Disciplinary Policy and Procedure Guidance Chief Officer

12. APPENDIX A – THE MODEL DISCIPLINARY PROCEDURE AND GUIDANCE – WALES (EXTRACT FROM CHIEF EXECUTIVES JNC HANDBOOK)

1.    Issues requiring investigation – (guidance)

1.1 The Local Authorities (Standing Orders) (Wales) Regulations.
  
1.1.1     The Local Authorities (Standing Orders) (Wales) Regulations 2006 (Regulation 8, and Schedule 4) require that no disciplinary action be taken against the chief executive other than in accordance with a recommendation in a report made by a Designated Independent Person (DIP). The definition of disciplinary action (Interpretation, Regulation 2) is wide. 

1.1.2     Disciplinary action: in relation to a member of staff of a relevant authority (county council or county borough council) means any action occasioned by alleged misconduct which, if proved, would, according to the usual practice of the authority, be recorded on the member of staff's personal file, and includes any proposal for dismissal of a member of staff for any reason other than redundancy, permanent ill-health or infirmity of mind or body, but does not include failure to renew a contract of employment for a fixed term unless the authority has undertaken to renew such a contract.
 
This definition would therefore include other reasons for dismissal such as capability or some other substantial reason including a breakdown in trust & confidence between the chief executive and the authority.
 
1.1.3     Therefore, although the definition refers to disciplinary action, it clearly requires that any action that could lead to a warning for misconduct or where there are circumstances which may result in a proposal for dismissal for any reason other than the following be covered by the process:

• Redundancy;

• Expiry of a fixed term contract;

• Retirement or termination on permanent ill-health grounds.

1.1.4     The attached Appendix 5d sets out those circumstances that could potentially result in dismissal and whether or not they are covered by this procedure.
  
1.2 Structures to manage the procedure 
 
1.2.1     A key feature of the Model Procedure is the specific roles envisaged by the IDC, the Appeals Committee and the council. Authorities will need to consider a number of important issues around the composition of committees and the delegation of appropriate powers.  In particular, it must be borne in mind that the appointment and dismissal of staff are non-executive functions. Therefore, these bodies have to be put in place by the council not the leader / Mayor or executive. 
 
1.2.2     The Welsh regulations require (Regulation 9 (1)) that when it appears that an allegation of misconduct which may lead to disciplinary action has been made against the head of paid service (chief executive) the authority must appoint a committee (“an investigation committee”) to consider the alleged misconduct. In this model the JNC envisages that for practical reasons, not explicitly set out in the regulations, this committee will have a wider function than performing only the initial investigation. For example, it will also receive the report of the Designated Independent Person, may make recommendations to full council, may take disciplinary action itself in some circumstances (in accordance with the regulations) and have a number of other functions such as powers to suspend the chief executive and appoint a Designated Independent Person, etc. It is therefore referred to throughout as the Investigating and Disciplinary Committee (IDC) (It does not matter what the committee is called locally, and it could for example perform other local functions. The important feature is that it has appropriate powers and resources to perform its role and responsibilities). It is also envisaged and strongly advised that authorities should have a standing committee rather than attempt to set one up only when an allegation arises. The IDC must be a politically balanced committee comprising a minimum of three members (Regulation 9 (2)) although an authority might wish to have a larger committee, particularly if this is necessary to achieve political balance. Where authorities operate a leader / cabinet or mayor / cabinet executive structure, this must include one member of the executive, but not more than half of the members of the committee are to be members of the executive. This Committee may need to be in a position to take decisions and appropriate actions as a matter of urgency. It may need to meet at very short notice to consider allegations and decide whether there is a case to answer and to consider whether suspension of the chief executive might be appropriate. It is also possible that in some circumstances members of the committee may find themselves in a position where they have a conflict of interest. It is therefore recommended that authorities take this into account when constructing the committee and its powers, including the quorum and substitutes. The role of the IDC is explained further at appropriate stages in the guidance.
 
1.2.3     The Appeals Committee is not stipulated in the Standing Orders Regulations but again has a practical purpose in relation to the procedure. Again, it must be a politically balanced committee, and it is strongly recommended that it be a standing committee. The number of members is not specified but it is suggested, as with the IDC that there is a minimum of three members but that an authority might wish to have a larger committee. The members of the Appeals Committee should not be members of the IDC. Where authorities operate an executive structure, this must include one member of the executive, but not more than half of the members of the committee are to be members of the executive. The Appeals Committee will have a more limited role. Its purpose will be to hear appeals against disciplinary sanctions short of dismissal and to take a decision either to confirm the action or to award no sanction or a lesser sanction. 
 
1.3 Managing access to the Model Procedure (see also paragraph 5.1)

1.3.1     The Model Procedure itself does not require that every single issue which implies some fault or potential error on the part of the Chief executive be investigated using this process. It is for the authority to decide the issues that will engage the Model Procedure.
  
