Procedure for Dismissal for Some Other Substantial Reason (Ordinance 30)

Introduction
Procedural issues
Formal action
General
Appeals

1. Introduction

This procedure is designed to be used where it is believed that a member of staff should be dismissed and where the circumstances fall outside redundancy, conduct, capability or performance, ill-health, termination of a fixed-term contract, termination of employment during an initial service review period, or dismissal of a member of the clinical academic staff arising from the loss of registration, contract or status necessary for adequate performance in post.

Such a dismissal must be for some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held or because "the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment" (Section 98 of the Employment Rights Act 1996).

2. Procedural issues

2.1 University postholders and Appropriate Managers

For staff reporting within the academic school/faculty structure, references to Appropriate Manager shall usually be construed as referring to either the Head of School or School/Faculty Manager, but may in appropriate cases refer to a head of department or head of discipline. In support process areas, references to Appropriate Manager shall usually refer to either the Divisional Head, or in larger areas, other postholders within the line management structure as appropriate.

In this procedure, unless the context indicates otherwise, references to University postholders and Appropriate Managers shall be construed to refer either to the postholder or the Appropriate Manager or to an appropriate member of staff nominated by him or her to act with full authority on his or her behalf.

2.2 Confidentiality

Throughout any proceedings taken under this procedure, the University shall seek to ensure that a high standard of confidentiality is maintained, before and after the hearing as well as in relation to the hearing itself. Care shall be taken not to undermine the position of the member of staff concerned in relation to his or her colleagues. Investigations shall be undertaken with discretion. Where necessary to ensure confidentiality, administrative support shall be provided by Human Resources. Wherever practicable, hearings shall be held away from the member of staff’s normal place of work. None of this shall preclude information about the outcome being given to any person where this is appropriate.

2.3 Attendance at hearings

A member of staff who is subject to proceedings under this ordinance has the right to attend hearings and to be represented by an adviser, friend, trade union or other representative. If the member of staff is for good reason unable to attend a formal hearing, the hearing shall be adjourned to a suitable alternative date within a reasonable time. However if there are reasonable grounds to believe that the member of staff is refusing or failing to attend a hearing without good cause, the member of staff will be informed that a further hearing is being arranged. On that further occasion the University may proceed in the absence of the member of staff, unless satisfied that there are good grounds for his or her non-attendance. Any submission concerning non-attendance made by the member of staff in writing, or by his or her representative in person or in writing, shall be considered before any decision is taken to hear the matter in his or her absence. If the hearing proceeds in the member of staff’s absence, any submission made about the capability and performance by the member of staff in writing, or by his or her representative in person or in writing, shall be considered at the hearing.

3. Formal action

Where, with the approval of the Vice-Chancellor, the Human Resources Director is of the view that a member of staff should be dismissed for some other substantial reason, a panel shall be appointed to consider whether the member of staff should be dismissed.

In the case of a member of staff to whom Statute 32 applies, the Vice-Chancellor shall appoint to the panel three members with no prior involvement in the case, including a lay member of Council in the chair and a member of the academic staff appointed by Senate. Where the case concerns a member of the clinical academic staff, who is required to engage in clinical work or activities and for that purpose to be registered with the General Medical or Dental Council or similar body and/or to have an honorary or substantive contract or status with a National Health Service trust or similar body, then the panel may include, in addition to its other members, an appropriate representative of the National Health Service, appointed by the Chief Executive of the Avon, Gloucestershire and Wiltshire Strategic Area Health Authority or successor body.

In the case of a member of staff to whom Statute 32 does not apply, the dean or head of division shall appoint to the panel three members who have had no prior involvement in the case, nominating one of them as Chair.

The Deputy Secretary shall act as secretary to the panel, to give advice and to assist the panel, and shall arrange for a note of the proceedings to be taken. The panel may seek independent legal advice.

The Deputy Secretary shall appoint a member of the University staff or a lawyer to present the case against the member of staff. The Deputy Secretary shall ask the case presenter to set out the case in writing and this shall be sent to the member of staff at least seven working days before the hearing. Copies of any written witness statements shall be sent to the member of staff at least seven working days before the hearing.

Subject to the provisions of this ordinance and representations made by the member of staff, the order of proceedings at the hearing shall be at the discretion of the panel (Guidelines on procedure shall be issued from time to time). The panel shall rely only on written or oral evidence presented at the hearing. Normally evidence shall be given in person, by individuals who may be called by the case presenter, the member of staff or the panel. All such persons may be questioned by the case presenter, the member of staff or his or her representative, and members of the panel. The panel may accept a written statement in evidence where the member of staff agrees that the author of the statement need not attend, or where it is impracticable for him or her to attend, or where in the opinion of the panel it is for some other reason in the interests of justice to do so. The panel may ask for additional enquiries to be undertaken, and may call for additional persons to attend.

