Scrase Law Employment Solicitors

Disciplinary and grievance procedures during Coronavirus

ACAS have published guidance on disciplinary and grievance procedures during the Coronavirus pandemic.  The guidance reminds employers and employees that the law and the ACAS Code of Practice on disciplinary and grievance procedures still apply during the pandemic. 

The guidance sets out general principles and suggests some practical measures that the employer can take. These include:

  • An employee can still raise a grievance if they are working from home or on furlough.  The employer must consider if they can carry out a fair grievance procedure.
  • Someone on furlough can take part in a disciplinary or grievance investigation or hearing, including if they are under investigation in a disciplinary procedure, chairing or taking notes at a hearing, being interviewed as part of an investigation, a witness at a hearing or accompanying an employee at a hearing.
  • This is as long as they are doing it “out of their own choice (voluntarily)” and it takes place in line with current public health guidance.
  • Going through a disciplinary or grievance procedure can be stressful in normal times and employees might be facing other stressful circumstances at this time.  Employers should give careful consideration to the health and wellbeing of employees when deciding whether and how to proceed.
  • If the workplace is still open the employer should consider whether the procedure can be carried out in line with public health guidelines.
  • If some or all of those involved in the procedure are working at home or on furlough, the employer will need to decide if the procedure can still be carried out in a fair and reasonable way.
  • The employer might have to use video meetings for investigation interviews and hearings.  The employer should consider if this can be done in a fair way.
  • If the employer decides to go ahead, they must follow the ACAS Code of Practice on disciplinary and grievance procedures.
  • The right to be accompanied still applies, even if the procedure is being carried out remotely.  During the pandemic, the availability of the companion might be more limited than usual.  The employer should consider whether a delay of more than 5 days is reasonable in the circumstances if the companion is unable to attend at the time or date of the hearing.
  • The employer must always act fairly to avoid unfair dismissal in cases that might result in dismissal.
  • For most hearings held by video, there will be no reason to record the meeting.
  • The employee’s right of appeal still applies.
  • The normal time limits for employees who wish to make a claim in the Employment Tribunal remain the same during the coronavirus pandemic, even if a disciplinary or grievance procedure has been postponed.  An employee will need to notify ACAS if they are intending to make a claim.

Comment

Although the ACAS guidance states that a furloughed employee can take part in a disciplinary or grievance process as a chairperson or note taker, it is not clear how this should be read alongside the Government guidance and Treasury Direction.  The Government guidance states that when employees are on furlough, the employer cannot ask those employees to do any work that makes money for the employer’s organisation or provides services for the employer’s organisation.  Arguably, acting as a chairperson or note taker could amount to “work” and is providing a service for the employer.  The ACAS guidance therefore appears to be contrary to that Government guidance.  The risk is that this could mean the employer is unable to claim for reimbursement of an employee’s wages under the Job Retention Scheme.  See here for further details of the Job Retention Scheme.

It will also be interesting to see how the requirement for an employee’s participation in a disciplinary to be voluntary will work in practice.  The very nature of a disciplinary procedure usually means that the employee is not participating “out of their own choice”.

There will clearly be practical difficulties to consider and plan for if an employer is considering proceeding with a disciplinary or grievance hearing at this time.  The guidance is a reminder that an important principle to bear in mind is that the employer must continue to act in a fair and reasonable way. This includes assessing, for example, the individual circumstances of the case; any objections expressed by those who would be involved in the process; any issues that individuals may have relating to access, for example, whether everyone involved has access to the technology required for remote meetings; whether a fair investigation can take place if the workplace is closed; and whether the employee can be accompanied during the hearing.

07 May 2020

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©2020 SCRASE LAW LTD. THIS POST IS FOR GENERAL INFORMATION ONLY AND IS NOT ADVICE. YOU ARE RECOMMENDED TO SEEK COMPETENT PROFESSIONAL ADVICE BEFORE TAKING ANY ACTION ON THE BASIS OF THIS POST