1.3.2     Authorities will therefore need to consider what constitutes an ‘allegation’ made relating to the conduct or capability of the Chief executive and what it considers are other substantial issues requiring investigation. Clearly the route for complaints against the council and the chief executive and for issues that might be substantial and require some form of investigation, and possibly formal resolution, is varied. Ideally, procedures need to be in place which can filter out and deal with ‘allegations’ against the chief executive which are clearly unfounded, or trivial or can best be dealt with under some other procedure.
  
1.3.3     For example, allegations and complaints that are directed at the chief executive, but are actually complaints about a particular service, should be dealt with through the council’s general complaints procedure. If the matter is a grievance from a member of staff directed against the chief executive, it may be appropriate to first deal with it through the Grievance Procedure. Of course, if the matter were a serious complaint against the chief executive’s personal behaviour such as sexual or racial harassment, the matter would be one that would be suitable for an investigation under the Model Disciplinary Procedure.

1.3.3a     In some circumstances, the Council may consider that in order to clarify whether there is any substance to the allegation or complaint, preliminary initial inquiries should be undertaken before the Model Procedure is invoked. This would be particularly appropriate where the matter has been raised under another procedure such as a grievance and is not itself a disciplinary complaint. To enable this process to happen, the Council should nominate an officer, who would most appropriately be the Council’s Monitoring Officer, to manage this filtering process.
 
1.3.4     An authority will need to put into place arrangements that can manage the process. In particular, records should be kept of allegations and investigations and there should be a clear route into the Model Disciplinary Procedure. It could be, for example, that in the case of allegations against the chief executive, the monitoring officer, and the Chair of the IDC would oversee referrals to that Committee. Alternatively, some authorities might prefer that the role were performed by the HR Director.
 
1.3.5     Where the issue to be investigated is related to the sickness absence or capability of the chief executive in terms of performance, there is likely to be a link with the authority’s sickness procedure and appraisal / performance management procedure.
   
1.3.6    Where management action is required in respect of the normal sickness of the chief executive, the authority needs to be clear about who takes appropriate actions. Initially, it could be the normal management team of elected members or Director of HR (according to local procedures) who will follow the authority’s normal sickness absence procedures. Whoever is responsible will report to the IDC as appropriate to the matter being investigated – in particular where procedures have been followed to the point where dismissal appears to be a possibility (see flow diagrams Appendices W5a, 5b and 5c).
  
1.3.7     Any shortcomings in a chief executive’s performance can be better identified, and therefore remedied, at an early stage if there is an objective performance appraisal system in place as required by the JNC agreement (see Appendix 2). For a chief executive the system is likely to be linked to objectives in the authority’s Corporate Plan, or equivalent, and the performance objectives should be specific, measurable, achievable, realistic, and time related. It may, but will not necessarily, be the system against which pay progression is measured (see Appendix 5c).

2. Timescales – (guidance)

2.1 An important principle when taking disciplinary action is that the process should be conducted expeditiously but fairly. There is, therefore, a need to conduct investigations with appropriate thoroughness, to arrange hearings and allow for representation. It is not in the interests of the council, or the chief executive, that proceedings are allowed to drag on without making progress towards a conclusion.
 
2.2 Statutory and indicative timescales
 
The procedure does not set out explicit timescales except those specifically referred to in the Local Authorities (Standing Orders) (Wales) Regulations 2006 (as amended). In this guidance we also make reference to other statutory timescales and restrictions which are applicable to disciplinary procedures more generally, such as those contained in the Employment Relations Act 1999 (in connection with the right to be accompanied).
 
2.3 Avoiding delays in the procedure

One cause of delay in the procedure is the availability of the key people necessary to manage and control the process.

2.3.1 Availability of the Designated Independent Person (DIP) (see paragraph 6)
 
(a)    The Local Authority (Standing Orders) (Wales) Regulations 2006 require that the Designated Independent Person must be agreed between the council and the chief executive within 1 month of the date on which the requirement to appoint the Designated Independent Person arose otherwise a Designated Independent Person will be nominated by Welsh Ministers for formal appointment by the council. The practicalities of discussing and agreeing on the DIP is a matter which could be delegated to an appropriate officer, e.g., Monitoring Officer of HR Director. 
 
(b)    There is no provision in the Regulations on the amount of the fee to be paid to the DIP for their work. However, the Regulations do provide that the authority must pay reasonable remuneration to the DIP, including any reasonable costs. 
 
(c)    Where a decision has been taken to appoint a DIP, it is important that the authority move quickly to achieve this to adhere to the timescale set out in the regulations in (a) above but also due to the two-month time limit on suspension, this is also particularly important where the chief executive has been suspended.   
 
(d)    The regulations provide that it is the committee’s responsibility to appoint the Designated Independent Person. This would include agreeing the terms of remuneration and working methods for the Designated Independent Person.  
 
