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Performance and Conduct Policy and Procedure

PERFORMANCE AND CONDUCT POLICY
AND PROCEDURES

Approved by:

Chief Executive

Agreed by:
Cafcass Board


Negotiated by:
Cafcass Partnership
Committee

Implemented by:
All
Managers
and
Employees

Author:
Human Resources

Issue Date
February 2005
Review Date
February 2006

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Performance and Conduct Policy and Procedure

PERFORMANCE
AND
CONDUCT
POLICY
AND
PROCEDURES

Introduction

This  Policy  details  Cafcass‟  approach  to  handling  performance  and  conduct
issues  within  the  workplace.    It  supersedes  all  other  performance  and  conduct
policies which have previously applied.

1
Purpose and Scope

Cafcass  has  a  responsibility  to  ensure  that  employees  know  what
standards of conduct and performance are expected at work for both the
efficient  provision  of  services  and  for  reasons  of  health  and  safety.    In
order to provide a fair and effective method for dealing with unsatisfactory
conduct  and  performance  the  following  procedure  will  be  applied  in  all
instances  where  management  regard  it  to  be  warranted.  This  procedure
applies  only  in  cases  of  unsatisfactory  conduct  or  performance.
Appendices 1 and 2 set out the standards and procedure for conduct and
Section  3  deals  with  capability  issues  arising  from  poor  performance  or
attendance at work.  Concerns relating to sickness absence will be dealt
with in accordance with the Management of Sickness Absence Policy.

Complaints against Cafcass employees and their handling of current cases
will  usually  be  dealt  in  accordance  with  “The  Comments,  Compliments  &
Complaints  Procedure”.    However,  should  it  transpire  that  the  alleged
offence  constitutes  misconduct  in  accordance  with  the  Performance  and
Conduct Policy and Procedures, this procedure will apply.

2
Policy Principles

2.1
Our  aim  is  to  encourage  improvement  in  individual  conduct  and
performance.  We  aim  to  have  a  fair  and  systematic  approach  to  the
enforcement of standards of conduct and performance.
2.2
The  main  objective  of  instigating  the  procedure  for  conduct  and
performance  is  corrective  rather  than  punitive,  with  the  aim  of  assisting
employees  to  achieve  and  maintain  the  required  standards  of
performance.

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Performance and Conduct Policy and Procedure
2.3
No  disciplinary  action  will  be  taken  until  the  allegation  or  poor
performance has been fully investigated.
2.4
Neither the employee(s), or the employer may use another procedure for
example  the  grievance  procedure  to frustrate  or  stop  the  process of  this
procedure.
2.5
At  every  stage  in  the  procedure  employees  will  be  advised  in  writing  of
the nature of the complaint against them and will be given the opportunity
to state their case before any decision is made.
2.6
Employees  have  a  right  to  be  accompanied  by  a  trade  union
representative,  or  work  colleague  at  every  stage  of  the  procedure.    The
employee  should  be  advised  of  this  right  as  soon  as  a  disciplinary
investigation is established.
2.7
No  employee  can  be  dismissed  for  a  first  breach  of  discipline  except  in
the case of gross misconduct.
2.8
No  disciplinary  action  will  be  taken  against  an  accredited  union
representative until the case has been discussed with the appropriate full-
time  official.  The  union  steward  will  also  be  given  the  opportunity  to  be
represented  by  a  full-time  official,  of  the  appropriate  union,  at  any
subsequent investigatory interviews and the disciplinary hearing if one is
convened.  Where  a  union  representative  is  suspended,  his/her  full-time
official  will  be  informed  as  soon  as  possible  by  the  Disciplining  Officer.
The  suspension  of  a  union  representative  is  a  serious  step  and  should
normally  only  be  undertaken  after  consulting  the  Human  Resources
Team.
2.9
Where  gross  misconduct  is  alleged  or  suspected  an  employee  may  be
suspended  on  full  pay  pending  further  investigations  and,  where
necessary,  until  the  disciplinary  hearing.    Suspension  is  not  a  form  of
disciplinary  action.    In  the  event  of  an  employee  not  being  suspended
when  suspected  of  gross  misconduct,  Cafcass  shall  retain  the  right  to
dismiss that employee if gross misconduct is found to have occurred.
2.10  The  procedure  may  be  implemented  at  any  stage  if  the  employee‟s
conduct  or  performance  warrants  it.    It  is  desirable  to  deal  with
performance  and  conduct  issues  at  the  lowest  level  possible  in  the  first
instance.
2.11  Guidance is set out in Appendices 4 and 5 on the appropriate manager to
deal with a case and the appropriate sanction.  This Guidance is subject
to  the  principle  that  any  manager  involved  in  any  part  of  the  Procedure
(including the investigatory stage) will be able to act independently in the
circumstances.
2.12  Cafcass and our Trade Union partners are committed to undertaking joint
training  initiatives  to  ensure that managers, Trade  Union  representatives

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and Human Resources staff have the skills to carry out the requirements
of this procedure.
3
Capability Issues under Performance and Conduct
3.1
Performance

3.1.1.  In some cases, concern over an employee's  performance may arise from
non-culpable inability, lack of skill or experience, or frequent and persistent
absence due to ill health, long-term illness, or other factors beyond his/her
control.  Action  in  cases  where  there  is  doubt  about  the  capability  of  an
employee to do his/her job is not disciplinary action, but follows the same
steps  both  informal  and  formal  of  the  Performance  and  Conduct
Procedure.

