Conducting disciplinary and grievance processes during the Coronavirus restrictions

Employers need to consider whether it is fair or reasonable to conduct a disciplinary or grievance procedure while staff are working from home, following social distancing guidelines at work, or are on furlough.

This is according to new guidance from Acas, which encourages employers to think carefully about starting or continuing disciplinary or grievance procedures while Coronavirus disrupts normal working practices.

The law and the Acas Code of Practice on disciplinary and grievance procedures still apply during the Coronavirus (COVID-19) pandemic and as such it is important to note at the outset that the Coronavirus pandemic does not permit employers to depart from or fail to follow proper procedures. For further information on how to manage a disciplinary or grievance procedure, please refer to our ‘How to Guides’ see:

• https://www.shoosmiths.co.uk/insights/articles/how-to-run-a-disciplinary-investigation;
• https://www.shoosmiths.co.uk/insights/articles/how-to-run-a-disciplinary-hearing;
• https://www.shoosmiths.co.uk/insights/articles/how-to-run-an-appeal-hearing;
• https://www.shoosmiths.co.uk/insights/articles/how-to-run-a-grievance-hearing .

The key takeaways from the new guidance include:

• consideration for the health and wellbeing of all employees involved in the process (not just the individual who is being disciplined or who has raised the grievance). The guidance suggests talking through the options with everyone involved before deciding whether to proceed or to pause the relevant procedure. Once a decision has been reached, the employer should explain that decision to those involved to ensure that everyone is clear about the conclusion reached, noting this in writing.
• if those involved in the procedure are still going to the workplace, consideration needs to be given as to whether the procedure can be carried out in line with public health guidelines. Can interviews and hearings be held in a place that safely allows for social distancing as well as privacy?
• if the decision has been reached that the procedure cannot be paused, and those persons involved are not in the workplace, employers should bear in mind that going ahead with a procedure at this time might mean having to use video conferencing for any investigation interviews and hearings. This may cause issues such as whether everyone involved has access to the technology needed for video meetings, numerous suspensions in the process to allow the employee to engage with their companion ‘off screen’, and of course whether anyone involved has any disability that might affect their ability to use video technology.

The approach that employers take will depend upon the nature of the offence or complaint, whether the workplace is open and the proximity to the end of the current lockdown measures.

Pausing the relevant process

Pausing disciplinary and grievance procedures until the crisis has passed has some advantages. Some relevant managers, HR and witnesses will be working from home or on furlough leave and may have difficulty in proceeding with the process. In some cases, the investigation may not be possible remotely and pausing the procedure may be the obvious solution.

Pausing the procedure has the disadvantage of increasing stress for the employee. It may also mean there is an unresolved clash between employees which could cause further problems if they are still working together either in the workplace or remotely.

Continuing with investigations and hearings

Any investigation must be fair and thorough. At the end of the investigation the employer will have to decide whether it would be appropriate to hold the disciplinary or grievance hearing remotely or suspend the procedure until further investigation is possible. If the employee is accused of gross misconduct and the potential outcome of the disciplinary hearing is dismissal, extra care should be taken to minimise any disadvantages to the employee resulting from a remote hearing.

What if employees are on furlough leave, can they participate in disciplinary and grievance processes?

Acas takes the view that it is still possible for furloughed employees to take on various roles in disciplinary or grievance investigations or hearings regardless of that role i.e. the employee at the heart of the issue, the manager chairing a hearing, or as a witness or companion, provided that such participation is voluntary and in accordance with public health guidance.

It is unclear how the Acas guidance can be read compatibly with the HMRC guidance and the Treasury direction in relation to the participation of an investigator, chairperson or notetaker who is furloughed at the relevant time. The Treasury direction makes it a condition for accessing the Coronavirus Job Retention Scheme (CJRS) that furloughed employees cease all work in relation to their employment during furlough, with ‘work’ defined as ‘generating revenue for or providing services to the employer or an associated organisation’.

We would therefore caution employers against relying on this part of the ACAS guidance to claim furlough pay under the CJRS in respect of those employees, typically line managers and HR, who perform these tasks in any disciplinary or grievance proceedings.

Where employees are acting as representatives, however, their role is outside of the employee/employer relationship, and therefore they would not be providing services to the employer.

Lastly, the ACAS guidance suggests that grievance and disciplinary proceedings can continue where the employee agrees this “voluntarily” – it is not clear what this means, and few employees are likely to submit to a disciplinary process voluntarily. It is to be hoped that further guidance will be issued to clarify these points, and in the meantime, we would advise proceeding extremely carefully with both procedures whilst employees are furloughed