(e)    The JNC Joint Secretaries maintain a list of individuals who have the necessary knowledge and experience of local government issues to act at this level and in this capacity. The list is intended to provide a resource to local authorities. It also provides a way to help avoid unnecessary delays.    
 
2.3.2 Availability of the chief executive in case of sickness 
 
(a)    It is possible that the sickness of the chief executive could impact on the ability to continue the disciplinary procedure. This may be because:

• the issue under investigation is the chief executive’s sickness in itself (i.e. a capability issue); or alternatively.

• while during an investigation for another reason such as allegations about the chief executive’s conduct, the chief executive commences sickness absence during the disciplinary process.

(b)    In principle, the sickness of the chief executive will invoke the local authority’s normal sickness procedures. The nature of the investigation and facts surrounding the sickness will dictate the appropriate way of dealing with the issue. 
 
(c)    If the investigation is about the long-term sickness or frequent ill-health problems experienced by the chief executive the authority should have already obtained appropriate medical information and advice by following its local processes which would normally include referral to the authority’s occupational health adviser who would examine the chief executive and / or seek further medical information from the chief executive’s GP or any specialist dealing with the case. However, the IDC or Designated Independent Person may feel the need for further or more up-to-date advice and again they should use the authority’s normal processes and procedures to obtain this. If the chief executive’s absence or problems at work are as a result of a disability which places him / her at a substantial disadvantage compared to others without the disability, then the authority must consider and undertake reasonable adjustments in order to remove the disadvantage. The IDC must satisfy itself that this has been fully considered and that no further reasonable adjustments could be made which would remedy the situation.  
 
(d)    Where the issue under investigation is not health-related and is e.g. about the conduct of the chief executive and the chief executive then commences sickness absence then the approach will depend on the type and length of the illness and exactly when it occurs during the process. 
 
(e)    A short period of illness should not normally create a major problem although the timing of the illness can create difficulties if it coincides with scheduled meetings for investigating or hearing aspects of the case. If this occurs, then reasonable efforts should be made to rearrange the meeting. However, if the sickness becomes more persistent or is likely to become longer term then the authority will take steps to identify whether the chief executive, although possibly not fit to perform the full range of duties, is fit enough to take part in the investigation or disciplinary hearing.  
 
(f)    If it appears that there will be a long period of ill health which will prevent the chief executive taking part in the process, the authority and possibly the DIP will have to make a judgement as to how long to wait before proceeding. In some cases, it may be appropriate to wait a little longer where a prognosis indicates a likely return within a reasonable timescale. 
 
(g)    However, where this is not the case, the authority will in most cases need to press ahead given the importance of resolving issues which can have a significant impact on both parties due to the nature and high profile of the role of chief executive. If this is the case the authority should ensure that the chief executive is given the opportunity to attend any meetings or hearings. However, the chief executive should be informed that if they cannot attend the meetings or hearings then they would proceed without them. If this is the case the chief executive may make written submissions to be considered and may also send their representative to speak on their behalf before a decision is taken.
 
2.3.3 Availability of representative 
 
The availability of the chief executive’s representative can also be a possible cause of delay. Reasonable account should be taken of the availability of all relevant parties when setting dates and times of meetings. Where it is simply not possible to agree dates to suit everybody the authority needs to be aware of the statutory right for an employee to be accompanied at disciplinary hearings and to take this into account when setting dates (see Paragraph 4).

2.3.4 Availability of witnesses 
 
If the Designated Independent Person allows either party to call witnesses and the witnesses are unable to attend, their evidence should not be discounted and should still be considered. Alternatives may include written statements or minutes / records where individuals have been interviewed as part of the investigation. However, such evidence may not carry the same weight as evidence that can be subjected to cross-examination.
 
2.3.5 Availability of committee members 
 
(a)    It is recommended that, in addition to the requirements set out in paragraphs 1.22 and 1.23 in establishing the IDC and the Appeals Committee, authorities take availability issues into account and any operational quorum when considering the numbers of members to serve on these committees.   
 
(b)    It should be particularly borne in mind that the IDC might need to meet at short notice to consider serious allegations against the chief executive. 

 3. Suspension – (guidance)
 
3.1     Although suspension in order to investigate an allegation or a serious issue is not disciplinary action in itself it is a serious step in the process that should be managed well. Unlike with most other posts, the suspension of the chief executive may come immediately to the attention of the local and perhaps national media with potentially damaging consequences for the reputation of the chief executive and the authority.
   
3.2     Where a chief executive is suspended and facing allegations this is potentially stressful for the individual and disruptive to the council. It is therefore in the interests of the chief executive and the council that such cases are dealt with as expeditiously as possible.
 
