COVID-19 EXPERT LEGAL INSIGHTS

Guidance for employers on conducting disciplinary and grievance procedures during the Coronavirus pandemic

14 May 2020

ACAS has issued guidance for employers on conducting disciplinary and grievance procedures during the coronavirus pandemic. This guidance does not replace current employment law principles and guidance.  Instead, it acts to supplement them and recognises that processes may need to be modified to reflect the current circumstances.
 

Employers are advised to consider whether it is still fair and reasonable to carry on with or start a disciplinary or grievance procedure while:

  • people are on furlough leave;
  • following social distancing and other public health guidelines, if employees are in the workplace;
  • people are working from home, and the process would have to be carried out remotely.

Any investigation, disciplinary or grievance procedure should of course be carried out in a way that follows current public health guidance at the relevant time. The guidance also suggests that employers should give “careful consideration to the health and wellbeing of employees when deciding whether and how to proceed” at a time when “employees might be facing other stressful circumstances”.

It would be sensible for an employer to document that thought has been given to the potential impact of the pandemic on these internal processes, explain their decision to proceed and outline how the usual process will be adapted to address the situation. 

Employees on furlough

The guidance confirms that employees on furlough can take part in a disciplinary or grievance investigation or hearing, so long as they are doing so out of their own choice and it takes place in line with current public health guidelines. 

In practice this may be problematic, for example if they refuse to participate voluntarily.  Alongside this, employers will need to be mindful of up to date, and changing, guidance on the Coronovirus Job Retention Scheme (CJRS) and eligibility, and consider the case of each employee carefully. An employee on furlough raising a grievance will have different risks in terms of the CJRS than an employee on furlough chairing a disciplinary hearing.  It seems odd that the latter would not count as providing a service to the employer, with the financial risks that presents to the employer under the CJRS.  In that situation, an employer might want to consider alternatives, such as using a different employee, or bringing an employee off furlough leave in order to undertake their role in the process.

 

Employees working from home

An employer will need to decide whether the process can still be carried out in a fair and reasonable way.  They should consider:

  • the individual circumstances and sensitivity of the case, for example if it needs to be dealt with urgently, or if it would be dealt with more fairly when people are able to return to the workplace
  • if anyone involved has a reasonable objection to the procedure going ahead at this time

If using technology to facilitate the process, employers should ensure that everyone has sufficient access and equipment and whether any reasonable adjustments are needed.

The right to be accompanied still applies, whether an employee is on furlough, working from home or in the workplace, and hearings must be set up to allow this.

There will usually be no reason to record the meeting.  If it is felt there is “a good reason to record it”, this must be done in line with data protection law.

 

The overwhelming message from ACAS’ guidance is that the current situation is not a reason to circumvent dealing with investigation, grievance and disciplinary processes properly.  Thought should be given as to whether to do so at this time and, if so, how to do that in a fair and reasonable way.

FURTHER INFORMATION

If this is an area which concerns you please feel free to contact Kirsty or any member of the employment team.

 

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