CL:AIRE aims to help Project Teams understand what the rules and procedures are for the CL:AIRE Definition of Waste: Development Industry Code of Practice (DoW CoP) and how they are to be used to manage disciplinary and grievance situations which may arise, either during or after a project.
Fairness and transparency must be promoted through clear, specific rules and procedures.
Where formal action is needed, it must be reasonable, fair and justified depending on the circumstances.
This will be achieved by consideration of the following:
- CL:AIRE and Project Teams must raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions;
- CL:AIRE and Project Teams must act consistently;
- CL:AIRE must carry out any necessary reviews, to establish the facts of any situation arising and
- CL:AIRE must inform Project Teams of the basis of any problem(s) and give them an opportunity to put their case in response before any decisions are made.
In the usage of this Disciplinary & Grievance Procedure:
- Complainant means any person or persons who have made a written allegation of improper conduct (for example see section 6) against a Project Team using the DoW CoP.
- Respondent means the Project Team against whom a written allegation of improper conduct has been made to CL:AIRE.
- Project Team refers to a group of multiple organisations or singular who are using the CL:AIRE Definition of Waste: Development Industry Code of Practice.
- An Investigation Panel is a panel which may comprise a member of the CL:AIRE Executive team and a representative (or nominated representative) of the Environment Agency (EA) or Natural Resources Wales (NRW), depending on the geographical location, that is appointed to decide whether or not there are grounds for a detailed examination of a specific allegation made by the Complainant against a Project Team.
- A Disciplinary Panel is a panel comprising not less than one representative of the CL:AIRE Executive, one representative of the EA / NRW and an independent representative Qualified Person (QP), convened for the purpose of a Disciplinary Meeting. Disciplinary Panel members will not have acted on the Investigation Panel.
- A Disciplinary Meeting is a hearing organised by the Disciplinary Panel, at which the Complainant and Respondent are invited to present their case.
- A Review Meeting is a meeting which may be held in advance of a Disciplinary Meeting with the Qualified Person to help establish the facts of any complaint.
- An Appeal Panel acts in the event of an appeal to the decision of the Disciplinary Panel and can uphold or overturn or vary.
Establishing the facts
A complaint that a Project Team has behaved contrary to the expected manner required by the DoW CoP, must be submitted in writing to CL:AIRE outlining the details. Such a complaint can be made by any individual or organisation and this procedure will be followed to its conclusion.
Complaints will be reviewed by the Investigation Panel, which may –
- dismiss the complaint,
- seek to resolve the issue without requiring more formal procedures, or
- decide to hold a Disciplinary Meeting.
In coming to its decision, the Investigation Panel may call for submissions from either the Complainant or the Project Team / Organisation or both.
It is important to carry out necessary reviews of disciplinary matters without unreasonable delay when establishing the facts of the situation. In some cases this will require holding a Review Meeting with the Project Team before proceeding to any disciplinary meeting. In others, the review stage will be the collation of evidence by CL:AIRE for use at any Disciplinary Meeting.
Inform the Project Team of the problem
If it is decided that there is a disciplinary case to answer, the Project Team should be notified of this in writing as soon as practicable. This notification will contain information about the alleged misconduct or poor performance to enable the Project Team to prepare to answer the case at a disciplinary meeting.
The Respondent and the Complainant shall be notified of the process by which the allegations are to be dealt with.
The Respondent shall be given 21 working days from the date by which CL:AIRE informs of the details of the allegations made by the Complainant, to respond in writing to the allegations (including submitting evidence). No response will automatically trigger the need for a Disciplinary Meeting.
Hold a Disciplinary Meeting with the Project Team
Meetings will be held without unreasonable delay whilst allowing the Project Team adequate time to prepare their response. CL:AIRE shall give 21 days notice of a Disciplinary Meeting. The notice shall be issued in writing and shall outline the allegations. Reasonable steps will be taken to agree a convenient date, time and location for the meeting and arrange any special needs of the required attendees (online meeting facilities may be used if most convenient for all parties).
The following steps will be taken prior to a disciplinary panel meeting:-
- CL:AIRE will inform the Project Team of the names of the disciplinary panellists in the notice given.
- The Project Team will have the right to flag concerns they might have with the individuals nominated for the Disciplinary Panel e.g. prior interactions, points of conflict.
- Equally, the individuals nominated will be informed of the Project Team name(s) who are being called to the meeting and should self-exclude themselves for any of the same reasons.
- CL:AIRE will assess these concerns, and if necessary appoint an alternative individual.
- No further information will be released to any party until no conflict has been confirmed.
The Project Team will make every effort to attend the meeting, at which CL:AIRE will explain the complaint against them and present the evidence that has been gathered. The Project Team will be allowed to set out their case and answer any allegations that have been made. The Project Team will be given a reasonable opportunity to ask questions and present evidence or witnesses.
Allow the Project Team to be accompanied at the meeting
The Project Team has the right to be accompanied by no more than one representative or advisor. They must be agreed in advance of the meeting with CL:AIRE for practical purposes e.g. venue size, accessibility. A request to be accompanied should provide enough time for CL:AIRE to make the necessary arrangements with regards venue size and facilities for the companion’s attendance at the meeting.
