As the pandemic continues, employers will inevitably need to continue their HR operations and consider how processes should be adapted to account for coronavirus. When it comes to carrying out formal disciplinary and grievance procedures, it’s important for employers to remember that they are under the same legal obligations during the pandemic as they were prior to it.
But is it really business as usual?
From working out how to conduct proceedings remotely if staff are working from home, or how to adhere to social distancing guidelines if the workplace is open, to considering how to involve furloughed staff in proceedings, HR teams and managers are facing new and largely unprecedented challenges.
In light of this, ACAS has produced supplementary guidance specifically covering best practice for employers when carrying out disciplinary and grievance procedures during the pandemic. Whilst ACAS confirms that this guidance does not replace existing employment law obligations or its Code of Practice on disciplinary and grievance procedures, it does provide a helpful guide to the different considerations employers will need to bear in mind.
ACAS’ Code of Practice stresses the importance of dealing with issues fairly, and this includes handling grievances and disciplinary issues promptly and seriously, without unreasonable delay.
The overriding message during the pandemic is that businesses must take extra precautions to ensure a fair and reasonable process, which includes considering whether or not it would be fair to even start or continue grievance and disciplinary proceedings in the first place. This is particularly important in respect of proceedings which may lead to an employee being dismissed, to avoid claims of unfair dismissal.
Set out below is a summary of the particular issues to think about during the pandemic. For more detailed guidance about handling grievance and disciplinary matters (during the pandemic and in general) see our Q&A on Grievances and disciplinary procedures.
Deciding whether to proceed if staff are working from home
Can I start or continue a grievance or disciplinary procedure during the pandemic if my staff are working from home?
Yes you can, but you must decide whether it would be fair and reasonable to do so in the circumstances.
Considerations that you will need to bear in mind include:
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The specific circumstances of the case
You should assess the specific circumstances and seriousness of the case, including how urgently it needs to be dealt with. You must remember that ACAS’ Code of Practice stresses the importance of dealing with issues fairly, and this includes handling grievances and disciplinary issues promptly and seriously, without unreasonable delay. See our Q&A on grievances and disciplinary procedures for further guidance. You will need to consider whether the specific circumstances of the case mean that it would be fairer to deal with the proceedings quickly via remote means or to wait until you can carry out proceedings in person.
Remember that many grievances can be resolved informally if the matter is minor; see our Q&A on handling grievances for guidance about how to go about doing this.
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Whether anyone objects to proceedings going ahead
ACAS’ guidance recommends consulting with those involved before making a final decision as to whether to proceed and if someone objects to proceedings going ahead, this should be a factor in your decision-making process. Whatever you do decide, make sure you communicate your decision clearly and transparently so that your staff understand why you have chosen that course of action.
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Whether the staff members concerned have access to appropriate technology
For example, you will need to consider whether your staff members have sufficient internet connection and access to secure video conferencing facilities to allow you to carry out proper interviews and investigations. You will also need to consider whether anyone involved has a disability which may affect their ability to use relevant technology and what reasonable adjustments you may therefore need to make.
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Whether evidence can be accessed and reviewed remotely
Can you access all of the evidence remotely whilst your workplace is closed? If you can, does the technology you are using provide for that evidence to be reviewed and questioned by all those involved in the proceedings? You must ensure that you are able to conduct an appropriate and fair investigation if you decide to go ahead with the case.
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The health and wellbeing of the staff member in question
Remember that a disciplinary or grievance procedure will often be stressful or provoke anxiety in your staff, which you must factor in with the additional stresses they may be under as a result of the pandemic.
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Whether the staff member in question can be accompanied
Remember that casual workers and employees have the right to be accompanied to a grievance or disciplinary meeting by a fellow staff member or trade union representative. You will need to consider the extent to which you will be able to accommodate this through remote proceedings. This includes ensuring that they will be able to talk privately with the staff member who is the subject of the proceedings if they need to do so.
Note that if your staff member’s chosen companion is unable to make the meeting at the time you have proposed, the member of staff may propose a reasonable alternative time within 5 working days of the day originally proposed and you must postpone the meeting to them. ACAS recommends that in the current circumstances, it may be appropriate for you to allow an extension of more than 5 days as the companion may have less availability (eg due to caring responsibilities).
Note that furloughed workers are entitled to accompany staff members to disciplinary or grievance meetings (see below).
For further guidance about the role of companions, see our Q&A on disciplinary and grievances procedures.
Whatever decision you ultimately take as to whether or not to proceed, it would be best practice for you to keep a record of your decision-making process, including how you assessed the impact of the pandemic on your procedures and what measures you intend to put in place to adapt your processes.
Can I make a digital recording of disciplinary or grievance meetings conducted remotely?