3.1.2.  At the informal stage, the manager of  an employee  whose capability  is in
doubt  will  ensure  that  the  employee  has  received  the  appropriate  training
and supervision needed, review what has been provided and that there is
nothing  else  impeding  adequate  performance.  The  advice  or  warnings
given to employees at each stage in capability cases will specify:

  The areas in which his/her performance is unsatisfactory;
  The improvement in performance which is  required, and how it  will
be measured;
  What  support  will  be  given,  such  as  training,  mentoring,  workload
monitoring or other appropriate support and the timescales for this;
  When his/her performance will be reviewed again;
  The  action  which  may  follow  if  the  required  improvement  in
performance is not achieved.

The  manager  will  discuss  this  with  the  employee  and  his/her
representative  at  each  stage  to  ensure  that  they  understand  what  is
required.

3.1.3  If at any stage of the procedure all parties accept, that for reasons beyond
his/her  control,  the  employee  will  not  be  able  to  achieve  the  necessary
improvement in performance, but would be able to perform at the required
level  in  another  post,  then Cafcass  will  endeavour  to  identify  suitable
alternative employment, if at all possible.  Existing salary and other terms
and conditions of employment will not automatically be protected in cases
where an employee is redeployed for reasons of poor performance.

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3.2
Poor Attendance

When  dealing  with  Poor  attendance  including  frequent  absence  or
punctuality,  a  distinction  should  always  be  made  between  authorised
absences and unauthorised absence which may lead to disciplinary action.

3.3
Sickness Absence

Sickness absence cases are dealt with under the Cafcass Management of
Sickness Absence Policy and Procedure, which should be referred to in all
cases.

4
Status of Performance and Conduct Policy and Procedures

These  Performance  and  Conduct  Policy  and  Procedures  have  been
agreed  with  the  Cafcass  Partnership  Committee.    Cafcass  will  seek  to
agree  future  changes  to  this  Policy  and  Procedure  with  the  Partnership
Committee.  This Performance and Conduct Policy and Procedure forms
part of Cafcass‟ employees‟ terms and conditions of employment.

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APPENDIX 1
The Performance and Conduct Procedure

The  following  stages,  will  apply  to  both  conduct  and  performance  concerns.
Management may enter the procedure at any stage taking into account the facts
of  the  case  and  what  is  considered  to  be  reasonable  in  the  circumstances.
Formal  action  is  only  appropriate  where  informal  action  has  not  led  to  the
necessary improvement in conduct and/or performance, or in more serious cases.
A  copy  of  the  policy  must  be  provided  to  employees  entering  any  stage  of  the
procedure.   Formal  proceedings  must  be  conducted  by  the  appropriate  level  of
management.    Advice  should  be  sought  from  Human  Resources  prior  to  the
instigation of formal proceedings on the approach to be adopted.

1
Informal Stage

Managers  should  be  encouraged  to  deal  with  issues  about  conduct  and
performance informally.  In many cases an informal conversation between
manager  and  employee  will  be  enough.    In  cases  of  less  serious
misconduct  or  concern  about  conduct  and  performance,  the  manager  will
meet the employee to talk about the problem and what needs to be done
about  it.    The  manager  will  make  a  brief  note  of  the  reasons for,  and  the
outcome  of  the  meeting,  and  give  a  copy  to  the  employee,  who  may
comment on it in writing if they wish.

2
Formal Action

If an employee's conduct or performance does not improve sufficiently after
an  informal  stage,  or  in  more  serious  cases,  the  line  manager  shall
consider formal action.

3
Disciplinary Enquiry Which May Lead to a Disciplinary Investigation

3.1
Where  a  matter  arises  which  is  suspected  or  believed  constitutes
misconduct,  the  Operational  Director  (or  other  appropriate  officer),  shall
appoint  an  impartial  `Investigating  Officer',  who  is  not  in  the  line
relationship,  to  conduct  a  preliminary  enquiry  to  establish  if  there  is  a
prima facie case.

