegation is unfounded, by reference to a cursory examination of the facts on a balance of probability.
18. Where an informal or unrecorded oral warning is to be issued the Monitoring Officer, (or the deputy for issues involving the Monitoring Officer), will make necessary arrangements for the statutory officer to attend a planned meeting of the IDC.
19. The threshold test for the appointment of an independent investigator is where the IDC considers:
19.1 There is sufficient evidence in support of the allegation to require further investigation.
19.2 Should the allegations be upheld it would lead to either dismissal or another formal sanction that would be recorded on the statutory officer’s file.
20. The IDC will aim to advise the statutory officer in writing of its decision within a maximum period of two months, following initial submission of the allegation or complaint to the IDC. In exceptional cases where the IDC anticipates further time is necessary beyond two months, the statutory officer will be notified of this.
21. The IDC will request officer support, when required, to ensure the formal stages can progress procedurally as necessary. This may involve the Monitoring Officer, their deputy, the Director of People and Development, members of Democratic Services or relevant deputies as appropriate to ensure the procedure can progress in a timely manner.
22. The IDC are responsible for the appointment of an independent investigator. This may be from the nationally maintained list, Northwest Employers, a suitably qualified and trained investigator, or a fire sector expert. The IDC will be provided with three names which will then be provided to the statutory officer who is subject to the complaint. The statutory officer will be invited to select one of the names and may only discount names where a genuine conflict of interest exists. If the statutory officer has not agreed a name within 14 days, the IDC will select the investigator from the names provided.
23. The IDC will be responsible for ensuring the independent investigator is provided with terms of reference for their role and has sufficient facilities, support, access to information and officers, and is appropriately remunerated for this role.
24. Once appointed, the independent investigator should carry out a thorough investigation in line with the Advisory, Conciliation and Arbitration Service (ACAS) Code of Practice on Discipline and Grievances to gather evidence and establish the facts promptly, ensuring a written record is made at all stages for later reference.
25. Where the statutory officer is to be interviewed by the independent investigator as part of an investigation they will be advised of the purpose of the meeting in advance. When making these arrangements this should not frustrate or delay the investigation.
26. The statutory officer or their representative will be given the opportunity to present their case and any relevant evidence to the independent investigator. Any technical expertise or witnesses relevant to the case will also be made available where necessary.
27. Notes of any interviews taken as part of the investigation process should be treated as confidential and also treated with discretion. However, those taking part in the process should be advised that any records, notes and statements or interviews, taken as part of the process, may be shared as appropriate, if assessed as relevant information to be considered within the context of this policy and procedure.
28. Having investigated and established the facts, the independent investigator will refer the completed investigation report and evidence gathered, including any recommendations with rationale as to the way forward, to the IDC via either the Monitoring Officer, their deputy, or other appropriate officer as pre-determined by the IDC.
29. The IDC will consider the report of the independent investigator and the recommendations made during a formal disciplinary hearing conducted in accordance with the ACAS Code of Practice and its supporting guidance, before deciding on the course of action to take.
30. During the hearing, the statutory officer will be provided with the opportunity to make representations or provide mitigating circumstances at the hearing and may be accompanied. The statutory officer will have the opportunity to challenge the recommendations of the Independent Investigator and question any witnesses.
31. Following the Formal Hearing the IDC will make a recommendation as follows:
31.1 No case to answer.
31.2 Disciplinary action short of dismissal.
31.3 Dismissal.
32. Where there is no case to answer the IDC will advise the statutory officer, in writing, of their decision confirming the ending of any suspension, if required.
33. In such instances, appropriate communication can be prepared in consultation with the statutory officer to ensure as far as possible that there is no damage to their reputation.
34. The IDC when recommending disciplinary action short of dismissal, will be responsible for taking the action and imposing any appropriate penalty. There is no requirement for full Authority to approve action short of dismissal. The actions short of dismissal available to the IDC are as follows:
35. Issue a written warning;
35.1 A verbal warning valid for 6 months from the date of issue.
35.2 A written warning valid for 12 months from the date of issue.
35.3 A final written warning valid for 18 months from the day of issue.
36. The IDC will communicate its decision to the statutory officer in writing outlining the rationale for the decision. The statutory officer will have the right to appeal disciplinary action short of dismissal to the Appeals Committee.
