NHSLA / HSE / IGT etc.): N/A
Natasha Elvidge, Associate Director of Workforce
1.2 May 2008 N/A Date when version 1.2 came into effect Keith Loveridge 2.1 September 2012 Minor Equality impact assessment added General update and change of wording Louisa Batchelor 2.2 June 2015 Minor Minor update on wording Added that new evidence can be introduced at an appeal meeting HR must be present for all appeals Louisa Batchelor
3.0
June 2016
Minor Changes to right of appeal for right to work and registration issues Changes to timescales Changes to clarify what should be in appeal letter
Jennifer Wallbank 4.0 June 2020 Minor Grounds of appeal and outcome of appeal added. Purpose of appeal and what is needed clearly defined, duties and responsibilities of member of staff added. Panel composition guidance. John Wall 4.1 October 2021 Minor Roles and responsibilities appeal chair/panel and changes to the appeal panel John Wall 4.2 April 2022 Minor Extended Review date to July 2023 John Wall 4.3 January 2024 Minor Review of Current Policy Lauren McEvoy
Kingsdocs
No
Daily Bulletin Intranet news item Kwiki page
Keywords: Appeal
Table of Contents
1 Introduction
2 Definitions
3 Scope and Purpose
4 Roles and Responsibilities
5 Appeals- Legal and Professional Restrictions Outcomes
6 Process for Appealing
7 Appeal Hearing
8 Appeal Panel
9 Appeals Process
10 Appeal Decision
11 Monitoring Arrangements
12 Associated Documents
Appendix 1: Flowchart 12 Appendix 2: Checklist for the Review and Approval of Trust-Wide Policies
1. INTRODUCTION
King's College Hospital NHS Foundation Trust recognises that on occasions, employees will need to formally exercise their right to appeal formal employment decisions. The Trust aims to provide a simple, fair and independent system to respond to appeals in line with the values of King's College Hospital NHS Foundation Trust.
This policy applies to all employees directly employed by King's College Hospital NHS Foundation Trust.
2. DEFINITIONS
An appeal is a request from a n employee to reconsider a formal decision reached by a manager under a Trust employment policy.
3. SCOPE AND PURPOSE
3.1 This document outlines the procedure to be followed when an appeal is submitted by a n employee, ensuring that their case is heard promptly and in accordance with the procedure set out.
3.2 The purpose of an appeal / hearing is to ensure that formal decisions under Trust procedures are fair and reasonable and that correct processes are followed before the decision was made. The appeal process does not re -hear the case.
3.3 This policy will apply in any circumstance where one of the Trust's employment policies includes the right of appeal.
3.4 The outcome of the appeal may be:
- The employee's appeal is upheld or partially upheld. - The original decision is upheld and the appeal is dismissed as not upheld. - Remit the decision for a full re -hearing by an appropriate panel. In certain cases, there may be a need to commission a review of the original investigation. - The panel substitutes a lesser penalty than the original decision in the case of disciplinary outcomes.
The Appeals Policy does not affect the arrangements agreed concerning the performance or capability of Medical and Dental employees which are managed under Maintaining High Professional Standards for Medical and Dental employees.
4.0 ROLES AND RESPONSIBILITIES
Employees - Submit appeal within specified time frames and evidence, clearly outlining grounds of appeal. - Attend formal hearing and arrange representation attendance where required. - Follow requirements as set out in this policy. Managers - Managers must be familiar with and comply with the requirements of this policy. - Managers should ensure they adhere to the principles outlined in this policy. - Managers to ensure that all appeal hearings are conducted in an appropriate manner and cases receive a thorough hearing. People Directorate - People Directorate should provide guidance and advice on the appropriate and timely application of the policy. - The People Directorate representative will act as an advisor to the Chair of the hearing or panel. - People Directorate to ensure the consistent application of the policy. Appeal Chair/Panel - The Appeal Chair is responsible for ensuring the Appeal Hearing is held in accordance with this policy, including adherence to timescales. - The Appeal Chair is also responsible for ensuring the Appeal Hearing process and any decision made is fair and reasonable taking into consideration all the relevant facts and circumstances of the case. Staff Side - Staff Side Representatives to monitor the effectiveness of the policy. - To raise with the Head of Employee Relations where issues are of concern in an appropriate manner. - To contribute to the review and development of the Policy. - To advocate on behalf of employees across the Trust.
5.0 APPEALS -LEGAL AND PROFFESIONAL RESTRICTIONS OUTCOMES
5.1 Any employee who is dismissed because of a legal restriction on their continued employment with the Trust (for example work visa restrictions, professional registration restrictions, criminal proceedings / convictions etc.) must be able to produce the acceptable right to work or registration documents as part of their appeal. Where employees are unable to produce the relevant documentary evidence then it is unlikely that their appeal will be successful.