3.2
The Investigating Officer will report back on whether there appears to be
a case to answer.

3.3
If  there  is  a  prima  facie  case,  it  must  be  investigated  promptly  and
adequately before proceeding with disciplinary action

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3.4
The employee suspected of the alleged misconduct must be interviewed
as  part  of  the  investigation  (unless  they  are  prevented from  doing  so  by
good  reason)  and  be  given  the  opportunity  to  respond  to  the  allegation.
The employee must be advised that it is an investigatory interview and not
a disciplinary interview.  The employee has the right  to be accompanied
by a trade union representative or work colleague. The employee will be
given  a  minimum  of  5  working  days  notice  in  writing  of  the  investigatory
interview and be advised of his or her right of representation.  The written
notification will indicate the matters to be investigated.

3.5
The Investigating Officer will carry out any other preliminary enquiries that
are  necessary.    In  doing  this,  the  Investigating  Officer  must  talk  to  any
witnesses to the alleged misconduct or poor performance and ask them to
provide written statements about what happened, and consider any written
or other evidence.

3.6
On completion of the investigation, the Investigating Officer will prepare a
full and balanced report for the Operational Director (Disciplining Officer)
or  appropriate  senior officer.  The  report  will  be  shared  with  both parties,
and will form the basis of fact at any subsequent disciplinary hearing.

3.7
On  receipt  of  the  investigating  officer's  report  if  the  Disciplining  Officer
considers  that,  on  the  balance  of  probabilities,  there  is  a  case  for  the
employee to answer, a disciplinary hearing will be convened.

3.8
If the Disciplining Officer considers that there is no case for the employee
to  answer,  then  s/he will  write  to  the employee  and  advise  them  that  no
formal disciplinary action will be taken.

4  Suspension

Advice  must  always be  sought  from  Human  Resources  before  suspending
an employee.

4.1
Where  a  serious  act, or  gross  misconduct  is  alleged,  the  employee may
be  immediately  suspended  while  the  investigation  proceeds.  [There  may
also  be  other  appropriate  circumstances  where  suspension  may  be
warranted,  e.g.  Health  and  Safety  reasons,  and  the  provisions  of  this
section will apply accordingly.]

4.2
Similarly if during the course of an investigation the Investigating Officer is
of the view that gross misconduct may have occurred the employee may
be  suspended.  Any  decision  to  suspend  an  employee  will  normally  be
taken  by  a  Operational  Director  or  appropriate  senior  officer.    Any
decision to suspend will be confirmed in writing (including the reason for
the suspension) by the Operational Director or appropriate senior officer,
within  one  working  day  if  possible,  of  the  suspension  taking  effect.    A
decision to suspend is a neutral act, and not a disciplinary action.

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4.3
A  copy  of  the  letter  of  suspension  will  be  sent  to  Head  of  Human
Resources.    The  employee  will  also  be  provided  with  a  copy  of  the  letter
which  they  may  forward  to  his/her  trade  union  representative  or  the  work
colleague who will be providing them with support.
4.4
During  any  period  of  suspension,  an  employee  will  be  excluded  from
Cafcass‟  offices  during  the  course  of  the  Investigation/Hearing.    However
employees  must  be  available  to  attend  any  meetings  in  relation  to  the
enquiry.
4.5
Employees  will  also  be  required  to  refrain  from  all  of  their  duties  and  to
desist from contact with potential witnesses to the allegation.

4.6
Where the employee to be suspended has been appointed either by or for
the Court as a Family Court Adviser, Cafcass may take the additional steps
set out in Appendix 5.
4.7
It is important that any period of suspension is kept to a minimum and is not
unnecessarily  protracted.  Any  suspension  will  be  regularly  reviewed  (at
least every fortnight) and the suspended employee member kept informed.

5
Representation

5.1
Employees have the right to be represented at all stages of this procedure
- formal and informal - by a work colleague or a trade union representative
and must be advised of this at each stage of the procedure.  Cafcass will
not  be  responsible  for  any  costs  incurred  by  an  employee  in  seeking  or
obtaining representation or advice.  Should an employee‟s work colleague
or trade union representative be unavailable to attend any hearing under
this Performance and Conduct  Procedure,  the employee has the right  to
postpone the hearing and request for it to be re-arranged for a reasonable
alternative  time,  normally  within  7  working  days  of  the  date  the  original
hearing was due to take place.

5.2
No  disciplinary  action  should  be  taken  against  an  accredited
representative of a recognised trade union until the circumstances of the
case have been fully discussed with a full time official of the relevant trade
union.
6
Witnesses

6.1
Where  there  are  witnesses  to  an  alleged  incident,  it  is  each  party‟s
responsibility  to  ensure  that  this  is  brought  to  the  attention  of  the
investigating officer so that the Officer can ensure that written and verbal
statements  are  obtained  at  an  early  stage.  It  is  the  general  expectation
that  witnesses  attend  the  Hearing,  unless  each  party  accepts  the
statements  made,  and  no  further  cross  examination/questioning  is
required.  Employees  who  are  witnesses  can  be  requested  to  attend  a
Hearing.  If it is not possible for a witness to produce a written statement,

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a  verbal  statement  may  be  taken  by  the  Investigating  Officer  with  the
witness' agreement and included in the statement of case. All statements
must be signed and dated by the witness before they can be accepted.