3.3     Alternatives to suspension 
 
Suspension will not be appropriate in every case, as this will depend on the nature of the allegation or seriousness of the issue. Before suspending the chief executive, careful consideration should be given to whether it is necessary and whether there are any other suitable alternative ways of managing the situation, for example by agreeing particular working arrangements such as working from home for a period or working in some other way that protects the chief executive and authority from further allegations of a similar nature.
 
3.4 Power to suspend
  
(a)    The chief executive is the head of paid service and normally bears the delegated responsibility for implementing council policy on staffing matters. However, when it is the chief executive who is the subject of an allegation or investigation, the authority will need to be clear about who has the power to suspend the chief executive and in what circumstances.   
 
(b)    The point at which it may become clear that suspension is an appropriate action is likely to be at the stage where the IDC has conducted its initial assessment. The Model Procedure therefore provides for that Committee to have the power to suspend the chief executive. 

3.5 Short notice suspension
 
It remains preferable that the decision to suspend is taken by the IDC after consideration of the allegation. However, the Model Procedure also recognises that in exceptional circumstances it may be necessary to suspend at very short notice and before the IDC can meet, e.g. because the remaining presence of the chief executive could be a serious danger to the health and safety of others, or a serious risk to the resources, confidential information or reputation of the authority. It may also be necessary if the continuing presence at work of the chief executive might compromise the investigation or impair the efficient exercise of the council’s functions.
  
The Council should have in place a formal arrangement setting out which individual or individuals would hold the authority to suspend in such exceptional circumstances and to establish any associated protocols. It might be possible for a smaller sub-committee to meet more quickly but alternatively this task may fall to an officer. Ordinarily, given their role in relation to propriety and lawful actions of the authority, the JNC would expect the council’s Monitoring Officer to be a suitable person to make such a decision after consultation with, for example, the Chair of the IDC.
  
However, there may be rare cases in which both the Chief Executive and Monitoring Officer (and sometimes other senior managers) have been implicated in disciplinary investigations at the same time, so, for purely pragmatic reasons, the Council should consider whether its arrangements also include other suitable individuals.
   
Any decision to suspend at short notice should be confirmed by the IDC (or other appropriate Committee) at the earliest possible opportunity.

3.6 Suspension protocols
 
a)    If suspension was deemed appropriate, the IDC (or in exceptional circumstances, the person or persons with appropriate authority taking the decision to suspend) would also be the appropriate body to agree or authorise any protocols which are necessary to manage the suspension and the investigation. For example, the chief executive might request access to workplace materials and even witnesses. Arrangements should be made to manage such requests and facilitate appropriate access. Another general principle would be that whilst suspended, the chief executive would remain available to participate in the investigation and to attend any necessary meetings. Therefore, other important issues would include communication channels for day-to-day communication and any stipulations for reporting any scheduled or unscheduled absence from the area, e.g. pre-arranged holiday.  
 
3.7 Time limits on suspension
  
a)    Where the chief executive is suspended The Local Authorities (Standing Orders) (Wales) Regulations 2006 (Regulation 8, Schedule 4) specify that any suspension for the purposes of investigating the allegation must be on full pay and terminate no later than 2 months from the day the suspension takes effect. This period can be extended by the Designated Independent Person who also has the power to vary the terms on which any suspension has taken place. 

b)    Where a chief executive is suspended and it is decided that a Designated Independent Person shall be appointed, the authority must look to a speedy appointment. It is not always easy to identify and agree terms with a Designated Independent Person and any delay in commencing the process could create the danger that the 2-month period may expire before a DIP is in place. The regulations indicate that the chief executive would then be entitled to return to work. If such a situation arises it would be preferable to try to reach an agreement with the chief executive on an alternative to them returning to the office until the Designated Independent Person has been appointed. 

4. Right to be accompanied – (guidance)

4.1    Although the statutory right to be accompanied applies only at a disciplinary hearing, the JNC Model Procedure provides for the chief executive to be accompanied at all stages by their trade union representative or some other person of their choice, at their own cost.

4.2     The Model Procedure recognises that there may be, in exceptional circumstances, a need to suspend the chief executive at short notice, when it is not possible to arrange for their trade union representative to be present. These circumstances might include for example where there is a serious risk to the health and safety of others or serious risk to the resources, information, or reputation of the authority.
 
4.3     Although it would be beneficial to agree dates for the necessary meetings required, the Procedure cannot drag on owing to the unavailability of a representative. The statutory right to be accompanied in a disciplinary hearing contained in s.10 of the Employment Relations Act 1999 applies only to hearings where disciplinary action might be taken or be confirmed. That is to say when a decision may be taken on the sanction, or a decision may be confirmed during an appeal. In this model procedure the statutory entitlement to be accompanied would arise:

• Where the IDC considers the report of the Designated Independent Person and provides the chief executive with the opportunity to state their case before making its decision.

• during any appeal against a decision made by the IDC.