5.2 In cases where employees are subject to criminal proceedings or bail restrictions which impact on their employment or ability to attend an Appeal Hearing, then the hearing will proceed in their absence.
6.0 PROCESS FOR APPEALING
6.1 An employee who wishes to appeal a decision from a formal process / policy must submit their appeal in writing or email to the appropriate manager within 14 calendar days of the date of the letter confirming the formal sanction / decision. Submissions should clearly set out the grounds of their appeal.
An appeal may be made on the following grounds: - A procedural error - The decision was unfair and unreasonable - That further new material information has come to light which, had it been known by the panel at the time of the hearing, may have affected the panel's decision. This must be information that was unavailable at the original hearing or meeting and is pertinent to the case.
Appeals that are submitted outside of these timescales will be considered out of time and will not be permitted to proceed.
6.2 Appeal hearing does not rehear the whole case but review s those aspects, which employees believe resulted in incorrect or unfair conclusions.
7.0 APPEAL HEARING
7.1 On receipt of the appeal, the manager or Chair of the panel who made the original decision at the formal hearing should be made aware of the appeal and will need to complete an Appeal Management Statement of Case responding to the grounds of the appeal, explaining the reasons for their decision. See Management Guidance.
7.2 An appeal Hearing will be set up within a reasonable time frame, normally within four weeks, unless there are exceptional circumstances. See Management Guidance.
7.3 The employee will be formally invited in writing to the Appeal hearing with at least 7 calendar days' notice. Where possible, t he Appeal Management Statement of Case will be sent out with the invitation to the Appeal Hearing to the employee and all panel members . When the Appeal Management Statement of Case is not shared with the Appeal Hearing invitation letter, it will be provided to the employee and all panel members with at least 7 calendar days' notice.
7.4 The employee has the right to be accompanied by an accredited Trade Union representative or a workplace colleague employed by the Trust.
7.5 A People Directorate Representative who has not had any previous involvement will act as secretary to the Appeal Hearing and will advise the Chair.
7.6 If an employee fails to attend an Appeal Hearing without appropriate notification or good reason, then the Appeal Hearing may proceed in their absence or the employee will be deemed to have withdrawn their case.
8.0 APPEAL PANEL
Disciplinary, Capability and Sickness Absence Appeals
8.1 Appeals against the outcomes of Disciplinary, Capability and Sickness Absence Hearings will be heard by two suitably experienced senior managers who had not had any previous involvement in the case or any conflict of interest that could influence their dec ision-making. The panel will be supported / advised by an People representative who will act as the secretary to the panel.
8.2 For dismissals, the Chair of the Appeal hearing will be a Band 8D or above and will be more senior than the Chair of the original Hearing. A different People representative will be present to support the panel. The panel will be diverse in representation where appropriate.
8.3 To uphold fairness and inclusivity in the appeal process, the appeal panel should be representative of the diversity of the workforce and the staff member making the appeal.
8.4 For other appeals, for instance appeals against formal warnings, the Chair will be a member of the Care Group Triumvirate and / or Directorate Senior Leadership Team.
Early Resolution Appeals and Appeals against the Outcome of Flexible Working Request and Career Break
8.5 Appeals against the outcome of an early resolution investigation/Formal Resolution Hearing and appeals against the outcome of a flexible working request and career break will be heard by a senior manager or equivalent, Band 8B or above, as Chair.
The Chair will be senior to the manager who made the original decision and often their manager. representative People Directorate representative will be present to support the Chair and will act as the secretary to the panel.
8.6 There is no right of appeal against the outcome of an Early Resolution investigation / Formal Resolution Hearing to individuals who are no longer employed by the Trust at the date of the Commissioning Managers decision / outcome.
9.0 APPEAL PROCESS
9.1 The Chair will be responsible for ensuring that the employee has the opportunity to state their case and have their appeal heard. The manager who heard the original case will also attend and present their management statement of case and be given the opportunity to explain their original decision / sanction. Both
sides will have the opportunity to question each other and the Chair / appeal panel will also have the opportunity to question both sides.
9.2 The appeal is a review of the original decision, and new information that has not been heard at the original hearing will not normally be considered. However, the Chair will have wide discretion as to how the appeal is run. In general, if any new evidence is introduced, the Chair will require the employee to explain the relevance and reasons why it is being presented at the appeal hearing, rather than previously. See Management Guidance.
10 APPEAL DECISION
10.1 The final decision as to whether or not to uphold the appeal rests solely with the Chair, after taking account of the second panel member (in dismissal cases) and the views of the People Directorate Representative.
