Disciplinaries and Grievances during the pandemic

With Government advice to “work from home if you can” continuing to apply until at least 21 June, HR teams are having to continue to look at new ways of working.

While workplaces continue to be disrupted, with many working from home or on furlough, employment law and the Acas Code of Practice on disciplinary and grievance procedures still apply.  Acas has published a Guide for employers on how to conduct disciplinary and grievances during the pandemic.

Furloughed employees can still be involved in disciplinary or grievance procedures, including taking part in a grievance or disciplinary investigation or hearing and have the right to raise a grievance.  The flexible furlough arrangements in place since 1 July 2020 allow employers to treat hours a furloughed employee spends participating in disciplinary and grievance proceedings as working hours, and not to claim for them. So how might the current restrictions affect how we handle workplace disputes? 

Practical challenges for employers

Under the Acas Code of Practice on disciplinary and grievance procedures, disciplinary and grievance procedures must always be safe, fair and reasonable. However, while the coronavirus pandemic continues, they must also be in line with public health guidelines, including social distancing and avoiding workplaces where possible. As a result, there may be practical challenges to holding disciplinary or grievance procedures, but they must continue without undue delay. Employers must attempt to proceed in a safe, fair and reasonable manner. If this is not possible, they must consider whether it would be fair to suspend proceedings until a later date.

Suspending proceedings

In deciding whether proceedings should be suspended, a reasonable employer would be expected to consider the case's individual circumstances. For example, the matter may be urgent, where it deals with gross misconduct or unlawful harassment. However, minor disciplinary issues may be dealt with at a later date where appropriate.

Holding a disciplinary or grievance procedure remotely

While homeworking is in place, disciplinary and grievance meetings can be held remotely.  Video meetings can form part of any investigation into disciplinary or grievance matters.

Employers may choose to conduct a video meeting, interview or hearing so long as the process is fair and reasonable, taking into account factors such as:

• Do all parties have adequate access to the technology required to take part in a video meeting?
• Does any party have a disability or any other accessibility issues which may affect their ability to take part?
• Is it possible to access all of the evidence required to conduct the investigation or hearing, and can all parties access the evidence during the video hearing?
• Is it possible to assess the evidence and question the relevant parties fairly during a video hearing?

Will a video hearing be recorded?

Employers must keep a record of any disciplinary or grievance procedures carried out, usually by a note taker attending the meeting and procedures conducted via video may be recorded. However, it is important that everyone involved agrees to the meeting being recorded.

For assistance with holding grievances and disciplinaries contact Laura Claridge on 01689 887887 or email laura.claridge@cwj.co.uk