6.2
Cross  examination  of  witnesses  should  be  fair  and  undertaken  in  a
professional  manner.    In  exceptional  circumstances  where  a  witness  is
unwilling to sign a statement or attend a Hearing it is for the Disciplining
Officer to decide whether or not they can proceed with the case.

6.3
Where  a  witness  to  an  incident  is  not  an  employee  of  Cafcass,  it  is
recognised  that  the  individual  may  not  wish  to  attend  the  Hearing.    In
these circumstances, it is suggested that the individual is interviewed and
a  statement  taken  by  the  Investigating  Officer,  with  a  trade  union
representative of the person who is being disciplined also being present,
if possible.  The statement will be taken into account at the Performance
and Conduct Hearing, taking into consideration the lack of opportunity to
cross-examine the individual.

6.4
Where children or vulnerable adults are witnesses to an alleged incident
the investigating officer should  refer to the management  guide regarding
the  process  of  evidence  collection  in  sensitive  cases.  Children  and
vulnerable adults will not be required to attend any disciplinary hearings.

*Nb Refer here to the Management guide for more detailed guidance to ensure
balanced and proportionate action in these situations.

7
Steps Taken Prior to a Formal Performance and Conduct Hearing

7.1
In  all  cases  the  Disciplining  Officer  should  seek  advice  available  from
Human  Resources.    If  the  Disciplining  Officer  feels  that  the  case  may
constitute  gross  misconduct,  the  case  must  be  heard  by  an  officer  at
Director level or above.

7.2
If the Disciplining Officer decides that a formal hearing is necessary, he/she
will seek to agree a time and date which is at the earliest convenience for
both  parties.    Unless  mutually  agreed  otherwise,  the  Performance  and
Conduct Hearing will normally be held within 15 working days of the date of
notification.    Employees  must  take  all  reasonable  steps  to  attend  the
hearing.

7.3
Once the date for the Performance and Conduct Hearing has been set, the
Disciplining  Officer  will  write  to  the  employee  and  his/her  representative
confirming  the  arrangements,  explaining  what  the  allegations  of  the
Performance and Conduct Hearing will be, the basis for these allegations,
who  will  be  present  and  who  will  be  called  as  witnesses,  and  enclosing
copies  of  the  investigating  officers  report  which  will  include  any  written
evidence or witness statements.  This information must be provided to the
employee  no  less  than  7  working  days  before  the  Performance  and
Conduct Hearing so a response to it may be considered by the employee.

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8
Procedure At A Formal Hearing

8.1
Where  the  Disciplining  Officer  considers  that  there  is  a  case  for  the
employee to answer a disciplinary hearing will be arranged.

8.2
The employee will be given a minimum of 7 working days' advance notice
in  writing  of  the  hearing;  informed  of  its  purpose,  with  the  nature  of  the
alleged  misconduct  being  outlined;  and  invited  to  attend  together  with
his/her trade union representative or fellow employee of his/her choice.

If  during  the  course  of  the  investigation  statements  have  been  obtained
from  witnesses  (including  any  who  will  not  be  attending  the  hearing),
copies  will  be  given  to  the  employee  or  his/her  representative  not  less
than 7 working days in advance of the hearing.

8.3
The  Disciplining  Officer  in  discussion  with  the  individual  and/or  their
representative will determine which witnesses will attend the Hearing.

Postponements of hearings for up to 14 days from the date of the original
hearing  may  be  requested  by  the  union  representative  and  will  not
unreasonably be refused.

8.4
The hearing will be conducted by the Disciplining Officer. The Disciplining
Officer will be advised and guided by a Human Resources representative
who  will  also  be  in  attendance.  A  note  taker  may  also  be  present  at  the
hearing if required.

8.5
The Investigating Officer will not be party to the decision making  process
but  will  be  asked  to  present  the  supporting  facts  and  material.    The
employee, his/her representative, the Disciplining Officer and the Human
Resources  representative  will  be  entitled  to  question  the  Investigating
Officer  and  any  witnesses  who  may  attend  the  hearing  to  give  his/her
account of the matter.

8.6
It  is  the  responsibility  of  the  Disciplining  Officer  conducting  the  formal
hearing to:
  Ensure that the necessary investigations have been carried out;
  Ensure  that  the  hearing  is  conducted  fairly,  in  line  with  this
procedure;
  Ensure  that,  as  far  as  possible,  all  relevant  facts  relating  to  the
allegations come out at the hearing;
  Decide  what  action,  if  any,  is  reasonable  and  necessary  based  on
those facts.

