Managing grievances and disciplinary procedures in light of the Coronavirus pandemic
Key Contact – Claire Knowles
Author – Adam McGlynn
The Coronavirus pandemic has caused widespread disruption to businesses across the nation. Many have had to drastically re-evaluate priorities in order to deal with more pressing concerns and ensure their survival. However, disciplinary and grievance procedures are important parts of a business’ internal operations and managers should be mindful of their obligations to handle these matters with care and respect. ACAS have released guidance on managing these procedures while employees are practicing social distancing in the workplace, working remotely, or on furlough leave which we have expanded upon below.
Can a furloughed employee raise a grievance?
Yes. An employee can raise a grievance as long as they remain employed by the business regardless of whether they are working from home or temporarily furloughed.
Can a furloughed employee take part in a disciplinary or grievance procedure?
Yes, but on two conditions. While on furlough leave an employee is still bound by their employment contract and can still contribute to internal investigation or hearing procedures. For example an employee on furlough leave may:
- be the subject of a disciplinary investigation;
- raise a grievance;
- be interviewed as part of an investigation;
- take notes during an interview process;
- chair a disciplinary or grievance hearing;
- take notes during a hearing;
- be a witness at a hearing; and
- may accompany an employee as a companion during a hearing.
However, the employee must not inadvertently return to ‘work’ through their participation, thus contravening the requirements of the Coronavirus Job Retention Scheme. An employee on furlough leave should, therefore, only participate in disciplinary or grievance processes if:
- The employee participates voluntarily; and
- Their participation complies with current public health guidance.
Can a disciplinary or grievance procedure be started/ progressed at this time?
Possibly. These are important procedures and should be continued where possible as delay could exacerbate the underlying issue. However, this must be balanced against administrative limitations and the employer’s duties towards public health and employee wellbeing.
- If the workplace is still open – can interviews and meetings be held privately while adhering to social distancing policies?
- Will gathering evidence require travel and/or interaction that risks public health?
- If working/ interacting remotely – does everyone have access to conferencing equipment?
- Does anyone have a disability which might limit their ability to contribute remotely?
- Can confidential information be kept private and anonymous where necessary?
- Can all the necessary evidence be collated?
- Can the subject of the procedure be accompanied by their desired companion?
- Could the continuation of the process unreasonably exacerbate the state of an employee already experiencing particularly stressful circumstances?
- Could the matter be more fairly managed once employees return to work?
If a grievance or disciplinary procedure is conducted:
- These procedures should be conducted with the same respect and fairness as if conducted at any other time.
- Meetings should be recorded to demonstrate that consideration of the factors detailed about has occurred and to justify the decisions made.
- If in doubt about fair and reasonable process guidance can be sought from us or the ACAS Code of Practice.
Does an employee have the right to be accompanied by a companion?
Yes. Employees are usually permitted to be accompanied by a colleague or union representative at final hearings and/or appeal hearings if they choose to be. This remains the case and the format of the hearing must allow for any companion to make representations on behalf of the employee and talk privately with the employee at any time. Employers should try to facilitate suitable alternative dates where an employee’s chosen companion has limited availability due to the disruption of the Coronavirus pandemic.
Can a video meeting be recorded?
Yes. It is possible to record meetings held while pursuing a grievance or disciplinary procedure, however, this must comply with relevant data protection law. Most meeting may not need to be recorded and a traditional note-taking approach will suffice.
Does an employee still have the right of appeal?
Yes. Employees still have the right of appeal and if submitted the considerations in this guidance would apply to the appeal procedure as well.
Will a delay/ postponement affect an employee’s tribunal claim deadline?
No. Time limits for submitting claims to the employment tribunal will continue in the same way even where a grievance or disciplinary procedure has been postponed.
For more information, please contact our employment team.
Claire Knowles – Partner
Mark Alaszewski – Associate
Rebecca Mahon – Solicitor
Adam McGlynn – Trainee Solicitor