Coronavirus: New ACAS Guidance on Disciplinary & Grievance Procedures

As a result of the ongoing pandemic, ACAS have updated their guidance to employers so that there is clarity on the effect of social distancing on Disciplinary & Grievance Procedures.

The employer needs to decide if it would still be fair and reasonable to carry on with or start a disciplinary or grievance procedure while:

• people are on temporary leave because of coronavirus (on ‘furlough’)
• following social distancing and other public health guidelines, if they’re in the workplace
• people are working from home, and it would have to be carried out remotely

The guidance highlights that employees may currently be facing stressful circumstances and encourages employers to talk through the options with everyone involved before deciding whether or not to proceed. It may be appropriate to postpone if the matter is not urgent, would be dealt with more fairly when staff have returned to the workplace, or if anyone involved reasonably objects to going ahead at this time.

If an employee wants to raise a grievance

An employee can still raise a grievance if they’re working from home or are on furlough. The employer must consider if they can carry out a fair grievance procedure.

If someone’s on furlough

Someone on furlough can take part in a disciplinary or grievance investigation or hearing, including if they:

• are under investigation in a disciplinary procedure
• raised a grievance
• are chairing a disciplinary or grievance hearing
• are taking notes at a hearing or during an investigation interview
• are being interviewed as part of an investigation
• are a witness at a hearing
• are an employee’s companion for a hearing

This is as long as:

• they’re doing it out of their own choice (‘voluntarily’)
• it takes place in line with current public health guidance

Deciding if a disciplinary or grievance procedure can still go ahead

Any disciplinary or grievance procedure at this time must be carried out in a way that follows public health guidelines around social distancing and closure of certain business premises.

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 well-being of employees when deciding whether and how to proceed at this time.

It can be helpful for the employer to talk through the options with everyone involved before making a decision whether or not to proceed.

Whether the employer decides to go ahead with the procedure or postpone it, they should explain their decision with those involved. This will help everyone to be clear about what has been agreed and why.

If the workplace is still open

If all those involved in the procedure are still going to the workplace (‘key workers’), the employer should consider whether the procedure can be carried out in line with public health guidelines.

For example, if interviews and meetings can be held in a place that safely allows for social distancing as well as privacy.

If people are working from home

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. 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

Going ahead with a procedure at this time might mean having to use video meetings for any investigation interviews and hearings. The employer should consider if this can be done in a fair way, including if:

• everyone involved has access to the technology needed for video meetings, for example the necessary equipment and internet connection
• anyone involved has any disability or other accessibility issues that might affect their ability to use video technology, and whether any reasonable adjustments might be needed
• any witness statements or other evidence can be seen clearly by everyone involved during the hearing
• it will be possible to fairly assess and question evidence given by people interviewed in a video meeting
• it’s possible to get hold of all the evidence needed for the investigation or hearing, for example records or files that are kept in the office
• it’s possible for the person under a disciplinary investigation or who raised a grievance to be accompanied during the hearing.

If an employer goes ahead with a disciplinary or grievance procedure

If the employer decides to continue or start a disciplinary or grievance procedure, they must follow ACAS’s Code of Practice on:

• disciplinary procedures
• grievance procedures

If a disciplinary or grievance case reaches an employment tribunal, judges will look at whether the employer has followed the ACAS’s Code of Practice in a fair and reasonable way.

The right to be accompanied

The right for an employee to be accompanied at a disciplinary or grievance hearing still applies. The employee’s chosen companion must be able to attend the hearing, even if it’s being carried out through a video meeting.

The hearing must be set up to allow the employee’s chosen companion to:

• put and sum up the employee’s case
• respond on behalf of the employee to anything said
• talk privately with the employee at any point

If the companion is unable to attend at the time or date of the hearing, the employee has the right to suggest another time and date. This is as long as it’s reasonable and not more than 5 working days after the original date.

During the coronavirus pandemic, the availability of an employee’s chosen companion might be more limited than usual. For example, they might have more caring responsibilities. The employer should consider if a delay of more than 5 days is reasonable in the circumstances.

In cases that might result in dismissal in particular, the employer must always act fairly to avoid unfair dismissal.

Recording video meetings

For most disciplinary or grievance meetings held by video, there will be no reason to record the meeting.

If it’s felt there’s a good reason to record it, this must be done in line with data protection law.

Find out more about Data Protection from the Information Commissioner’s Office (ICO).

The employee’s right of appeal

The employee’s right of appeal still applies.

The employer must follow a fair appeals procedure taking in the same considerations as for carrying out a disciplinary or grievance procedure during the coronavirus pandemic.

If you have any immediate or urgent issues get in touch with us to discuss your options in these tough and uncertain times. 

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