Employers should have policies and procedures in place to deal with disciplinary and grievance matters that may arise during the employment relationship. More importantly employers should make sure that those procedures are followed. Failure to adopt a fair procedure when dismissing an employee could amount to unfair dismissal even though there may have been substantive grounds for the dismissal itself.
It is also important that the policies and procedures meet the minimum requirements set out in the ACAS code of practice for disciplinary and grievance matters. An employer who fails to adopt these minimum standards may find an award in the employment tribunal is increased by up to 25%. Given that the maximum award in an unfair dismissal case is 52 weeks wages or £88,519 (whichever is lower) any uplift on an award is severe punishment for those that fail to adopt proper procedures.
This raises the interesting issue of how an employer can complete disciplinary and grievances in accordance with its own procedures, and the ACAS code of practice, during the current pandemic. Employers may have members of staff on furlough who decide to raise a grievance or that may have been the subject of a disciplinary hearing prior to lockdown. Other employers will have members of staff that continue to work which can bring about disciplinary or grievance issues.
Conducting a disciplinary or grievance may cause a conflict for employers between the need to comply with their own procedures and/or the ACAS code of practice – which suggests that investigations and hearings should take place without unreasonable delay – and the need to protect the safety of all employees in these unprecedented times. Whilst I do not consider that an employer would be criticised for delaying a disciplinary hearing, ACAS have sought to assist employers in resolving this conflict by issuing guidance on the handling disciplinary and grievance processes during the coronavirus crisis.
Please follow the link to the ACAS code of practice: https://www.acas.org.uk/disciplinary-grievance-procedures-during-coronavirus
The primary question facing employers is “should the disciplinary or grievance hearing proceed?” The answer to this question may depend on a number of factors including but not limited to: – (i) is it a disciplinary or grievance; (ii) how detailed an investigation will be required; and (iii) what is the severity of the allegation i.e. in the case of a disciplinary matter is it a misconduct matter or a gross misconduct offence.
If an employer decides to continue with the process they will need to make sure that each step is completed in a way that follows public health guidelines around social distancing and closure of business premises. This may render face to face meetings impossible leaving employers with no choice but to consider alternatives such as telephone or video hearings.
Some disciplinary and grievance policies may allow an employer to modify its procedures without the need for agreement with the employee, however it is important to check the circumstances in which this can be invoked particularly if the policy is a contractual policy. It is recommended that employers keep an open dialogue with the employee and seek agreement on how best to complete the process to prevent any argument that they have been treated unfairly.
The new guidance issued by ACAS also addresses some key points to consider. Failure to consider these points may render the process unfair.
What if someone of furloughed?
Furloughed employees can still take part in a disciplinary or grievance investigation or hearing provided that the employee is;
The employee must be doing it of their own choice (i.e. voluntarily) in order to comply with current guidelines for the Coronavirus Job Retention Scheme. This raises a question as to what to do if someone is refusing to participate; given they have to volunteer to take part suggests therefore that proceedings could be put on hold until after furlough.
The right to be accompanied
Employees have a statutory right to be accompanied at a disciplinary or grievance by a work colleague or trade union representative. Failure to allow for a companion to be present may make the process unfair and entitle the individual to claim unfair or constructive dismissal. It would also give the employee the right to complain to the employment tribunal that its statutory right has been compromised, which could result in an award of not more than 2 weeks wages.
Employers should make sure that any adapted procedure can still allow for this right to be fulfilled. For example, if a disciplinary hearing is conducted by telephone or video then this must allow the chosen companion to also attend and participate as they would if the hearing was in person, which includes:
Ordinarily, an employee is entitled to ask for the hearing to be delayed by no more than 5 working days where the employees chosen companion is not available. During the pandemic, the availability of an employee’s chosen companion might be more limited and so employers should consider if a delay of more than 5 days is reasonable in the circumstances.
Recording video meetings
Most employers will prevent the recording of disciplinary and grievance hearings and instead rely on notes taken during the hearing to provide an account of what was said and decided.
If an employer conducts a video meeting this may provide a facility to allow the meeting to be recorded. For most matters there will be no need to record the meeting. However, if it is felt that there is a good reason to do so, employers should ensure that data protection laws are adhered to, including the need for the individual to consent to the meeting being recorded.
The employee’s right of appeal
The employee’s right to appeal still applies and again should be completed considering public health guidelines around social distancing and closure of business premises.
The disciplinary and grievance process is an important step to protect an employer against future claims. During these uncertain times it is important that a fair and proper procedure is followed. Should you have questions about the disciplinary and grievance process or a specific query about an individual employee please contact our employment team on 01254 828 300.