COVID 19 UPDATE 7th MAY 2020

May 7, 2020

This blog looks at the recent advice which can be found on the ACAS Website in respect of handling grievances and disciplinaries during the Covid 19 pandemic. The most important point to remember (which cannot be repeated too often) is that employment law has not been suspended during the pandemic when social distancing and lock down measures are being applied. Employers are still expected to follow the law and the ACAS Codes of Practice.

The first decision which the employer must address is whether the matter can wait: Would it still be fair and reasonable to carry on with or start a disciplinary or grievance procedure while:

  • people are on ‘furlough’ or shielding
  • following social distancing and other public health guidelines if they are in the workplace
  • people are working from home

The individual circumstances and sensitivity of the case, including urgency are important factors and of course listening to and acting upon reasonable objections to the procedure going ahead.

There is nothing preventing an employee from raising a grievance if the employee is away from the workplace however the question remains whether dealing with or delaying a grievance would be fair and reasonable.

As the Code and the law have not been suspended it is still possible for any or all of the following to take place whilst someone is on furlough or working from home:

  • An investigation of a disciplinary or grievance matter
  • Chairing a disciplinary or grievance hearing
  • Taking notes at a hearing or during an investigation interview
  • Interviewing employees as part of any investigation
  • Requiring a witness to give evidence at a hearing
  • Permitting an employee’s companion to ‘attend’ a hearing

It must of course be remembered that any disciplinary or grievance procedure must be carried out in a way that follows public health guidelines around social distancing and closure of certain business premises.

ACAS notes that 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.

It will be helpful for the employer to talk through the options with everyone involved and reach agreement (if possible) 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 to those involved. This will help everyone to be clear about what has been agreed and why.

Some workplaces remain open and if all those involved in the procedure are still going to the workplace, the employer must still consider whether the procedure can be carried out in line with public health guidelines.

An example given is whether interviews and meetings can be held in a place that safely allows for social distancing as well as privacy.

If people are not in the workplace then if the procedure is going to be conducted remotely then this is likely to mean having to use video meetings for any investigation interviews and hearings. The employer should consider the following:

  • Does everyone involved have access to the technology needed for video meetings, for example the necessary equipment and internet connection (importantly does it actually work)?
  • Does anyone involved have any disability or other accessibility issues that might affect their ability to use video technology, and whether any reasonable adjustments might be needed?
  • Can any witness statements or other evidence be seen and understood by everyone involved?
  • Will it be possible to fairly assess and question evidence given by people interviewed in a video meeting?
  • Will it be 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?
  • Will it be possible for that evidence to be available to those taking part?
  • Can the person under a disciplinary investigation or who raised a grievance be accompanied during the hearing?
  • Is it possible to follow a fair procedure?

ACAS focus in particular on the right to be accompanied at a disciplinary or grievance hearing as this still applies, even if the procedure is being carried out remotely.

This means that any 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

Issues in relation to postponement and availability of companions are likely to be more common so flexibility is the key.

Many of the apps being used for video link meetings have the option to record the meeting. Employers and employees must be clear whether recording is taking place and parties are reminder of the importance of complying with the GDPR.

Finally if there is a sanction or an unfavourable finding the employer must ensure that there is a right of appeal available.

Peter Doughty

 

Tags:
Commercial, Employment, Family, General Civil, Insolvency, Property and Planning, Will Disputes