8.7
The procedure at a formal interview will be as follows:

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a)
The  Disciplining  Officer  will  outline  the  allegations  being  made  and
how the meeting will be conducted.

b)
The  Investigating  Officer  will  state  what  investigations  took  place
and what was found, and may then be questioned by the employee
and/or his/her representative and the panel.

c)
The Investigating Officer may call witnesses to present evidence on
behalf  of  the  management  case.    Each  witness  may  make  a
statement and may then be questioned in turn by the Investigating
Officer,  the  employee  and/or  his/her  representative,  and  the  panel
conducting the Hearing.

d)
The employee or his/her representative will then state their case and
may then be questioned by the Investigating Officer and the panel.

e)
Any  witnesses  for  the  employee  will  be  called.  Each  witness  may
make  a  statement  and  will  then  be  questioned  in  turn  by  the
employee  and/or  his/her  representative,  the  Investigating  Officer,
and the panel.

f)
The  Investigating  Officer  and,  finally,  the  employee  or  his/her
representative will each sum up their case. No new matters may be
introduced at this stage.

8.8
Evidence  will  not  usually*  be  given  to  the  disciplining  panel  on  previous
acts  of  misconduct  by  the  employee  or  warnings  on  his/her  record  which
are unrelated to the subject of the hearing or have expired.  However, such
evidence  may  be  considered  by  the  disciplining  panel  in  determining  the
appropriate sanction that should be applied to the employee if warnings are
still live.

* Note: In cases where there are child protection issues, previous warnings
may be taken into consideration

8.9
The  Disciplining  Officer  may  adjourn  the  Hearing  at  any  stage  where
necessary  and  if  requested  by  the  employee  or  his/her  representative.
The  reason  for  and  duration  of  the  adjournment  must  be  clearly  stated.
An  adjournment  must  always  take  place  before  the  Disciplining  Officer
announces  his/her  decision.    The  Disciplining  Officer  with  the  Human
Resources  representative  will  deliberate  in  private,  only  recalling  the
employee  and/or  witnesses  to  clear  points  of  uncertainty  on  evidence
already  given.  If  recall  is  necessary,  the  employee  and  his/her
representative must return even if the Disciplining Officer wishes to clarify
the evidence of a witness.

Where  the  Disciplining  Officer  has  decided  to  dismiss,  the  Head  of
Human  Resources  must  be  consulted  before  the  decision  is
communicated  to  the employee  (if the  Head  of  Human  Resources  is  not
available  within  a  reasonable  period  of  time,  a  nominated  officer  from
Human Resources should be consulted).

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8.10  Following  an  adjournment  the  Disciplining  Officer  will  reconvene  the
Hearing  preferably  on  the  same  day  (or  within  5  working  days)  and
announce  the  decision  and  the  disciplinary  action,  if  any,  to  be  taken.
The Disciplining Officer will also give the employee an explanation for that
action  and  explain  the  employee's  right  of  appeal.    All  these  details  will
then be  confirmed  in  writing  to  the  employee  within  five  working  days  of
the hearing.

9
Formal Action

9.1
When deciding whether a disciplinary penalty is appropriate and what form
it should take the panel should bear in mind the need to act reasonably in
all  circumstances.  Factors  which  might  be  relevant  include  the  extent  to
which  standards  have  been  breached,  precedent,  the  employee‟s
disciplinary  record  (disciplinary  records  should  only  be  looked  at  after  the
Hearing  has  taken  place),  length  of  service  and  special  circumstances
which might make it appropriate to adjust the severity of the penalty. If the
panel  decides  that  formal  disciplinary  action  is  to  be  taken  against  the
employee,  it  may  take  one  of  five  forms.  These  are  not  necessarily
sequential;  dependent  upon  the  severity  of  the  case,  any  outcome  can
result:

a)
Written Warning Stage

A  formal  warning  may  be  given  in  dealing  with  conduct,
performance  or  attendance.    The  warning  may  be  given  orally  but
the Hearing will confirm the reasons for it in writing.  It will remain on
the  employee's  record  for  up  to  six  months.  The  employee  should
be told clearly what improvement is required, over what period and
how it will be assessed. The employee may appeal against a written
warning  to  the  appropriate  designated  senior  manager  within  10
working days of the decision being communicated to the employee.

b)
Final Written Warning

If  an  employee's  conduct,  performance  or  attendance  has  not
improved  sufficiently  after  a  formal  warning,  or  in  cases  of  serious
misconduct or poor performance the Disciplining Officer may issue a
final  warning.  The  warning  will  be  confirmed  to  the  employee
member in writing and will remain on the employee's record for up to
12  months.  However,  in  cases  relating  to  abuse  or  negligence
towards service users, fellow employees, or the public, the warning
can be retained on file for a specified longer period, for a maximum
24  months.    The  employee  may  appeal  against  a  final  warning  to
the appropriate designated senior manager.

c)
Dismissal or other Sanction

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Other  Disciplinary  Action  –  Other  reasonable  and  appropriate
action e.g. temporary or permanent transfer to a lower graded post,
or another work location etc, may be imposed in conjunction with a
final written warning, subject to the circumstances of each particular
case.  The employee must be advised of the right of appeal and that
the  appeal  must  be  registered  with  the  appropriate  designated
officer  within  10  working  days  of  the  decision  first  being
communicated to the employee.