• At a council meeting considering a proposal for dismissal and also fulfilling the requirement relating to a right of appeal.

4.4     At these important stages (IDC receiving the report of the DIP and any appeal against the decision taken by that Committee), if the chief executive’s trade union representative is unavailable for the date set, then the chief executive will have the right under the provisions of the Employment Relations Act 1999, to postpone the meeting for a period of up to one week.   

4.5     If the representative is unable to attend within that period the authority will have the right to go ahead with the hearing without further delay, although reasonable consideration should be given to arranging an alternative date.

5. Considering the allegations or other issues under investigation – (guidance)

5.1     The range of issues and to some extent the seriousness of the issues, which come before the IDC, will depend on the result of the initial filter that the council adopts. Issues such as those relating to sickness absence and performance are likely to arise at the IDC having followed the authority’s sickness absence or performance management / appraisal procedures (see paragraph 1.3).
  
5.2     It is possible in some cases that with some minimal investigation the IDC can dismiss the allegation without even the need to meet with the chief executive. However, the Model Procedure deals with situations where the matter is not so easily dismissed. It therefore provides a process whereby the chief executive is made aware of the allegations and provided with the opportunity to challenge the allegations or to make their response. The IDC has a number of specific powers. It:
  
(a)    may make such enquiries of the chief executive or any other person it considers appropriate.

(b)    may request the chief executive or any other person it considers   appropriate to provide it with such information, explanation or documents as it considers necessary within a specified time limit, and

(c)    may receive written or oral representations from the chief executive or any other person it considers appropriate. 
 
5.3     When an issue comes before the IDC it needs to make a judgement as to whether the allegation can be dismissed or whether it requires more detailed investigation by a Designated Independent Person (DIP). The regulations (Reg 9 (2)) require that the Committee must make its decision within 1 month of its appointment to consider the allegation. As the procedure envisages a standing committee in place to consider allegations, we believe that the 1 month period would begin to run from the date that the ‘allegation’ was put to the Committee for consideration. 

5.4     The appointment of a Designated Independent Person is a serious step but does not mean that the chief executive is guilty of any misdemeanour. In some cases, the outcome of the investigation will be to absolve the chief executive of any fault or wrongdoing. The appointment of a Designated Independent Person operates independently so that both the authority and the chief executive can see that matters are dealt with fairly and openly. However, the matter still needs to be handled carefully in public relations terms due to the potential damage to the reputation of the chief executive or the local authority. 

5.4.1 Threshold test for the appointment of a DIP 
 
Cases will vary in complexity but the threshold test for the IDC in deciding whether to appoint a Designated Independent Person is to consider the allegation or matter and assess whether:
  
• if it were to be proved through an independent investigation, it would be such as to lead to the dismissal or other action which would be recorded on the chief executive’s personal file; and

• there is evidence in support of the allegation sufficient to require further investigation. 
  
5.4.2 Conducting the initial IDC Investigation 
 
(a)    It is intended that the initial assessment as to whether the ‘threshold test’ has been met is conducted by the IDC as expeditiously as possible with due regard to the facts of the case. At this stage it is not a fully detailed investigation of every aspect of the case as that will be the responsibility of the Designated Independent Person (if appointed). However, it is important that before any decision is taken to appoint a Designated Independent Person the chief executive is aware of the allegations that have been made against him / her (or the issue to be addressed) and given the opportunity to respond. 
     
(b)    This will be achieved by: 
 
• The IDC writing to the chief executive setting out the allegations / issues and providing any evidence to be considered.

• Providing the opportunity for the chief executive to respond to the allegations in writing and to provide personal evidence or witness evidence.

• Providing the opportunity for the chief executive to appear before the IDC and to call witnesses.  
 
(c)    Fair notice should be given to enable the chief executive adequate time to prepare an initial response to the allegations or issues under investigation. During the initial assessment by the IDC, the chief executive is entitled to attend and can be accompanied by a representative (subject to paragraph 2.3.3 and paragraph 4). 
 
(d)    Having assessed the available evidence and in the light of the chief executive’s initial response to the matter the IDC must then decide whether the ‘threshold test’ has been met. If that is the outcome the IDC must then arrange for the appointment of a Designated Independent Person. 

5.4.3 Treatment of witness evidence

In general, if the authority has witness evidence relating to an allegation this should be presented to the chief executive, although in exceptional cases it might be appropriate to anonymise the evidence in order to protect the identity of a witness. However, it remains important that the detail of the allegation is put to the chief executive in order that he / she understands the case against him / her.
  
