The ongoing pandemic has resulted in ACAS (www.acas.org.uk) having to update their guidance to employers so that there is transparency on the impact of social distancing on Disciplinary & Grievance Procedures.
Employers will need to decide if it would still be fair and reasonable to carry on with or start a disciplinary or grievance procedure while:
People are on temporary leave because of coronavirus, or on furlough.
Following social distancing and other public health guidelines if they are in the workplace.
People are working from home, and it would have to be carried out remotely.
The guidance highlights that employees may currently be facing stressful circumstances and encourages employers to talk through the options with everyone involved before deciding whether to proceed.
Handling a Grievance
As an employer you need to have reasonable procedures in place to resolve workplace disputes.
Resolving workplace disputes quickly and effectively is good management practice, and ensures that employees are not treated arbitrarily, unfairly, or inconsistently. It can also allow the opportunity to deal with an issue before it escalates into a more serious issue or becomes a potential employment claim.
Written grievance procedures should be published so that employees will know what to do if they have an issue about any aspect of their working life. Relying on an unwritten, informal procedure as your company grows carries the risk of inconsistent application and interpretation as well as employees being left unsure of how their workplace dispute will be resolved.
It is a legal requirement for your grievance procedure to be in writing and you must give the employee written notice telling them where they can see a copy of your grievance procedure.
A Reasonable Grievance Procedure
Grievances must be addressed within a reasonable time; the problem will not go away by ignoring it. It will almost certainly escalate, causing ill-feeling between the employee and the company that could give rise to further grievances, and in the worst-case scenario, could end up with a claim against the company for unlawful constructive dismissal.
These problems can be prevented in many cases by treating grievances seriously and dealing with them promptly and in a reasonable way.
With a national lockdown affecting all our lives, employers must weigh up the options of postponing grievance procedures or dealing with them whilst employees are working from home or furloughed.
Grievances during lockdown
Employers have had to respond to the unique challenges faced by the Covid-19 pandemic, adjusting to the current lockdown by supporting many employees working remotely from home. This poses potential challenges in running disciplinary, performance and grievance procedures with the workforce.
It is important to keep in mind that where possible the usual standards will apply. This means that an employer must decide if it would be fair and reasonable to start or continue a disciplinary or grievance procedure whilst an employee is furloughed, or working remotely from work, whilst also ensuring that public health guidelines are being followed.
Guidance from ACAS states that if it is voluntary to do so, an employee could participate in an investigation or a hearing either as the subject of the proceedings, the chair or notetaker, or as witness or companion under the statutory ‘right to be accompanied’. This brings up an interesting point on the voluntary nature of a disciplinary hearing. ACAS states that an individual must be “doing it out of their own choice” but often, people do not feel as though a disciplinary hearing is a voluntary matter. This may well lead to trade union representatives advising members that they do not have to cooperate.
If an employer decides to delay a grievance, disciplinary or performance issue then they must ensure that alternative measures are put in place to prevent any escalation. For example, if there was an issue between an employee and their line manager then it might still be possible to appoint a different interim manager during the lockdown if appropriate. However, if action is not taken then the reason for any delay should be explained to the employee and documented.
Whilst an employer would probably prefer to avoid launching a disciplinary process during the lockdown, it may prove necessary if there is suspected misconduct whilst an employee is working from home.
Employees have the right to be accompanied at disciplinary and grievance hearings and this is still the case when participating in the process remotely. Whilst remote working makes physical face-to-face meetings unlikely, there is no reason why a grievance or disciplinary procedure could not be handled remotely with attendees joining via MS Teams, Zoom, etc.
When carrying out a procedure remotely it is important to consider the following:
Everyone involved has access to the necessary technology needed for an online meeting.
All necessary files and documents can be gathered i.e., no evidence is locked away in the office during lockdown.
All disabilities have been considered and reasonable adjustments have been made.
Any evidence or witness statements can be seen clearly by all involved.
Ensuring permission from all involved is sought before recording any meeting.
The right for an employee to be accompanied at a disciplinary or grievance hearing still applies during the coronavirus pandemic. The employee’s chosen companion must be able to attend the hearing and fully participate in it.
Any hearing must be set up to allow the employee’s chosen companion to:
Put and sum up the employee’s case if the employee wishes.
Respond on behalf of the employee to anything said.
Talk privately with the employee at any point.
The right to be accompanied allows the employee to suggest another time and date if the employee’s chosen companion cannot attend at the time or date of the hearing. This is if it is reasonable and not more than 5 working days after the original hearing date. If the companion is not available for a longer period, the employer should consider if a delay of more than 5 days may be reasonable. This is particularly crucial if the hearing might result in dismissal, as the employer must always act fairly to avoid an unfair dismissal.
Ensure you have a grievance policy and procedure in place and that this is published and accessible to all
Maintain complete transparency with all involved in the grievance procedure
Seek advice if you are unsure of the process of require support to manage the process
Stay updated on any changes being made by ACAS