Can employers still conduct disciplinary and grievance procedures during the COVID-19 pandemic?
27th May, 2020
Many employers are challenged with how to handle internal processes whilst normal working practices have been disrupted and staff are working from home, self-isolating, on furlough or whilst social distancing measures are in place in the workplace.
Is it fair and reasonable for employers to continue with these procedures whilst these measures are in place?
The law and the ACAS Code of Practice on disciplinary and grievance procedures still apply during COVID-19. It is important that employers, so far as reasonably practicable, continue to deal with such processes in a timely manner and do not depart from or fail to follow their own procedures or those in the ACAS Code. However, the current pandemic is clearly putting challenges in place for employers where ordinarily they would have carried out investigation meetings and hearings face to face or within reasonable timeframes.
ACAS have published new guidance on how to manage disciplinary and grievance procedures during the COVID-19 pandemic. The key points to takeaway from the new ACAS guidance include:
- Health and Safety – employers should consider the health and wellbeing of all employees involved in the process. This may include managers appointed to investigate and conduct the process, as well as witnesses, the aggrieved or the individual being disciplined. ACAS recommend discussing options with everyone involved before deciding whether to proceed or pause the relevant procedure and confirming this with all involved.
- Meetings – if those involved in the process are still in the workplace then consideration needs to be given to health and safety, social distancing and public health guidelines. Can interviews be held in a place that allows for privacy and social distancing?
- Video conferencing– employers should consider using video conferencing for interviews and meetings (particularly where employees are not in the workplace), but consider whether all individuals have access to the technology required or if anyone has a disability which may affect their ability to use video technology.
Employers should therefore consider a number of factors when deciding whether to progress or pause a process, including the implications of any delay on any evidence or dealing with a process in a reasonable timescale. We would recommend employers considering each case on its own facts, rather than taking a blanket approach towards all internal processes.
Should employers pause the process?
This can have advantages and disadvantages and may depend on how close to the end of lockdown we are. Delaying processes can have disadvantages, particularly if the employer is relying on witness evidence when memories can fade after time or employees may leave and obtaining their input will be more difficult. It can also lead to increased levels of stress for employees and witnesses and unresolved issues can lead to further clashes in the workplace.
On the other hand, pausing the relevant procedure until the crisis has passed may also have some advantages, particularly where managers, HR and witnesses are working from home or on furlough.
There are a number of factors to weigh up, but there will be some cases which justify being paused. Given there is currently no end date to the lockdown, we would recommend employers regularly review any pause in the process to assess if any of the factors have changed to enable to the process to progress.
Any decision to pause the process should be communicated to the relevant employees.
Should employers continue with the process?
Provided the employer has given due consideration to the health and well being of the individuals involved, the dynamics of how to hold meetings and obtain evidence, then there is no reason why an employer cannot proceed with the process, providing that they follow a fair and thorough process and minimise any disadvantages an employee may suffer resulting from a remote hearing. It is unlikely to be any defence to an employer to use COVID-19 as an excuse for not following a fair process.
The parties should be kept informed of any delays to the process because of adaptations made to the normal processes and delays in accessing evidence and contacting witnesses.
What if an employee or witness cannot participate in video conferencing or they are self-isolating?
If video conferencing is not an option, employers should consider telephone calls. Employers can also consider written participation by emails or letters.
Can employees on furlough still participate in disciplinary and grievance processes?
The view taken by ACAS is that they can, regardless of their role in the process, i.e. the employee being investigated or raising a grievance, a companion or witness or even a manager chairing the hearing, provided such participation is voluntary and in accordance with public health guidance.
Whilst we agree that employees or witnesses should be able to participate, we would urge employers to take caution in relation to the participation of an investigator, chairperson or notetaker who is furloughed at the relevant time as our view is that this is unlikely to be compatible with the current Treasury direction which makes it a condition for accessing the Coronavirus Job Retention Scheme (CJRS) that furloughed employees cease all work in relation to their employment during a period of furlough. The definition of “work” includes ‘generating revenue for or providing services to the employer or an associated organisation’.
It is likely that this position will change from August 2020 when the government are intending to allow for employees to be able to work part time whilst on furlough.
The role of companion or representative for an employee is however outside of the employee/employer relationship, and would not be considered to be providing services to the employer.
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