5.4.4 Conflicts of interest  
 
(a)    The model procedure envisages, and it is strongly recommended that the authority take steps to establish, a standing IDC. Paragraph 1.2.2 indicates the basic rules concerning its membership. However, because a standing committee will comprise named councillors, there may be occasions when this presents problems of conflict of interest, for example where a member of the committee is a witness to an alleged event or is the person who makes the original complaint or allegation. Councillors in this position should take no part in the role of the Committee, although they will of course be able to give evidence, if required. The authority should attempt to construct its committees, established quorums, and substitution rules in order to minimise the likelihood of an individual conflict of interest delaying the procedure. Where a number of members find themselves in a prejudiced position, there may be no alternative but for the council to establish a new Committee to perform the function of the IDC. 
 
(b)    Declarations of interest are matters for individual councillors who are required to follow the authority’s Code of Conduct for Members and can seek advice from their Monitoring Officer or Standards Committee. The efficient management of the process could be compromised if the chief executive considers there are valid grounds for making a formal complaint to the Public Services Ombudsman for Wales about the involvement of a councillor in a case. 

5.4.5 Maintaining the fairness and integrity of the procedure

Where there is a matter that requires investigation, it is important that a fair and correct procedure is followed. Allegations against the chief executive or serious issues that require resolution should follow the Model Procedure. It is important that councillors do not undermine the fairness of the procedure by for example putting motions to full council about the case as there is a serious risk that it could prejudice the disciplinary procedure. Similarly, it is important that councillors do not engage in public discussion of the disciplinary action while the investigation and other elements of the process are under way. Additionally, such actions will not only create adverse publicity for the authority and the chief executive but may create conflicts of interest and could limit the role that those councillors can then take as the case progresses.

5.4.6 Other appropriate actions 
 
(a)    It could be that when faced with an issue, whether it be an allegation of misconduct, or connected with the capability of the chief executive, or some other substantial issue, the IDC might be in a position to consider alternatives to immediately moving to the appointment of a Designated Independent Person or alternatively to dismiss the allegation or issue.  
 
(b)    Clearly this will depend on the facts of the matters being investigated. It could be that the authority has another more appropriate policy or procedure to follow. Alternatively, it could be that the issue is one which might benefit from some mediation or attempts to resolve the particular issue in dispute prior to moving to appointing a Designated Independent Person.  
 
(c)    It is possible at any stage to consider the mutual termination of the contract and sometimes this will be a suitable alternative for all concerned. This might particularly be the case where relationships are breaking down but there is no evidence of misconduct on the part of the chief executive. The Joint Secretaries could be available to assist (see Appendix 4). 
 
(d)    If any financial settlements are considered, it is important that such an arrangement: falls within current regulations governing such matters. 
 
(e)    The Local Government (Early Termination of Employment) (Discretionary Compensation) (England and Wales) Regulations 2006 are designed to enable a local authority to compensate employees whose employment terminates on grounds of redundancy or in the interests of the efficient exercise of the authority’s functions. It is therefore possible that a payment will be legitimate in certain circumstances. However, where there is an obvious case requiring disciplinary action and the allegation is such that dismissal is a likely outcome, it is not likely that a District Auditor will sanction a deal under the current regulations. 
 
(f)    The authority must take appropriate legal advice when attempting to reach a financial settlement to ensure that any payment is justified. Relevant considerations will include the likelihood of the claim succeeding and the amount of compensation that could be awarded by a Court or an Employment Tribunal.

5.4.7 Power to agree financial settlements 
 
There needs to be clarity about who has authority to negotiate and/or agree a settlement. Generally, unless the authority wishes all decisions to be taken by full council, it is important that the authority should have or put in place a delegation to a committee or officer to negotiate and agree any financial settlement. In authorities operating the executive and leader model, nonexecutive functions cannot be delegated to an individual member or to the executive. Authorities also need to ensure that they comply with relevant legislation and statutory guidance (Pay Accountability within local government) and with any relevant provision in the authority's pay policy statement under section 38 of the 2011 Act. 
 
5.4.8    Access to appropriate professional / independent advice  
 
(a)    Conducting an investigation into allegations or serious issues involving the chief executive can be demanding on the individuals involved. The IDC (and the Appeal Committee and council) will have access to the local authority’s officers but given the closeness of relationships between the chief executive and the other senior officers this can be a difficult time for those required to advise the Committee, to conduct investigations internally, or to source advice from outside the authority.  

(b)    The authority should ensure that the IDC has powers to appoint external advisers as appropriate. Useful sources of general advice on the operation of the procedure and assistance with conducting investigations include the Local Government Association by contacting the Employers’ Secretary info@local.gov.uk or from the Welsh Local Government Association wlgahr@wlga.gov.uk or ALACE alacehonsec@yahoo.co.uk or SOLACE http://www.solace.org.uk/ – Solace – Great People Make Great Places
 
In addition to this general advice and assistance, given the potential complexity of the issue, authorities might also require access to their own legal advice. 
 
5.4.9 Ill-health - medical advice
  
In cases of capability related to sickness or where during the course of any other investigation, the ill-health of the chief executive results in their unavailability it will be important that the Investigating and Disciplinary.
 
