ACAS has issued timely guidance and advice to employers and confirms that its Code of Practice on both disciplinary and grievance procedures, still applies during the Covid-19 pandemic.
It is all a matter of balance and common sense and it is recommended that the employer needs to decide if it would be fair and reasonable to carry on with or start a disciplinary or grievance procedure in the following circumstances:-
Where staff are on furlough leave.
Where staff are physically at work, to ensure that social distancing is being followed.
If staff are working from home and to carry out the procedures remotely.
Remember that it is a statutory right for an employee to raise a grievance and they can still do so whether they are working from home or have been furloughed. It is for the employer to decide whether they can carry out a fair grievance procedure in the current climate.
Staff on Furlough
A member of staff who has been Furloughed can still take part in a disciplinary or grievance investigation or hearing if for example they are themselves under investigation, have raised a grievance, are chairing a hearing, taking part as a note-taker, are being interviewed, are a witness or are accompanying the employee. The main focus of ACAS’s advice is that the Furloughed employee can agree to arrangements voluntarily and as long as any hearings take place in line with current public health guidance.
This means that employers need to ensure that social distancing is maintained at any face to face hearings, and that staff are not put at any health and safety risks.
It is stressful for an employee to go through a disciplinary or grievance under normal circumstances in face to face meetings and so employers should give careful consideration to the health and wellbeing of its employees in deciding whether to and how to proceed at this time.
Employers can talk through the options with their employees to either agree to the procedure going ahead in a way that is acceptable to everyone or to postpone it.
Staff currently in the workplace
For those staff who are still physically attending the workplace such as key workers, the employer should consider whether the procedure can be carried out face to face and in line with public health guidelines. Therefore, it is important to consider whether interviews and meetings can be held in a place that safely allows for social distancing and which maintains privacy.
Staff working from home
Where staff are working from home, the employer will need to decide if the procedure can still be carried out in a fair and reasonable way. Factors to consider will be whether given the sensitive nature of the issues whether it needs to be dealt with urgently, or to delay and deal with the matter when staff are able to return to the workplace for a face to face meeting. The employee’s opinions and any objections will also need to be considered.
Some employers are offering video meetings (Skype/Zoom/Microsoft Teams) and it is important for them to consider if the employee at home has access to the technology for video meetings, with sufficient internet access. It is also recommended that the employer considers if the employee is disabled and if so, has any accessibility issues affecting their ability to use video technology and whether reasonable adjustments are required. Other issues are whether witness statements and evidence can be clearly seen during a video hearing, and whether it is possible to properly question witnesses remotely. The other point is to ensure that the employee’s choice of companion to a hearing can be accommodated and to ensure that they can access the technology and attend the hearing.
In the event that such disciplinary and grievance hearings do go ahead then the employer is reminded that they must still follow the ACAS Code of Practice on disciplinary and grievance procedures. In the event of future litigation an employment judge will look at whether the employer has followed the Code of Practice in a fair and reasonable way.
Should video hearings be recorded?
Disciplinary and Grievance hearings conducted by video can be recorded if everyone agrees and it will be a contemporaneous record of that hearing. There is however no legal right to record the hearing, however if it is recorded then it must be arranged so that it does not contravene data protection laws.
Right of Appeal
Employers are reminded that there is a right of appeal which should be provided to employees for any disciplinary or grievance decision that is taken. Any hearings again should be conducted taking into account the guidance issued for the conduct of disciplinary and grievance hearings.
It is the writer’s view that disciplinary hearings containing allegations of gross misconduct in circumstances where an employee is at risk of losing their employment should be postponed until it is possible to conduct a face to face hearing.
The difficulty with video technology and remote hearings is that sometimes that technology can break down, and images can appear grainy. There is also a greater risk that body language and comments can be misread or taken out of context, compared to face to face hearings.
Employers should therefore question whether it is the right course of action to force an employee to attend such a hearing remotely where their employment is at risk. If the employee is Furloughed would it be better to keep them on furlough leave to ensure that the employee has an income stream, as it is unlikely that they will find another job until normality resumes, and at which point the disciplinary hearing can be conducted.
If you have any questions relating to disciplinary and grievance procedures and policies then contact Steven Eckett, Partner and Head of Employment at firstname.lastname@example.org or by telephone 020 7703 5034.
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