The companion should be allowed to address the meeting, to put and sum up the Project Team case, respond on behalf of the Project Team to any views expressed at the meeting and confer with the Project Team during the meeting. The companion does not, however, have the right to answer questions on behalf of the Project Teams, nor address the meeting if the Project Team does not wish it or prevent CL:AIRE from explaining their case.
The Project Team may submit supplementary evidence to the Disciplinary Meeting. This must be received by the Disciplinary Panel not less than 5 working days before the date set for the meeting.
The Disciplinary Panel will determine the procedure to be followed in the presentation of the documentation prior to, during, and in the conduct of the meeting. The decision of the Disciplinary Panel will be final in such matters in determining the conduct of the meeting which shall be in accord with natural justice.
The Disciplinary Panel shall consider the case, may call for independent technical advice, and shall determine whether the complaint against the Respondent has been made out or not.
The Panel may reach a decision in absentia if a Respondent refuses to attend the meeting.
Decide on appropriate action
After the meeting, the Disciplinary Panel will decide whether or not disciplinary or any other action is justified and inform the Project Team accordingly in writing.
If the finding is that the complaint has been made out, the Panel may:
- Issue the Project Team with a written warning and provide advice as to future conduct including requiring training or mentoring; or
- Issue the Project Team with a written warning & suspend them from using the DoW CoP for a specified period and give advice as to future conduct including requiring training or mentoring; or
- Permanently refuse future use of the DoW CoP by the Project Team.
Where misconduct is confirmed, or the Project Team is found to be performing unsatisfactorily, it is usual to give them a written warning and inform the relevant regulator. A further act of misconduct or failure to improve performance within a set period would normally result in a final written warning.
A first or final written warning should set out the nature of the misconduct or poor performance and the change in behaviour or improvement in performance required (with timescale). The Project Team shall be told how long the warning will remain current.
The Project Team shall be informed of the consequences of further misconduct, or failure to improve performance, within the set period following a final warning. For instance that it may result in restriction of future use of the DoW CoP.
If a Project Teams first misconduct or unsatisfactory performance is sufficiently serious (termed gross misconduct), it may be appropriate to move directly to restriction of future use of the DoW CoP without notice for a first offence. This might occur where the Project Teams actions have had, or are liable to have, a serious or harmful impact on the DoW CoP.
A decision to restrict future use of the DoW CoP should be taken by the CL:AIRE Board of Trustees. The Project Team be informed as soon as possible of the reasons for the dismissal, the date on which their use of the DoW CoP will end, and the appropriate period of notice. The restriction will apply to the organisation(s) in question, not individuals e.g. should individuals move to a different organisation not involved, the restriction will not apply to them.
The Respondent has the right to appeal on the following grounds:
- that additional evidence (which was not available at the time of the hearing) has subsequently become available and that this evidence could have materially affected the decision of the Disciplinary Panel;
- that the provisions of this procedure were not followed in a material respect resulting in prejudice to the Respondent's ability to defend themselves;
Any appeal shall be made in writing to the CL:AIRE Executive, setting out the grounds, to be received within 21 days of the date of notification of the decision of the Disciplinary Panel. An appeal shall include any new evidence if this ground is relied upon.
Upon receipt of an appeal, the CL:AIRE Executive shall appoint an Appeal Panel to consist of three appropriate persons (for example members of the CL:AIRE Technology & Research Group, Trustees, legal advisor) who may not include any person who was a member of the Investigation Panel or Disciplinary Panel sitting for the case in question.
The Appeal Panel shall consider the appeal and shall determine whether the decisions of the Disciplinary Panel should stand in whole or part or not. Generally the Appeal Panel will deal with matter based on written representations by the appellant.
The decision of the Appeal Panel, which may be taken by simple majority, shall be binding and shall be communicated to the CL:AIRE Executive. Such a decision may be to uphold, overturn or vary the decision and/or sanction of the Disciplinary Panel shall be final.
The CL:AIRE Executive shall inform the Respondent and the Complainant in writing of the decision of the Appeal Panel.
Confidentiality and Making the Decision Known
The proceedings of the Investigation Panel, Disciplinary Panel and Appeals Panel shall remain confidential to the CL:AIRE Executive and members of the Panels and shall not be disclosed to third parties, other than to the Respondent and Complainant, their representatives and regulators (EA / NRW) who may notify HMRC.
Where the final decision results in the complaint being upheld and restriction of future use of the DoW CoP, the outcome may be made public on the CL:AIRE website.
Where a complaint is found not to be upheld, the proceedings and outcome will not be made public unless the Respondent specifically requests this.
Non-exhaustive list of actions that could trigger this procedure -
- Persistent submission of supporting documents not generally according with best-practice documents referenced in the DoW CoP e.g. CLR 11, BS 10175:2011+A2:2017.
- Materials Management Plans demonstrably not followed or appropriately redeclared.
- Verification Report(s) not submitted to CL:AIRE.
- Use of DoW CoP in restricted scenarios.
- Application of fees at Receiver sites not associated with costs of applying DoW CoP without regulator liaison.
- Retrospective use of the DoW CoP.
- Beginning works before a Declaration receipt is issued.