Section K. Conduct and Discipline
b. DISCIPLINARY PROCEDURE
K b 1-5
1. General. Under the constitution of the National Whitley Council, the Staff Side may properly make representations on procedural matters and on general principles underlying disciplinary action. The Staff Side are not, however, entitled to discuss or negotiate on in- dividual cases as such. This is because discipline is a managerial function, not a negotiable condition of service (but see paragraph 7 (d).)
2. Discipline is a matter for the head of the department and derives from two responsibilities. First is the general responsibility to Parliament, and second is the responsibility of the Accounting Officer to the Public Accounts Committee. It follows that heads of departments must have disciplinary powers over the agents employed under them, for unless they have the powers to admonish, reprimand, penalise, and in the last resort dismiss those agents, they cannot in any real sense be responsible for the conduct of business in their departments. On occasion, where there is a conflict of evidence, or where the case is unusually complex, depart- ments may find it expedient to set up a small departmental board to advise the head of the department. The boards' functions should be confined to ascertaining the facts, sifting the evidence, and reporting its conclusions to the head of the department, but the decision as to the appropriate penalty rests with the head of the department, although the board might advise what the penalty should be.
3. The treatment of offences, particularly of offences against good order and discipline which are not criminal offences, will be affected both by the circumstances of the department and by the circumstances of the particular case, including the officer's record. There is no rigid code automatically assigning particular penalties to particular offences. Minor offences will properly be dealt with by the immediate superior officer on the spot by oral reprimand; frequent repetition of a minor offence or offences may become a serious matter and may call for a heavier penalty.
4. The disciplinary penalties which are available to heads of departments are as follows:
(a) formal reprimand;
(b) stoppage of future increment, or forfeiture of an increment or increments already earned; (c) monetary payments, either by way of fine, or by way of restitution (in whole or in part)
of loss or damage caused by the offender;
(d) disciplinary transfer to another locality, in which case the offender may be required to
meet his own removal expenses;
(e) suspension with loss of pay;
(f) down-grading, including removal from a post attracting additional pay or allowances; (g) retirement with an abated pension (this applies when the offender is already over the
minimum age
of retirement, or is dealt with under Section 9 of the Superannuation Act, 1965);
(h) dismissal without pension or gratuity.
5. Procedure in serious disciplinary cases. It is essential that a clear distinction should be drawn between charges which may lead to criminal proceedings and charges which, although so serious that they may lead to the dismissal of the offender, are not of a criminal nature. In any case where it appears that a criminal offence may have been committed it is important that departments should seek early advice from their own prosecuting staff, where available, or from the Director of Public Prosecutions. Other cases should be investigated and provided no evidence is forthcoming during the investigation that a criminal offence may have been committed they should be dealt with on a disciplinary basis. If there is any doubt about a possible criminal offence, the police or Director of Public Prosecutions should be consulted immediately. The Director of Public Prosecutions is ready to give informal advice if requested, but, under Regulation 1(b) of the Prosecution of Offences Regulations, 1946 (SR and O No. 1467/1946) he has a duty to institute criminal proceedings in any case referred to him by a Government Department in which he considers it right to do so.
Estacode Vol. 2/Amendment No. 501, August, 1969
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6. If it appears to a Disciplinary Board, having regard to the evidence called before them, that a criminal offence involving serious moral turpitude or dishonesty may have been committed in addition to the charge which the Board investigates, it is open to the board to deal with the disciplinary charge and to state that the question of prosecution is being considered independently. A Disciplinary Board should not deal with a matter which appears to be a criminal offence, as this would give the appearance of encroaching upon the function of the Courts.
7. When a serious charge, other than one which may give rise to criminal proceedings, is brought against an officer, the following procedure should be adopted:
(a) The officer should be given, in advance, a written statement defining the charge and
setting out particulars of the facts relied upon to support the charge.
(b)
(c)
The officer should be required to submit within a reasonable time a written reply to the charge made against him, but in cases where there is a conflict of evidence between the charge and the officer's written reply the officer may, if he so desires, represent his case orally.