Dismissal  with  Notice  –  For  cases  where  a  final  warning  is  still
extant and another incident of misconduct occurs, or performance
does not  improve.  The  employee must  be advised  of his/her  right
of  appeal  in  writing  and  the  appeal  must  be  registered  with  the
Head of Human Resources within 10 working days of the decision
being  communicated  to  the  employee.  A  copy  of  the  letter  of
dismissal will be sent to the Board.

Dismissal  without  Notice  –  For  cases  where  gross  misconduct
has  been  established  on  the  balance  of  probabilities.    The
employee  must  be  advised  of  the  right  of  appeal  and  the  appeal
must  be  registered  with  the  Head  of  Human  Resources  within  10
working days of the decision being communicated to the employee.
A copy of the letter of dismissal will be sent to the Board.

Recording of Warnings

All formal warnings will be recorded on the employee's personal file. The
duration  of  the  warnings,  subject  to  satisfactory  conduct  and/or
performance during that period are as follows:

(a)  Written Warning  - 6 months

(b) Final Written Warning  -  1 year

Warnings should cease to be „live' following the specified period, unless
there  is  a  further  incident  of  misconduct  and/or  no  improvement  in
performance.

Warnings  should  be  removed  from  an  employee's  personal  file  on  the
date  they  become  spent.    There  may,  however,  be  occasions  where  an
employee's conduct is satisfactory throughout the period the warning is in
force but lapses soon after.

Where a pattern emerges and there is reasonable evidence of abuse, the
employee's disciplinary record can then be borne in mind and the duration
of any further warning or final warning may  be given for an additional 6-
month period ie. Up to 18 months.

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10  Appeals

10.1  An  employee  who  wishes  to  appeal  against  the  outcome  and/or  formal
action  from  a  Performance  and  Conduct  Hearing  must  write  to  the
appropriate senior manager. In the case of dismissal (whether by notice or
otherwise),  they  must  write  to  the  Head  of  Human  Resources.  Corporate
Directors,  whether  dismissed  or  otherwise,  should  always  appeal  to  the
Board.  For  the  purposes  of  this  Procedure,  the  relevant  manager  who  is
authorised by this Procedure to deal with the appeal shall be referred to as
the “Appeal Chair”.  This right must be exercised within 10 working days of
the  date  of  the  letter  confirming  the  Performance  and  Conduct  Hearing‟s
decision.  The standard Appeal Form (Appendix 2) must be used.

10.2  The Appeal Chair will  seek to agree a date and time for the appeal with
both  parties.    The  appeal  will  take  place  as  soon  as  possible  after  the
receipt of the notice of appeal, normally within twenty working days.

10.3  Both parties must submit a statement of case to the Appeal Chair no later
than seven working days before an appeal hearing.  The statement of case
must  include  the  facts  of  the  case  and  the  arguments  of  the  party  and,
where appropriate, refer to any mitigating circumstances. The statement of
grounds for appeal on the Appeal Form is not sufficient for this purpose.  All
the  papers  for  the  appeal  will  be  distributed  to  both  parties  at  least  5
working days prior to the Hearing.

10.4  All  appeals  will  constitute  a  review  of  the  original  decision  of  the
Performance and Conduct Hearing.  [Unless, in appropriate circumstances,
the  Appeal  Chair  decides  the  appeal  should  proceed  by  way  of  complete
re-hearing.]  The Appeal Chair will try to, if possible, agree with all parties
the  areas  of  dispute  or  new  evidence  to  be  heard,  to  clarify  the
proceedings.

10.5  The  Appeal  Panel  will  comprise  different  members  from  the  original
Performance and Conduct Hearing.  The Appeal Chair will be more senior
than  the  Disciplining  Officer.    [The  Appeal  Chair  will  be  accompanied  by
two  other  employees  of  appropriate  seniority  one  of  which  will  include  a
senior member of the Human Resources Team].  A member of the Human
Resources Team may act as secretary and note taker to the Appeal Panel.

11  Procedure at an Appeal

Review

11.1  The employee,  his/her  representative  and  the  presenting  manager  will  be
present throughout the appeal. One party may not be present without the
other.   Witnesses  may  only  be  present  when  they  are  giving  evidence  or
being questioned.

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11.2  In  most  circumstances  the  appeal  will  usually  involve  a  review  of  all  the
relevant documentation including the grounds for appeal.