10.2 The outcomes available to the Chair are:
- The employee's appeal is upheld or partially upheld. - The original decision is upheld and the appeal is dismissed as not upheld. - Remit the decision for a full re-hearing by an appropriately constituted panel. In certain cases, there may be a need to commission a review of the original investigation. - The panel substitutes a lesser sanction than the original sanction / changes the original decision
10.3 The outcome of the appeal hearing will be confirmed in writing within 7 calendar days of the hearing.
Following the outcome of the Appeal Hearing there are no further appeal stages in the Trust's processes and the matter will be closed.
11 ANTI-DISCRIMINATION STATEMENT
King's College Hospital NHS Foundation Trust is dedicated to embracing the broad diversity of our staff, patients and communities and stand firmly against all forms of prejudice and discrimination.
Our commitment extends to all protected characteristics under the Equality Act 2010 as well as other vulnerable groups. We expect every employee to respect and uphold this in relation to all our trust policies, practices, and procedures.
It is against the law to discriminate against anyone because of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race (including colour, nationality, ethnic or national origin), religion and belief, sex, and sexual orientation.
Discrimination towards our staff or patients, in any form, is strictly prohibited. This includes, but is not limited to, racism, ableism, homophobia, biphobia, transphobia, sexism, ageism, religious discrimination, and any other prejudiced behaviour that undermines the rights, wellbeing and identity of our staff, and patients.
Discrimination can be displayed in various forms including, but not limited to, language, behaviours, unequal treatment, harassment, exclusion, stereotyping, or denying access to opportunities.
We embrace our duty to address discrimination in all its forms, and we pledge to:
- listen to the voices and lived experience of colleagues and patients, and other groups who suffer discrimination or lack of fair representation - commit to working towards removing inequalities within our Trust, including differences in access, experience and outcomes for our diverse patient groups - turn that commitment into positive action and real change - use our voice and influence within the wider system to address the wider social determining factors of health - accept our responsibility to listen to, and learn from, the experience of all underrepresented groups - listen with respect and genuine curiosity, acknowledging that continued action and resource is required to bring about the change we need to see - ask all colleagues to work with us to remove unfairness and discrimination within our organisation and within our wider communities
12 MONITORING ARRANGEMENTS
Measurable policy objectives i.e. what will be monitored Monitoring/ audit method Frequency of monitoring Responsibility for performing the monitoring Monitoring reported to groups/committees inc. responsibility for action plans
Monitor via grievance cases, disciplinary & ETs for cases reported under the Public Disclosure Act
Monitor ER cases through the annual ER data
Annual
Associate Director of Human Resources
Partnership Committee HR Department
Yearly informal review of concerns
Partnership Committee Agenda item
Yearly
Chair of Partnership Committee
Partnership Committee
13. ASSOCIATED DOCUMENTS
- Capability Policy - Disciplinary Policy and Standards of Conduct - Early Resolution Policy - Flexible Working Policy - Organisational Change Policy - Raising Concerns (Whistleblowing) Policy - Sickness Absence Policy - Special Leave Policy - Career Break Policy - Reasonable Adjustments Policy
APPEAL SUBMITTED - Submitted within 14 calendar days of outcome - Clealy set out grounds of appeal - Acknowledgement of appeal APPEAL RESPONSE - Manager who made original decision to compile the appeal management statement of case. - Appeal hearing arranged APPEAL HEARING - Employee formally invited, provided with at least 7 calendar days' notice - Entitled to be accompanied - Panel hears appeal and opportunity to question APPEAL DECISION - Upheld/Partially Upheld - Not upheld - Full re-hearing - Original sanction changed - Outcome confirmed in 7 calendar days & no further right to appeal
Appendix 1: Flowchart
EQUALITY RISK ASSESSMENT FORM Name of Policy / Project / Function
Appeals Policy Date of Assessment 4th August 2023 What are the aims of this project, policy, function, and or service?
The policy puts in place a framework and guidance which ensures that all policies have been applied fairly and consistently and employees are given the opportunity to appeal against the outcome of a formal process. Who could be affected by this proposal? (e.g. applicants, employees, customers, service users, members of the public)
All employees based within the Trust. Which policies are related to or referred to as part of this assessment? There are a number of policies which are referred to and associated with the Appeals Policy and they are: - Capability Policy - Disciplinary Policy and Standards of Conduct - Early Resolution Policy - Flexible Working Policy - Organisational Change Policy - Raising Concerns (Whistleblowing) Policy - Sickness Absence Policy - Special Leave Policy - Career Break Policy
How will the impact on people be assessed? (e.g. consultations forums, meetings, data collection) By ensuring fair and consistent use and application of the Appeals Policy. Reviewing the use and application of the Appeals Policy through our Peer Review Meetings within the Employee Relations Team.
Please include available Equality Data relating to the use or implementation of this policy, project, function or service?
(e.g. Care Group breakdown, WRES, WDES, Sexual Orientation monitoring standard, Patient Feedback, Workforce data etc.)
Over the course of the last 12 months, we have had the following Appeals that have taken place.