37. Where the IDC decision is to recommend dismissal, the statutory officer must be notified in writing of the recommendation and advised that this recommendation will be sent to the Independent Panel, along with copies of the independent investigators report. The statutory officer must be advised of the option to submit a written representation to the Independent Panel.
38. The Independent Panel (IP) is an advisory committee appointed by the Authority that consists of two independent persons appointed under S28 (7) of the Localism Act 2011, established for the purpose of advising the Authority on matters relating to the dismissal of the statutory officers. Guidance issued by the Department of Communities and Local Government (DCLG) recommends that the Independent Panel should consist of independent persons only. This approach is consistent with the JNC for Local Authority Chief Executives Model Disciplinary procedures.
39. The IP will be responsible for considering any recommendation from the IDC to dismiss a statutory officer and will consider both the IDC decision report along with the report from the independent investigator. The IP meeting is not a re-hearing, and witnesses will not be called. The statutory officer however should be present at the meeting of the IP, and the IDC should be represented by a nominated person.
40. The statutory officer will be entitled to submit written representations for consideration by the IP as well as being afforded the opportunity to make oral representations at the meeting of the IP. The nominated representative of the IDC will be invited to respond to any of the points made by the statutory officer during the meeting. Both parties may be questioned as necessary by the IP.
41. The Independent Panel will consider the IDC recommendations, the submission of the statutory officer and the report of the Independent Investigator and make their recommendations in a report for full Authority. The report of the IP will outline a clear rationale if they disagree with the recommendation of the IDC to dismiss. The panel may give advice, express its views and make its own recommendations before the Authority to consider whether to approve a proposal to dismiss a statutory officer.
42. The panel may have access to external legal and professional advice as necessary.
43. A report will be submitted to full Authority by the Monitoring Officer or their deputy, or another appropriate officer as necessary which includes:
43.1 The recommendation of the IDC.
43.2 The Independent Investigators Report.
43.3 The comments made on the recommendation for dismissal from the Independent Panel.
44. The full Authority will consider the recommendation to dismiss the statutory officer. The meeting will not be a re-hearing, and witnesses will not be called. However, the statutory officer will be invited to attend this meeting and given the opportunity to address the Authority. The independent investigator may also be invited to attend to provide clarification if required.
45. Following full consideration, the Authority should either confirm or reject the recommendation to dismiss. It is a statutory requirement that the full Authority must take into account any advice, views or recommendations of the Independent Panel when they are considering the proposed dismissal of a statutory officer and before dismissal (with or without notice) is confirmed to them.
46. The Authority will vote on whether to dismiss (majority vote) and their decision will be final.
47. If rejecting the recommendation, the Authority may elect to impose a lesser disciplinary sanction or take no further action.
48. If the recommendation is confirmed the statutory officer will be notified in writing.
49. An interlude is required of at least 20 working days between the Independent Panel and the full Authority meeting.
50. The statutory officer has the right to appeal against action short of dismissal to the Appeals Committee. The statutory officer must appeal within seven calendar days of receiving the notice of the sanction and the outcome of the hearing. The notice of any appeal must be in writing and should clearly specify one or more of the grounds of appeal such as:
50.1There was a defect in the procedure.
50.2 The independent investigators report being inaccurate or incomplete.
50.3 The issue is not proven on the balance of probabilities.
50.4 The disciplinary sanction was too severe.
50.5 New evidence has come to light since the hearing which will have an impact on the decision.
51. The Appeals Committee will consider the report of the independent investigator and any other relevant information considered by the IDC. The statutory officer will have the opportunity to appear at the meeting of the Appeals Committee and present their case.
52. The Appeals Committee will consider all matters before deciding as to whether to:
52.1Reject the appeal and confirm the IDC’s decision.
52.2 Allow the appeal in part and impose alternative action short of dismissal.
52.3 Allow the appeal and take no further action against the statutory officer.
53. The decision of the Appeals Committee is final.
54. The ACAS Code of Practice requires that an employee who is dismissed is provided with the opportunity to appeal against the decision.
55. The whole Authority should approve a dismissal before notice of dismissal is issued. There may be some concerns about the ability to offer a fair appeal if the whole of the Authority is familiar with the issues and already taken the provisional decision to dismiss.
56. All information will be provided to all Authority members in line with statutory requirements providing an opportunity for members to raise objections.
57. The statutory officer will have the option to make written representations in advance to the Authority and attend the meeting to make oral representations before the decision is taken on the recommendation to dismiss. Those representations constitute the statutory officer’s final right of appeal.
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