As a general rule, no. You can only record disciplinary and grievance meetings conducted remotely (eg by video conference) if it is necessary to do so and you have a clear purpose, and as part of this you will need to consider less intrusive alternatives. In most cases, keeping contemporaneous notes and/or having an independent third party present is likely to be more appropriate. For further guidance, see our Q&A on Recording staff telephone conversations and meetings.
Deciding whether to proceed if your workplace is open
Can I start or continue a grievance or disciplinary procedure that I’d started before the pandemic began if my workplace is open?
Yes you can, but you must decide whether it would be fair and reasonable to do so in the circumstances. ACAS’ guidance recommends consulting with those involved before making a final decision as to whether to proceed and, whatever you decide, to communicate your decision clearly and transparently.
Considerations that you will need to bear in mind include:
- The extent to which procedures can be carried out in accordance with public health guidance
If your workplace is open and your staff members are travelling into work, you will need to consider the extent to which proceedings can be carried out in accordance with current public health guidance, such as social distancing guidelines. For example, can you conduct meetings in a safe and private space which allows for your staff to stay 2 metres away from each other at all times? - The health and wellbeing of the staff member in question
Remember that a disciplinary or grievances procedure will often be stressful or provoke anxiety in your staff, which you must factor in with the additional stresses they may be under as a result of the pandemic.
- Whether the staff member in question can be accompanied
Remember that casual workers and employees have the right to be accompanied to a grievance or disciplinary meeting by a fellow staff member or trade union representative. You will need to consider the extent to which you will be able to safely accommodate this whilst still adhering to social distancing rules and other public health guidelines.
Note that if your staff member’s chosen companion is unable to make the meeting at the time you have proposed, the member of staff may propose a reasonable alternative time within 5 working days of the day originally proposed and you must postpone the meeting until then. ACAS recommends that in the current circumstances, it may be appropriate for you to allow an extension of more than 5 days as the companion may have less availability (eg due to caring responsibilities).
Note that furloughed workers are entitled to accompany staff members to disciplinary or grievance meetings (see below).
For further guidance about the role of companions, see our Q&A on grievance and disciplinary procedures.
Involving furloughed workers
Can I start or continue a grievance or disciplinary procedure during the pandemic if my staff member has been furloughed?
Yes you can, but you must decide whether it would be fair and reasonable to do so in the circumstances.
In addition to the considerations set out above in respect of proceedings to be carried out either remotely or in person, you must also only proceed if your staff member is participating voluntarily. ACAS’ guidance makes it clear that while furloughed workers can both raise grievances and be the subject of disciplinary proceedings, they must be doing so out of choice.
Can furloughed workers participate in the disciplinary and grievances procedures of other staff?
In certain circumstances furloughed workers may be able to participate in the disciplinary and grievance procedures of other staff members, but you should tread carefully.
The Coronavirus Job Retention Scheme makes it clear that furloughed workers cannot carry out any work to provide services to or on behalf of their employer whilst they are on furlough leave. On the other hand, ACAS’ guidance takes the view that furloughed staff are able to participate in disciplinary and grievances procedures in the following ways, provided that their participation is voluntary:
- chairing a disciplinary or grievance hearing;
- taking notes during an interview or hearing;
- being a witness at a hearing;
- being interviewed for an investigation; or
- accompanying another staff member to their disciplinary or grievances meeting.
Due to the financial implications for employers if they are found to have breached the rules of the Coronavirus Job Retention Scheme, you should take a risk-based approach to involving furloughed staff in grievances and disciplinary procedures. For example, whilst a staff member accompanying a colleague to a grievance hearing is unlikely to constitute them providing a service to their employer, chairing a grievance hearing for another member of staff may be borderline. Equally, furloughed workers must not be compelled by their employer to participate.
In practice, you should consider alternatives where appropriate, such as bringing relevant staff members off furlough leave to participate (provided they have been furloughed for the minimum period of 3 weeks) or involving other members of staff. Remember that as a general rule, you must ensure that the person who handles these processes is independent, impartial and sufficiently senior to be able to deal with them.
Think ahead!
If you anticipate difficulties (eg because you intend to furlough your HR staff), make sure key members of staff know where your HR policies and forms are located (such as template letters inviting staff to grievance or disciplinary meetings or investigation outcome forms).
If you decide to go ahead with your disciplinary and grievances actions, it is vital that you follow your usual procedures and consider whether you need your staff member’s consent if you foresee any departure from this. For full guidance about the steps you will need to take, see our Q&A on Grievances and disciplinary procedures.
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Before joining Sparqa Legal as a Senior Legal Editor in 2017, Frankie spent five years training and practising as a corporate disputes and investigations lawyer at leading international law firm Hogan Lovells. As legal insights lead, Frankie regularly contributes to Sparqa Legal’s blog, writing content across employment law, data protection, disputes and more.