15 Appeals over a 12 month period (01 January 2023 - 31st December 2023). A range of individuals protected characteristics have accessed the Appeals Policy.
Which stakeholder consultations have been included in the development or implementation of this policy, project, function or service?
This policy is not a new Policy and has been reviewed in line with Trust requirements. The Policy has been shared with the Employee Relations Team, wider Workforce teams within the People Directorate and Managers within the services who utilise this policy.
What are the potential impact/s of implementing this policy, project, function or service on people who share protected characteristics as listed below?
Protected Characteristic: Neutral
Age (People of all ages)
X Appeals no. Appeals % Overall no. Overall % 17-26 0 0% 1,416 10% 27-36 0 0% 5,300 36% 37-46 6 40% 3,526 24% 47-56 7 47% 2,775 19% 57-66 2 13% 1,559 11% 67-76 0 0% 169 1% 77+ 0 0% 11 0.1% Total 15 100% 14,756 100%
The above data shows that the 37-46 and 47-56 age groups are over-represented in appeal cases. However, as overall numbers are low the impact has been defined as "neutral".
What are the potential impact/s of implementing this policy, project, function or service on people who share protected characteristics as listed below?
Protected Characteristic: Neutral
Disability (Mental, Physical, and Carers of Disabled people)
X Appeals no. Appeals % Overall no. Overall % No 14 93% 11,914 81% Not declared 1 7% 1,223 8% Unspecified 0 0% 1,158 8% Yes 0 0% 459 3% Total 15 100% 14,756 100%
The representation of disabled colleagues involved in the appeals process broadly reflects the diversity of the Trust, the impact is therefore defined as "neutral". The data is based on the information that is held on the Electronic Records System (ESR). Gender Reassignment
X This data is not captured in our ER tracker system. Marital Status (Married and Civil Partnerships)
X This data is not captured in our ER tracker system. Pregnancy and Maternity X This data is not captured in our ER tracker system.
What are the potential impact/s of implementing this policy, project, function or service on people who share protected characteristics as listed below?
Protected Characteristic: Neutral
Race (All Racial Groups)
X Appeals no. Appeals % Overall no. Overall % BAME 5 33% 7,527 51% White 9 60% 5,523 37% Not stated/unknown 1 7% 1,706 12% Total 15 100% 14,756 100% The representation of BAME colleagues involved in the appeals process broadly reflects the diversity of the Trust, the impact is therefore defined as "neutral".
What are the potential impact/s of implementing this policy, project, function or service on people who share protected characteristics as listed below?
Protected Characteristic: Neutral
Religion or Belief
X Appeals no. Appeals % Overall no. Overall % Christianity 8 53% 7,053 48% Do not wish to disclose 0 0% 1,866 13% Atheism 2 13% 1,689 11% Not recorded 3 20% 1,101 7% Islam 0 0% 1,031 7% Other 0 0% 718 5% Hinduism 1 7% 681 5% Buddhism 1 7% 373 3% Sikhism 0 0% 177 1% Judaism 0 0% 43 0.3% Jainism 0 0% 24 0.2% Total 15 100% 14,756 100% The representation of religion or belief broadly reflects the diversity of the Trust, the impact is therefore defined as "neutral".
Sex (Men and Women Includes non-binary)
X Appeals no. Appeals % Overall no. Overall % Female 11 73% 11,022 75% Male 4 27% 3,734 25% Total 15 100% 14,756 100% The representation of gender broadly reflects the diversity of the Trust, the impact is therefore defined as "neutral".
What are the potential impact/s of implementing this policy, project, function or service on people who share protected characteristics as listed below?
Protected Characteristic: Neutral
Sexual Orientation (Lesbian, Gay, Asexual, Bisexual, and Straight)
X Appeals no. Appeals % Overall no. Overall % Heterosexual/ Straight 10 67% 11,001 75% Not stated 4 26% 1,957 13% Not recorded 0 0% 1,096 7% Gay or lesbian 1 7% 447 3% Bisexual 0 0% 229 2% Undecided 0 0% 15 0.1% Other sexual orientation 0 0% 11 0.1% Total 15 100% 14,756 100% The representation of sexual orientation broadly reflects the diversity of the Trust, the impact is therefore defined as "neutral".
Including but not limited to social economic factors (i.e. poverty and or isolation), caring responsibility, unemployment, homelessness, urbanisation, rurality, health inequalities, and new arrivals.
Including but not limited to social economic factors (i.e. poverty and or isolation), caring responsibility, unemployment, homelessness, urbanisation, rurality, health inequalities, and new arrivals.
ERA Action Planning Form Action Plan Owner:
Commencement date:
FOR EQUALITY DIVERSITY AND INCLUSION TEAM Date of Assessment: (dd/mm/yyyy)
Arfan Bhatti Date of review
30 April 2024