Coronavirus and Discipline and Grievance Meetings
Acas has issued guidance for employers on holding disciplinary and grievance meetings without meetings during the Coronavirus crisis.
Although a key factor of furlough is that the employee does no work for the employer the new guidance from ACAS has confirmed that discipline and grievance processes are still able to carry on, as long it would be fair and reasonable to do so. So regardless of whether an employee is furloughed, working from home or still in the workplace you can continue with discipline and grievance procedures so long as you comply with social distancing rules.
The guidance highlights that employees may currently be facing stressful circumstances and encourages employers to talk through the options with everyone involved before deciding whether or not to proceed. It may be appropriate to postpone if the matter is not urgent, would be dealt with more fairly when staff have returned to the workplace, or if anyone involved reasonably objects to going ahead at this time.
Where you do decide that it is fair and reasonable to proceed, you have to consider the practical aspects of dealing with disciplinary and grievance issues remotely for example, via video conferencing. You must ensure that a fair procedure can still be followed, and must comply with employment law and the existing ACAS Code of Practice on Disciplinary and Grievance Procedures.
Therefore you need to decide if it would still be fair and reasonable to carry on with or start a disciplinary or grievance procedure while an employee is:
- in the workplace and social distancing and other public health guidelines need to be followed
- furloughed because of Coronavirus and it would have to be carried out remotely,
- working from home and it would have to be carried out remotely
Someone on furlough can take part in a disciplinary or grievance investigation or hearing, including if they:
- are under investigation in a disciplinary procedure
- raised a grievance
- are chairing a disciplinary or grievance hearing
- are taking notes at a hearing or during an investigation interview
- are being interviewed as part of an investigation
- are a witness at a hearing
- are an employee’s companion for a hearing
The ACAS guidance provides some much needed clarity, as the government guidance has remained silent on this issue to date. It confirms that furloughed employees can take part in disciplinary and grievance proceedings, as long as they are doing so voluntarily and public health guidance is observed.
Employers need to assess whether it will be fair and reasonable to conduct these procedures in the individual circumstances, which will vary in each case. They will also need to consider the practicalities and implications of conducting these procedures remotely.
Is A Meeting Essential?
Any disciplinary or grievance procedure at this time must be carried out in a way that follows public health guidelines around social distancing and closure of certain business premises.
In reality, the key function of a physical disciplinary or grievance meeting is merely to satisfy the natural justice requirement that the employee be heard before any final decision is made.
In practice, it will be for the employee to show how they have been prejudiced by the convening of a disciplinary or grievance meeting when the parties cannot sit together. Possible considerations include:
- Ensuring that the employee knows how to use any video equipment and has no disability which might make that more difficult for him than would be the case at a physical meeting.
- Whether there are documents considered which might be hard to see or describe remotely. In that case the employer should send the employee in advance hard copies of the relevant paperwork, paginated for ease of reference. For a bundle of any size, this is far better than relying on an emailed file which may put too much strain upon a domestic printer, if the employee has one at all.
- Is this a case where the facts are materially disputed? The greater the degree of controversy, the more appropriate it may be to aim for a physical meeting.
- Is there any particular urgency to the situation? That might be through circumstances relating to the employee (e.g. suspected gross misconduct) or to the employer (e.g. a requirement to get someone off expensive paid suspension as soon as possible). That is not to say that urgency is a pre-condition of going ahead remotely, but it would certainly be relevant at the margin.
- Does the proposed technology allow the employer to have a note taker and the employer to have his companion in on the call? It may be that the hearing would need to be through a series of calls to allow the questioning of witnesses and to allow the companion and the employee in question to confer confidentially if that is what they want.
- On the document point again, does the employer have access to all the relevant papers, or are they in the office out of reach? You should not take action against an employee on the basis of any document he has not seen, and similarly you shouldn’t disregard any document which the employee reasonably says you ought to look at, merely because you can’t get access to it at the vital moment.
- The employee’s chosen companion must be able to attend the hearing, even if it’s being carried out through a video meeting. You may need to demonstrate increased flexibility over the timings of meetings to allow for caring responsibilities. You may therefore consider if a delay of more than 5 days is reasonable in the circumstances. The guidance makes it clear that an employee acting as companion in a disciplinary or grievance meeting is fulfilling a statutory function and so will not be “working” for furlough support purposes. The same is true of witnesses and oddly also of those chairing grievance or disciplinary meetings even though that might be part of their normal job were they not on furlough.
- How far is your view of the evidence going to be affected by the employee’s physical demeanour in the meeting? Although it is all a bit amateur psychologist, you will be less able to see psychological signs of truth or misrepresentation at a meeting held remotely, i.e. the sweating, flushing, dropped eye contact and other tics which might have tipped you one way or the other credibility terms in a finally-balanced case.
- You can record a call on phone or video if you wish, but you should make it clear at the outset that that is what you are doing and must then be prepared to provide the employee with a copy, however badly the “meeting” went. Remember that the employee may be doing the same without your knowledge, so don’t let the fact that you are doing the meeting from home lead you to relax. On video, make sure you have something suitable in the background. Instagrammable or Homes & Gardens not required, but you will look much less professional if it becomes clear that you are sitting in judgement on someone’s career while in your bed, the bath, a park or an inappropriate t-shirt or if you have children/dogs/someone doing lunch trotting around behind you.
It can be helpful to talk through the options with everyone involved before making a decision whether or not to proceed.
Whether you decide to go ahead with the procedure or postpone it, you should explain your decision with those involved. This will help everyone to be clear about what has been agreed and why.
If a disciplinary or grievance case reaches an employment tribunal, judges will look at whether the employer has followed the Acas Code of Practice in a fair and reasonable way.
Access the ACAS guidance here.
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