While every effort will be made to ensure that the member of staff is not rushed in the presentation of his or her case, the panel may impose reasonable time limits on oral addresses and submissions. The panel shall refuse to admit evidence that is, in its opinion, irrelevant to the issues raised. The panel shall have power to adjourn a hearing to another date. The panel shall ensure that the proceedings are dealt with expeditiously. It may set time limits for each stage of the proceedings, and may dismiss the case if there are undue delays by the University in taking the matter forward.

The panel may recommend to the Vice-Chancellor that no action is appropriate or that the member of staff should be dismissed with notice by the Human Resources Director. The panel shall find against a member of staff only if, on the evidence before it, it is satisfied that the case is proved. Normally a unanimous verdict will be expected, but if, exceptionally, the members of the panel cannot agree, the verdict of the panel shall be that of the majority of its members. The panel shall give a reasoned decision in writing, which shall be sent to the member of staff. The Vice-Chancellor, having consulted the Chair of the Human Resources Committee, has the power for good reason to suspend the activity of the panel, to stop the proceedings against the member of staff, or to require the proceedings or any stage of the proceedings to be concluded by a given date.

4. General

4.1 Trade union representatives

When formal proceedings are contemplated against an accredited representative of a trade union recognised by the University, the Human Resources Director will inform the Branch Chair, Secretary or full-time official of the Union of the circumstances before the hearing.

4.2 Academic freedom

Where members of staff are involved in teaching or research, whether or not they are covered by Statute 32, the University will safeguard their freedom within the law to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions, without suffering any detriment.

4.3 Clinical academic staff

Action may be taken under this procedure against a member of the clinical academic staff, whether on a substantive or an honorary contract, who is required to engage in clinical work or activities, and for that purpose to be registered with the General Medical or Dental Council or similar body and/or to have an honorary or substantive contract or status with an NHS trust or similar body, in respect of issues arising in connection with his or her NHS work or activities, as if the work or activities were performed in and for the University.

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5. Appeals

All appeals must be made in writing to the University Secretary within twenty working days of the date when the letter confirming the decision appealed against was sent. The appeal letter shall set out clearly the general grounds on which the appeal is based. A member of staff shall not normally be permitted to raise grounds at the appeal hearing if these were not raised in the original written appeal submission. An appeal may be made under this procedure after a member of staff has left the University following dismissal, however appeal proceedings may be suspended pending the outcome of an employment tribunal application.

Appeals shall take the form of a review. There shall be no entitlement to a rehearing of the case and witnesses may be called only with the appeal committee’s permission. Grounds for appeal include (1) new evidence which could not reasonably have been presented at the hearing at which the original decision was taken (2) that the original hearing was not conducted fairly or (3) that the original decision was unreasonable in the light of the findings of fact. The committee shall overturn the original decision if it considers it just to do so.

Council shall appoint a committee of three to consider the appeal, none of whom shall have had any prior involvement in the case. The committee shall include a lay member of Council as Chair, and, in the case of members of staff to whom Statute 32 applies, a member of the academic staff appointed by Senate. In addition in the case of members of staff to whom Statute 32 applies, the member of staff may request that an independent person from outside the University with relevant experience should sit as a fourth member of the committee. Where the appeal is made by a member of the clinical academic staff, who is required to engage in clinical work or activities and for that purpose to be registered with the General Medical or Dental Council or similar body and/or to have an honorary or substantive contract or status with a National Health Service trust or similar body, then the committee may include, in addition to its other members, an appropriate representative of the National Health Service, appointed by the Chief Executive of the Avon, Gloucestershire and Wiltshire Strategic Area Health Authority or successor body.

The University Secretary shall act as secretary to the appeal committee. The procedure shall be determined by the committee (Guidelines on procedure shall be issued from time to time). The member of staff may present the appeal in person, attend hearings and be represented by an adviser, friend, trade union or other representative. The University may be represented by a member of staff or lawyer. The committee may adjourn hearings, set time limits for stages of the proceedings, correct accidental errors and dismiss an appeal if there are undue delays in taking the matter forward. Every effort will be made to deal with the matter expeditiously. The committee shall give a reasoned decision in writing, which shall be sent to the member of staff and to Council.

Any dismissal under this procedure shall remain in force pending the outcome of an appeal. If the decision to dismiss is overturned, continuity of employment shall be restored.

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Approved by Council 2005, effective from 1.1.06

2 July 2010