Acas has published new guidance on how employers should conduct disciplinary and grievance procedures during the COVID-19 pandemic. The guidance emphasises that all previous guidance, such as the Acas Code of Practice will continue to apply, and that the new guidance hopes to assist in instances where employees have been furloughed, where workplaces are inaccessible, or where employees are working from home.
First and foremost, Acas places the onus on the employer to decide whether it would be “fair and reasonable to carry on with or start a disciplinary or grievance procedure where it may have to be carried out remotely because of the circumstances mentioned above.
Raising a grievance or disciplinary:
The guidance suggests that, even if on furlough, employees can take part in an investigation or hearing where they:
- Are under investigation of a disciplinary procedure;
- Have raised a grievance;
- Are chairing a grievance or disciplinary hearing;
- Are taking notes at a hearing or interview;
- Are being interviewed;
- Are acting as a witness to the hearing; and/or are a companion for a hearing.
As referenced above, this is subject to the employer’s ability to carry out a fair procedure in the circumstances and provided everything takes place in line with “current public health guidance”. This is particularly relevant where the workplace is open. Individuals may object to the procedure in this way, especially where social distancing measures cannot be appropriately applied. Acas suggests that employers may decide to openly discuss the procedure with those involved, before going ahead. Similarly, should the process become impractical, any decision to proceed or postpone the grievance or disciplinary should be explained to all relevant parties.
If employees are working from home:
The guidance sympathises with the practical and technical issues that could arise when trying to investigate or carry out a disciplinary or grievance procedure. The guidance recommends that, as video meetings will be the most likely option, there are a number of considerations which will have to be taken into account. For example:
- Does everyone involved have access to the technology needed?
- Does anyone have a disability that may affect their ability to use the technology?
- Can witness statements or other pieces of evidence be seen clearly by all involved?
- Will it be possible to fairly interview someone?
- How might someone be accompanied during the meeting? A companion’s availability may be more restricted than usual. In these circumstances, Acas suggests that extra allowances should be made.
There will be few reasons where the disciplinary or grievance video meeting will need to be recorded. Employers should be mindful of their duties under the Data Protection Act 2018 if this need is exercised.
Finally, the guidance confirms that employees, despite the COVID-19 Pandemic, will still have the right to appeal the outcome of their disciplinary or grievance. Likewise, the legal time limit for making a claim to an employment tribunal remains the same.
Legal commentators have been quick to comment on how the guidance may interact with HMRC’s treasury direction which required all furloughed employees to “cease all work”.