The officer, in such circumstances, will have the right to represent his case orally before a suitable officer of his department, other than his immediate superior, and normally at least two grades above his own. In the case of departments with large provincial staffs this officer would necessarily often be a local officer and not an officer from headquarters. (d) In representing his case orally the officer should be allowed, if he so desires, to have the assistance of a friend or colleague (who may be an association representative) present with him.
(e)
These enquiries should not be conducted with undue formality and while there is no standard practice which would be applicable to every case, it is emphasised that the board is not exercising a legal function, but rather ascertaining the facts. It follows that the hearing before the board does not affect an officer's right of ultimate appeal to his head of department in the matter of the penalty.
8. Suspension from duty. Separately from suspension as a disciplinary penalty (see paragraph 4) an officer may be suspended from duty for a period which cannot be determined in advance, as a necessary precaution while enquiries are being made into an offence or while a prosecution is pending. Suspension should be imposed only where a serious charge is sup- ported by strong prima facie evidence.
9. In strict law, suspension without actual dismissal does not disentitle a servant to his salary unless it is so provided in his contract of service or in some recognised usage known to the servant either by regulation or otherwise. Departments are therefore recommended to incor- porate the following regulations in their staff rules:
"(a) An officer may at any time be suspended from duty if, in the opinion of the Head of his Department, that course is desirable in the public interest in consequence of the officer being arrested or having civil or criminal proceedings or charges of irregularity or misconduct brought or made against him.
(b) Where an officer is suspended his remuneration in respect of any period of suspension may, if the Head of the Department shall so decide, be withheld wholly or in part so long as such suspension continues.
(c) On the termination of the period of suspension, whether by dismissal or reinstatement of the officer, his remuneration in respect of the period may if the Head of the Depart- ment shall so determine after consideration of the whole of the circumstances of the case, be forfeited wholly or in part."
* 10. In all cases under paragraph 8 it should be borne in mind that prolonged suspension without pay may result in financial hardships to dependants; furthermore an offender may be tempted to continue on the downward path, whereas if he is treated with consideration there may be a real chance of reformation. Every case, therefore, should be reviewed by a senior officer at an early date, and in any event not later than one month from the start of suspension, to see whether the alleged offender or his dependants are likely to suffer grave hardship if no
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K b 10-14
pay is issued. The officer concerned should be given an opportunity of stating his financial position and appealing for some interim payment of salary; and such applications should be dealt with urgently. When no loss to public funds is involved, the question of granting pay wholly or in part is one for departmental decision. When a loss to public funds is involved, Civil Service Department sanction is required for making any payment, unless the amount of the loss is within delegated powers of write-off.
11. Dismissal. Civil servants hold their positions at the pleasure of the Crown, and it has been said judicially that every contract of service between the Crown and its servants must be assumed to be subject to, or to have imported into it, the term that the Crown may dismiss its servants at pleasure. Any provision in a contract which purported to override the pre- rogative in this respect would be void in law. The prerogative is inherited in the Crown and does not derive its force from and is not set out in any Statute or order in Council.
12. On dismissal for any offence involving any loss to public funds, any sums unpaid in respect of salary or wages up to the date of dismissal, or of income tax overpaid on salary, may, and normally should, be withheld as a set-off against the loss. Inland Revenue should be notified of any sums so withheld in respect of income tax refund, and at the same time be requested to withhold the repayment of any overpayment of tax. Any such notification or request should be sent to the Secretaries' Office, Inland Revenue, Somerset House, London, W.C.2.
13. Appeal. Except in the case of a decision to dismiss (see paragraph 14) an officer has a right of appeal to the head of his department, which may be exercised after the disciplinary decision has been communicated to him.
14. Once the decision to dismiss has been taken, the officer has the right of appeal to an independent Appeal Board (see Section K c). Dismissal should not take place until the Appeal Board has reported to the head of the department; the time limit for appeal has expired; or it is clear that the officer does not intend to appeal. The level at which a decision to dismiss should be taken must be clearly laid down in each department, and should not normally be below Assistant Secretary level. The head of the department may prefer not to be associated with the decision (except in the case of a very senior officer where he will inevitably have to take the decision himself). He will then be able to consider the advice of the Appeal Board without having been involved earlier in the decision to dismiss.
Estacode Vol.2 (Amendment No. 631, August, 1972
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