11.3  The panel hearing an appeal has the power to decide on the admissibility
of  questions  and  evidence.    New  evidence  should  normally  only  be
considered at appeal by way of review where it has come to light after the
Performance and Conduct Hearing.

11.4  The procedure at a review appeal hearing will be as follows:

a)
The employee or his/her representative will state the grounds for the
appeal.

b)
The  presenting  manager  (who  will  usually  be  the  chair  of  original
Performance  and  Conduct  Hearing)  and  the  appeal  panel  may
question the employee.

c)
The presenting manager will state the management case.

d)
The  employee  and/or  his/her  representative,  and  then  the  appeal
panel may question the presenting manager

e)
The  panel  conducting  the  appeal  hearing  may  at  any  stage  invite
anyone  involved  to  clarify  or  expand  on  anything  they  have  said
during the hearing, which could include inviting anyone back.

f)
The  presenting  manager  and  finally  the  employee  or  his/her
representative  may  sum  up  their  cases.    No  new  matter  may  be
introduced at this stage.

g)
The  employee  and  his/her  representative  and  the  presenting
manager will then leave the appeal, and the panel will consider their
decision. The panel may recall the parties together if there are points
of uncertainty on the evidence already given.

h)
Where  possible,  the  employee  and  his/her  representative  and  the
presenting  manager  will  be  recalled  and  told  of  the  panel‟s
decision.    The  final  decision  will  be  notified  in  writing  to  the
employee,  his/her  representative  and  the  presenting  manager,  as
soon as possible and preferably within 5 working days. The decision
on an appeal against dismissal will also be reported to the Board.

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APPENDIX 2

Conduct Policy Guidelines

The following are examples of misconduct and gross misconduct that could lead
to  an  employee  being  disciplined  under  the  Performance  and  Conduct
Procedure.  This is list  is for illustrative purposes and are neither exclusive nor
exhaustive. In addition there may be other offences of a similar gravity which will
constitute gross misconduct or misconduct which are not listed.

1
Misconduct

Examples  of  misconduct,  which  could  result  in  a  Performance  and
Conduct Hearing following a full investigation, can include:

  Frequent lateness
  Poor performance
  Verbal abuse of a fellow employee, client or member of the public
  Harassment  or  discrimination  on  the  „discriminatory  grounds‟  (see
Cafcass Diversity Policy)
  Breach of confidentiality
  Failure to carry out a reasonable instruction
  Carelessness in the use of equipment and/or insufficient regard for
the safety of others
  Charge of criminal offence where relevant to the employee‟s role
  Breaches of Cafcass policies and procedures.

2
Gross Misconduct

Any act of misconduct, if serious enough, may constitute gross misconduct.
Gross misconduct is generally regarded as misconduct serious enough to
destroy  the  employment  contract  between  employer  and  employees  and
make any further working relationship and trust impossible.

In  addition  to  serious  acts  of  misconduct,  examples  of  specific  behaviour
that might lead to dismissal for gross misconduct are:

  Theft,  fraud  and  deliberate  falsification  of  records,  expense
accounts, timesheets, etc.
  Acts  of violence including the physical assault or threat  of assault
of a fellow employee, client or member of the public

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  Serious bullying or harassment
  Deliberate damage to property
  Serious insubordination
  Misuse of the organisation‟s property or name
  Bringing the employer into serious disrepute
  Serious incapability whilst on duty brought on as a result or being
under the influence of alcohol or illegal drugs
  Serious  negligence,  which  causes  or  might  cause  unacceptable
loss, damage or injury
  Serious infringement of health and safety rules
  Serious  breach  of  confidence  (subject  to  the  Public  Interest
(Disclosure) Act 1998).
  Charge  of  a  criminal  offence  that  are  relevant  to  the  employee's
performance or contract of employment.
  Misuse of Public Office
  Serious breaches of Cafcass Policies and Procedures

As indicated earlier this list is not intended to be exhaustive.

3
Child Protection and Criminal Investigation

3.1
Where  an  employee  is  involved  in  a  child  protection  investigation,  police
investigation or criminal proceedings, Cafcass reserves the right to conduct
its  own  separate  internal  action  where  appropriate.  Advice  from  Human
Resources should always be sought regarding such matters.

3.2.1  While  involvement  in  the  above  outside  the  context  of  work  will  not
automatically  lead  to  formal  disciplinary  action,  the  manager  of  the
employee  involved  will  consider  the  gravity  and nature of  the  act  and  its
effect on the employee's suitability for his/her work within Cafcass.

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APPENDIX 3
Appeal Form

Cafcass APPEAL AGAINST FORMAL ACTION
Important:

If you wish to appeal against the formal action being taken against you, you must fill
in this form and send it to ........................…………………………………………………..
Within  10  working  days  of  the  date  of  the  letter  confirming  the  decision  of  the
Performance and Conduct Hearing.