Committee has access to appropriate medical advice from the council’s Occupational Health provider (see paragraph 2.3.2).
    
5.4.10 Performance
 
(a)    Where the issue is one of capability in terms of performance or competence, other than ill-health, the council will need to be in a position to establish or demonstrate the nature of the concerns. Evidence will be necessary in order to justify a further investigation.

(b)    This might come from a variety of sources, e.g. performance appraisal records, inspection reports, etc. Where the council follows an established appraisal / performance management process, this can also provide an appropriate route to establishing issues suitable for referral to the Investigating & Disciplinary Committee (see Appendix 2). 

5.4.11 Breakdown of trust and confidence
 
Where the issue is breakdown of trust and confidence, the council will need to be able to establish that the fault for the breakdown could reasonably be regarded as resting solely or substantially with the chief executive. 
 

6. Appointment of a Designated Independent Person - (guidance)
 
6.1 Where a decision has been taken to appoint a Designated Independent Person it is important that the council moves quickly to achieve this. The Regulations provide that the authority and the chief executive must agree on a DIP within 1 month of the decision to appoint one. This may also be particularly important if the chief executive has been suspended because of the two-month time limit on suspension (see paragraph 2.3.1).
  
6.2 The IDC is responsible for appointing the Designated Independent Person. This will include issues such as the terms of remuneration and working methods.
  
6.2.1 Terms of reference – allegations or issues to be investigated 
 
(a)    When appointing the Designated Independent Person, it is important that they are provided with terms of reference. The DIP will need to be: 
 
• aware of the precise allegation(s) or issue(s) to be investigated.

• provided with access to sources of information and people identified as relevant to the case.

• aware of expectations regarding timescales and any known factors which could hinder their investigation, e.g. the availability of key people.  
 
(b)    The IDC will be responsible for providing this information. It will also be in a position to discuss timescales for the Designated Independent Person’s investigation. The Committee must, after consulting the Designated Independent Person, attempt to agree a timetable within which the DIP is to undertake the investigation. Where there is no agreement, the DIP must set a timetable which he / she considers appropriate. 

6.2.2 Remuneration 
 
(a)    There is no provision in the Regulations that stipulates the rate of remuneration to be paid to the Designated Independent Person for their work. However, the Regulations do provide (Regulation 9 (10)) that: 
 
‘A relevant authority must pay reasonable remuneration to a designated independent person appointed by the investigation committee and any costs incurred by, or in connection with, the discharge of functions under this regulation.’

(b)    This is a fairly broad obligation on local authorities. One issue that has caused delay and failure to appoint in some cases is the issue of providing the Designated Independent Person with an indemnity. Some DIPs may decline to accept the role unless the authority indemnifies them against any future legal costs arising from the role performed. There has been a difference of opinion as to whether the DIP should have insurance in their own right to cover such an eventuality, or whether the council should provide this or indeed whether it has the power to do so. In the opinion of the CLG, at the time of implementation, this issue is to all intents and purposes resolved by the wording of Regulation 9(10), i.e. that the Regulations require the council to bear all of the costs of the DIP incurred by him / her in, or in connection with, the discharge of his / her functions under this Regulation.  
 

7. The Independent Person investigation – (guidance)

7.1 Resources

The amount of time required to be spent on the investigation will depend on the case. Due to the demands on their time, the DIP could decide to delegate some of the investigation work to an assistant. This should be agreed with the IDC and the chief executive should be informed. If the work is delegated to someone else outside of the authority this might also require further discussion on any difference in the terms of remuneration for the assistant to the Designated Independent Person.
   
7.2 Working arrangements
  
7.2.1 Once appointed it will be the responsibility of the Designated Independent Person to investigate the issue / allegation and to prepare a report:
  
• stating in his / her opinion whether (and, if so, the extent to which) the evidence he / she has obtained supports any allegation of misconduct or other issue under investigation and

• to recommend any disciplinary action which appears to him / her to be appropriate for the council to take against the head of paid service / chief executive 
 
7.2.2 The IDC must, after consulting the Designated Independent Person, attempt to agree a timetable within which the DIP is to undertake the investigation. Where there is no agreement, the DIP must set a timetable which he / she considers appropriate.

7.2.3 The Regulations only require the Designated Independent Person to investigate and report to the council. The methodology should be confirmed with the parties. However, the JNC believes that the Designated Independent Person should operate on the basis of a combination of independent investigation using his / her powers to access information, and a formal hearing, at which details of the allegations and supporting evidence are stated by the authority’s representative and where the chief executive is given the opportunity to respond.
  
7.3 Power to extend suspension 
 
7.3.1 The Regulations provide that suspension of the chief executive for the purposes of investigating the issue should last for no longer than two months.
  
