Many businesses were already in the throes of disciplinary and grievance procedures and when Covid-19 hit, and the initial Government restrictions came into force on the 23rd of March, most employers paused these processes as there were other priorities to deal with.
Many employees were put on furlough or began working from home however, employers are now wondering if it is safe to resume or conclude these processes or deal with any new issues which are arising as employees return to work.
Whilst in the early stages of this crisis there was a great deal of uncertainty, guidance has now been issued by ACAS to confirm the position.
If employees are furloughed:
ACAS guidance suggests that if someone is currently on a period of furlough they can still participate in a disciplinary or grievance hearing or investigation without this interrupting their period of furlough leave, including if they are the subject of the hearing, acting as chair, minute taker or witness. This is as long as they’re doing it out of their own choice (‘voluntarily’) and it takes place inline with current public health guidance. Whilst we do not have any official clarity from the government or the HMRC that participating in formal hearings during a period of furlough is allowed under the Coronavirus Job Retention Scheme (without breaking the period of furlough or affecting an Employers ability to claim), ACAS are an independent public body funded by the Government and is the leading authority on all things relating to employment.
Whilst an employee is furloughed it is important to remember that you cannot ask your employee to do any work that:
- makes money for your organisation or any organisation linked or associated with your organisation
- provides services for your organisation or any organisation linked or associated with your organisation.
Businesses should also consider the personal circumstances of the employees who are working from home or on a period of furlough. For example, if they are self-isolating or have childcare responsibilities whilst schools remain closed.
Practically, it may be challenging to conclude a formal hearing whilst employees are on furlough as they may not have access to other staff members or information at their workplace in order to prepare their case. This should be carefully considered when deciding if it is appropriate to continue or to postpone the formal process.
Subject to an employee agreeing to participate, the hearing should place in line with the current public health and Government guidance.
Carrying out a meeting
There is no doubt that the Coronavirus Pandemic has resulted in businesses looking for new and innovative ways of working including the use of new technology.
Hearings must take place in line with the current public health guidance and as part of this, you may want to consider alternative ways to conclude hearings, such as holding them remotely via conference call or video meetings etc. When selecting the most appropriate way of holding the meeting you should ensure that the security level of any application you use is in line with your Privacy and GDPR policies.
The right for an employee to be accompanied at a disciplinary or grievance hearing still applies. The employee’s chosen companion must be able to attend the hearing, even if it is being carried out through a video meeting. During the coronavirus pandemic, the availability of an employee’s chosen companion might be more limited than usual. For example, caring responsibilities. The Employer should consider if a delay of more than 5 days is reasonable in the circumstances.
Other considerations include:
- Does everyone have access to the required technology?
- Does anyone involved have any disability or other accessibility issues that might affect their ability to use video technology, or are any reasonable adjustments needed?
- Can any witness statements or other evidence be seen clearly by everyone involved during the hearing?
- Will it be possible to fairly assess and question evidence given by people interviewed in a video meeting?
- Is it possible to get hold of all the evidence needed for the investigation or hearing, for example records or files that are kept in the office?
- Is it possible for the person under a disciplinary investigation or who raised a grievance to be accompanied during the hearing and is it possible for them to confer in private during the meeting?
It is worth noting that if the employee prefers to have the process paused to allow an in-person hearing to be arranged then this is more appropriate than insisting on a remote hearing. Alternatively, if the matter is of a serious nature it may not be appropriate to delay the process.
The employee’s right of appeal
The employee’s right of appeal still applies.
It is important to remember that the law and ACAS Code of Practice on disciplinary and grievance procedures still apply during the coronavirus pandemic. This includes whilst social distancing and lockdown measures are in place.
Whether the employer decides to go ahead with the procedure or postpone it, they should explain their decision to those involved. This will help everyone to be clear about what has been agreed and why.
Participating in a formal hearing during the current pandemic will no doubt be stressful for all concerned and employers should give careful consideration to the health and wellbeing of all participants when deciding on how best to proceed. If you would like further information or advice, please contact our HR Consultancy Team on 01302 341 344.
By Louise Turner MBA Assoc CIPD – HR Business Partner