On 6 May 2020, ACAS issued guidance for employers on how to handle disciplinary and grievance procedures during the coronavirus pandemic, including while staff are on furlough or working from home or while following social distancing guidelines (if in the workplace).
Furlough or working from home
Employers need to consider whether a fair and reasonable procedure can be conducted if individuals involved in the procedure are on furlough or working from home. Equally, if the grievance or disciplinary issue is about an ongoing situation, it is important to consider whether delaying a hearing (for example, until an employee returns from furlough or until it can be safely convened in person) might make matters worse.
Consideration should be given to the circumstances and sensitivity of the case, whether anyone involved objects to the procedure going ahead during this time, if the procedure can be conducted in line with the current public health guidance and the health and wellbeing of the employees involved. Employers must be transparent with employees and explain the decision either to go ahead or postpone the procedure, informing those involved of what has been agreed and why.
If the procedure does go ahead, employers should consider using video meetings to conduct investigation interviews and hearings, determining if it can be done in a fair way, including whether:
- the employee has access to technology;
- there are any disability or accessibility issues;
- witness statements and/or any other evidence can be clearly viewed by all involved;
- evidence can be fairly assessed and questions given in a video meeting;
- all evidence needed to conduct the procedure can be obtained; and
- the person under investigation or who raised the grievance can be accompanied.
Examples of when a person on furlough might take part in a disciplinary or grievance procedure include if they are under investigation, have raised a grievance or are a witness at a hearing.
ACAS highlights the importance of adhering to social distancing guidelines if carrying out any disciplinary or grievance procedures during this time.
Procedure and right to be accompanied
Employers must follow ACAS’s Code of practice on disciplinary and grievance procedures, even during these unprecedented times. Employment Tribunals will look at whether employers acted in a fair and reasonable way in the circumstances.
An employee still has a right to be accompanied and the same procedure should be followed in relation to companions, e.g. the companion may sum up the employee’s case, respond on behalf of the employee and talk privately to the employee at any time during the meeting. Practically, this may be more difficult in a virtual hearing and so patience and understanding will be required.
ACAS recognises that an individual’s availability during the pandemic may also be more limited due to other commitments, such as home schooling or caring commitments. Therefore, if an employee or their companion are unable to attend, employers should be flexible regarding arranging an alternative date and time.
Finally, ACAS has confirmed that there is no reason to record a meeting held remotely.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.