7.3.2 The DIP does not have the power to suspend the chief executive, and neither is his / her permission required in order to suspend the chief executive. However, the Regulations provide that where the authority has suspended the chief executive, the Designated Independent Person has the power to direct:
  
• that the authority terminates the suspension.

• that the suspension should continue beyond the two-month limit.

• that the terms on which the suspension has taken place must be varied. 

7.4 Confidential contact at authority 
 
7.4.1 Although the Designated Independent Person has a degree of independence, it is advisable to agree some protocols for his / her investigation in order that disruption to the council’s work is kept to a minimum at what can be a difficult time. The Designated Independent Person will also require agreed contact and reporting arrangements with the parties. It is recommended therefore that the council designates an officer to administer the arrangements.
 
7.4.2 During the investigation the Designated Independent Person will as a matter of principle, make every attempt to ensure the appropriate confidentiality of any information obtained and discussed.

8. Receipt and consideration of Designated Independent Person’s report by the IDC - (guidance)
 
8.1 Report of the Designated Independent Person
  
The requirement is that the Designated Independent Person makes a report to the council and sends a copy to the chief executive simultaneously. In the JNC procedure it is envisaged that the report be made to the IDC which will have delegated powers from the authority to receive the report and take a decision on the outcome. Unless the chief executive is exonerated by the report then at this stage the chief executive should be given the opportunity to state his / her case before the committee makes its decision.
  
8.2 New material evidence
 
Where there is, at this stage, new evidence produced which is material to the allegation / issue and may alter the outcome, the IDC may:
 
• take this into account in making their decision or

• request that the Designated Independent Person undertake some further investigation and incorporate the impact of the new evidence into an amended report.
  
The way the evidence is taken into account will depend on its nature. The introduction of new evidence in itself cannot be used to justify a more serious sanction than recommended by the Designated Independent Person. If this is a possibility, the Designated Independent Person should review his / her decision taking into account the new evidence.
 
8.3 Recommendations by the DIP - outcomes or options

8.3.1 The Regulations require the Designated Independent Person to recommend any disciplinary action that appears to be appropriate. At this stage clarity is to be welcomed and a clear reasoned decision is preferable. However, it could be that there is not one obvious action, and it may be that the Designated Independent Person recommends a range of alternative actions. In this case the IDC would need to select the action to be taken.
 
8.3.2 Whilst the DIP’s role is to make recommendations on disciplinary action, he / she may wish to comment on potential options for the way forward following the DIP process.
 
8.4 Decision by the IDC
    
The Committee is required to take a decision on the basis of the Designated Independent Person’s report. It is always open to the Committee to impose a lesser sanction than that recommended but it cannot impose a greater sanction. 

9. Action short of dismissal – (guidance)
 
Where the decision taken by the Committee is action short of dismissal the action will be taken by the Committee itself. There is no requirement to seek confirmation by the council. The constitution of the IDC will need to include the delegated power to take disciplinary action in these circumstances. 
 

10. Where the IDC proposes dismissal – (guidance)
 
10.1 Where the Committee proposes dismissal, the Regulations require that the council must approve the dismissal before notice of dismissal is issued.
  
10.2 Executive objections procedure 
  
10.2.1 Although previous statutory guidance referred to conducting an executive objections procedure in authorities operating leader / cabinet and mayor / cabinet constitutions this is not required.
  
10.3 The role of The Council
  
10.3.1 The Regulations require that where there is a proposal to dismiss the chief executive, the council must approve the dismissal before notice of dismissal is issued. The Council must therefore consider the proposal from the IDC and reach a decision before the chief executive can be dismissed.
  
10.3.2 Given the thoroughness and independence of the previous stages, in particular, the investigation of the Designated Independent Person it will not be appropriate to undergo a full re-hearing of the case. Instead, consideration by the council will take the form of a review of the case and the recommendation to dismiss.
  
10.3.3 The chief executive will have the opportunity to be accompanied by their representative and to put forward his / her case before a decision is reached. 

11. Appeals – (guidance)
 
11.1 Appeals against dismissal 
 
11.1.1     Discipline and Grievance at Work - The ACAS Guide  requires that an employee who has been dismissed is provided the opportunity to appeal against the decision.
 
11.1.2     As the Standing Orders Regulations require that the council approves the dismissal before notice of dismissal is issued, there might be some concerns about the ability to offer a fair appeal if the whole council was already familiar with the issues and had already taken the decision to dismiss. The model procedure therefore envisages that the council meeting fulfils the requirement for an appeal. Before the council takes a decision on the recommendation to dismiss the chief executive it will take representation from the chief executive. Those representations will constitute the appeals process.
 
11.2     Appeals against action short of dismissal
  
11.2.1     Appeals against actions short of dismissal will be heard by the Appeals Committee. The appeal hearing will take the form of a review of the case and the decision that was taken by the IDC.
  
11.2.2     This process should follow the procedure that the local authority applies generally to its other employees.