Acas has published guidance for employers on the conduct of disciplinary and grievance procedures during the Covid-19 pandemic. The full guidance can be found here and will assist employers facing issues in respect of disciplinary and grievance procedures at this time.
Will disciplinary and grievance procedures apply as normal?
The guidance states that existing employment law and the Acas Code of Practice on Disciplinary and Grievance Procedures will continue to apply during the Covid-19 pandemic. However, it urges employers to consider whether it would be fair and reasonable to start or continue a disciplinary or grievance procedure whilst an employee is furloughed, social distancing and other public health guidance is being followed, or an employee is working from home.
The guidance sets out various considerations which employers should take into account when deciding whether or not to start or continue a disciplinary or grievance procedure. These considerations include the health and wellbeing of employees, whether the process can be carried out in accordance with public health guidelines, and whether it would be fair, reasonable and practical for video meetings to be used for individuals working from home. The guidance specifically states that for most disciplinary or grievance meetings held by video, there will be no reason to record the meeting.
An employee’s right to be accompanied will apply as normal. If a companion is unable to attend at the time or date of the hearing, an employee has the right to suggest another time or date. As the availability of an employee’s chosen companion may be more limited than usual during the Covid-19 pandemic, an employer should consider if a delay of more than the usual five days is reasonable in the circumstances.
What if an employee is on furlough?
The guidance states that a furloughed employee can participate in disciplinary or grievance procedures, provided the employee is acting voluntarily and it is possible to comply with current public health guidance. Participating in the procedure may involve being investigated, taking part in an investigation as a chairperson or a note taker, or acting as a witness or a companion in a hearing.
However, employers need to be mindful of HMRC’s guidance on the Coronavirus Job Retention Scheme (the Scheme). The guidance states that employees cannot (currently) undertake any work for their employer whilst on furlough leave. It is possible that acting as a chairperson or a note taker, and potentially even acting as a witness, would constitute “work” and therefore jeopardise an employer’s ability to make a claim under the Scheme. In addition to this, the requirement for an employee to act voluntarily may be difficult to reconcile with the nature of disciplinary proceedings, where an employee’s attendance is unlikely to be seen as being out of their own choice.
As the consequences for employers of getting this wrong are potentially serious and expensive, careful consideration should be given when deciding whether or not to start or continue disciplinary or grievance procedures for employees in these times. That is not to say that they cannot be commenced and employers now, more than ever, need to actively manage their business; but it is a time to take particular care.
To review our previous Covid-19 updates, please click here.
If you aren’t receiving our legal updates directly to your mailbox, please sign up now
Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.
Edwin Coe LLP is a Limited Liability Partnership, registered in England & Wales (No.OC326366). The Firm is authorised and regulated by the Solicitors Regulation Authority. A list of members of the LLP is available for inspection at our registered office address: 2 Stone Buildings, Lincoln’s Inn, London, WC2A 3TH. “Partner” denotes a member of the LLP or an employee or consultant with the equivalent standing.