  1.
What formal disciplinary action is being taken against you?


......................................................................................................................

  2.
Why are you appealing against this?


......................................................................................................................


......................................................................................................................


......................................................................................................................

(continue on separate sheet if necessary)

  3.
Your name:
...............................................................................................


Address:
...............................................................................................



...............................................................................................


Telephone No: (work)  ................................
(Home)
...................


Job title and grade:
......................................................................................


Region:

......................................................................................

  4.
Who (if anyone) is representing you in this case?


Name
of
work
place
colleague
or
trade
union
representative:

...........................................................................


(Union or organisation):
...........................................................................


Address:

...........................................................................



...........................................................................


Telephone No:
.........................................................................…………

  5.    Please confirm any dates when you are not available to attend a Hearing over the
next 20 working days.
            ……………………………………………………………………………………………….

          …………………………………………………………………………………………………
  You should talk to your representative if you have one before completing this form.

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APPENDIX 4

Managers With The Authority To Dismiss

Authority  to  dismiss  is  vested  in  the  post  not  the  person.  The  following  posts
have  the  ability  to  dismiss  employees  normally  within  their  area(s)  of
responsibility.  The Director of Human Resources should always be made aware
of a decision to dismiss before this is implemented.

The list is attached for guidance purposes only and is correct as at March 2004.


Board Chair

Chief Executive

Four Corporate Directors

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APPENDIX 5

Monitoring  And  Application  To  The  Court  In  Cases  Affecting
Children’s Guardians

Cafcass  is  responsible  for  protecting  the  interests  of  vulnerable  children  and
adults  involved  in  the  Court  system.  It  must  be  able  to  act  quickly  in  order  to
protect the interests of these vulnerable individuals.
Some employees may, in the course of their normal duties, be appointed by the
Court  as  a  Family  Court  Advisor  in  a  relevant  case  (“a  Children‟s  Guardian”).
This is subject always to the discretion of the Court.
In  the  event  that  Cafcass  becomes  concerned  about  the performance,  conduct
or capability of an Children‟s Guardian to carry out  his/her role  to the requisite
standards,  Cafcass  reserves  the  right,  pending  the  outcome  of any  disciplinary
process to:
  Inform  the  judge  and/or  clerk  to  the  justices  having  case  management
responsibility for each of the cases to which the Children‟s Guardian has
been appointed.
  Apply to the Court to suspend the Children‟s Guardian from all or some of
the cases in which the Children‟s Guardian is appointed;
  Refuse  to  allocate  any  further  work  to  the  Children‟s  Guardian  in
accordance  with  any  applicable  policy  until  the  concerns  over  the
Children‟s  Guardian‟s  performance,  conduct  or  capability  have  been
investigated in full under the applicable policy.
Prior to the applications set out above being made by Cafcass and determined
by the Court, Cafcass reserves the right to exercise its discretion to suspend the
Children‟s Guardian in accordance with the terms of Cafcass‟ Performance and
Conduct Policy and Procedures.

In the event that the Court does not agree to any application made by Cafcass to
suspend  the  Children‟s  Guardian  from  all  or  some  of  the  cases  in  which  the
Children‟s Guardian has been appointed, or does not agree to any other terms
and  conditions  required  by  Cafcass  in  order  to  supervise  the  Children‟s
Guardian‟s work effectively, or considers that it is not appropriate for the Court to
comment  on  such  matters,  Cafcass  reserves  the  right  to  alter  the  Children‟s
Guardian‟s  reporting  line,  increase  the  Children‟s  Guardian‟s  reporting
obligations  and/or  take  such  steps  as  it  considers  necessary  to  supervise  the
Children‟s Guardian‟s work and protect the interests of the service.

Any action taken by Cafcass in accordance with this Appendix will be a neutral
act and will not amount to a disciplinary sanction.

The  Children‟s  Guardian‟s  Operational  irector,  Director  or  such  other
employee(s)  as  Cafcass  may  designate  as  empowered  to  do  so,  will  have  the

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power to suspend the Children‟s Guardian, impose conditions on the Children‟s
Guardian‟s work and/or apply to the Court on the grounds set out above.

If the Children‟s Guardian has a bank contract with Cafcass under the Cafcass
Bank  Scheme  and  the  allegation(s)  of  misconduct  arise(s)  from  an  assignment
under  this  bank  contract,  Cafcass  reserves  the  right  to  suspend  the  Children‟s
Guardian from his or her bank contract as well as from his or her duties under
the main employment contract (on application to the Court where necessary) if it
deems it necessary to do so.

Whenever  Cafcass  has  notified  the  relevant  judge  and/or  clerk  to  the  justices
that  there  is  a  possible  performance,  conduct  or  capability  issue  with  an
Children‟s Guardian, Cafcass will also notify the relevant judge or clerk that the
matter is resolved.

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