New disciplinary code for civil service because it was so difficult to fire or even discipline under-performing workers

A NEW disciplinary code for the civil service was introduced because it was proving so difficult to manage under-performance, and almost unheard of for someone to actually get fired for sub-par work.

The new code, which will come into full effect in January, comes after a major review found the old regime was no longer fit for purpose.

Internal documents obtained under FOI reveal how managers found the old code “complex and lacking clarity”. They said it was cumbersome, difficult to operate effectively and that the disciplinary process had far too many steps and stages.

A briefing document explained how there was an incredibly low number of employees cited for underperformance as part of the Performance Management and Development Scheme (PMDS) in place throughout the public service.

“Dismissals solely as a result of underperformance do not generally [take] place,” it explained.

This was because there were so many “serious weaknesses” in the existing code and managers ended up reluctant to take any action at all.

Even when employees were being investigated for “serious misconduct”, managers ran into extreme difficulties in sanctioning them.

The briefing document for the renewal of the code said departments and public bodies had difficulty in determining how to go about an investigation.

There were difficulties in coming up with a reasonable timeframe and little guidance available where there is a “frustration of the process or there are criminal proceedings taking place”.

The appeals process, through the Disciplinary Appeals Board, was also criticised because under-performing or misbehaving workers were allowed to appeal both before and after they were sanctioned.

The document explained: “In addition, the Board can make recommendations to remedy what they believe to be too harsh a sanction.

“This presents a challenge where a remedy such as transferring an individual rather than dismissing them can be nearly impossible for an employer to deliver.”

It even said there were significant issues with getting rid of employees who were entirely incapable of doing their job in the first place.

“They may have been dealt with as an underperformance case. However, the reality is that they are not able to bring performance up to the required level for the role,” it explained.

“In these circumstances discipline is not appropriate and a policy under which people can be exited due to incapacity or capability should be put in place.”

The briefing document also explained how many managers were reluctant even to try to discipline or deal with underperforming staff.

It said they feared demoralising other staff, lacked the confidence to go through the process, or had previously tried disciplining somebody without success. These managers were said to have “no appetite to repeat this experience”.

Some staff were also using weaknesses in the code to take advantage, particularly one which allowed their record to be scrubbed clean after six months.

In some cases, they were given a verbal warning but if their performance improved over the next six months, the warning would be stricken from their file.

“They have had the satisfactory improvement in the six months’ timeframe and the record of the warning has been removed only for them to repeat shortly after the ‘offence’ or unwanted behaviour only to go back to Stage 1 again,” it said.

They said this happened throughout the disciplinary process and the person “rarely gets to the ultimate sanction”.

In other instances, managers would end up under scrutiny after starting the disciplinary process because the employee involved would file a grievance or go out on long term sick leave.

In one case, an employee escaped discipline on a technicality because under the rules, they were entitled to be given a copy of the disciplinary code at every single stage of the process.

“A case was lost because the Department did not furnish the staff member with the Code at each stage,” it said.

In a ministerial submission, the low rate of dismissals for disciplinary matter or under-performance was also highlighted.

Over the course of seven years, 32 people had been dismissed from their jobs, of whom 25 resigned before they could be sacked.

Figures for how many cases were shot down by the Disciplinary Appeals Board also reveal that of 63 appeals made from 2007 to 2015, 23 were not upheld.

An internal memo also reveals there were difficulties in agreeing new policies on under-performance with a “fundamental difference” between management and staff on how it would be introduced.

The Department of Public Expenditure said in a statement: “We know that to get the best from our workforce, effective management of performance across the sector, in addition to career-long investment in learning and development supports, is needed.”

They said the new code was part of developing a “stronger framework for managing underperformance and disciplinary issues” and was required based on feedback from staff and managers over the “perceived failure to manage underperformance”.

You can read the most interesting of the documents below. If anybody is interested in seeing the rest of the material, feel free to contact me and I can forward on.

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