The Acas Code of Practice on disciplinary and grievance procedures still apply during the coronavirus pandemic. Acas’ new guidance is supplementary to the Code of Practice and provides useful guidelines for employers dealing with such procedures in the current climate.
Employers are still able to carry on with or start a disciplinary or grievance procedure, but they are advised to consider whether it would be fair and reasonable to do so while employees are furloughed, working remotely from home or adhering to social distancing and other public health guidelines in the workplace.
The new guidance lays out a number of factors which employers should consider when deciding whether to proceed with or postpone a disciplinary or grievance procedure, including whether the process can be carried out in line with public health guidelines. Employers are also encouraged to give consideration to the health and wellbeing of their employees and talk through the options available with those involved prior to making any decisions.
The guidance notes that going ahead with the procedure may mean using technology, such as video meetings, during investigation interviews and hearings. Employers will need to consider whether those involved have access to the technology required. If anyone involved has a disability, this may impact their ability to use video technology and the employer may have a duty to make reasonable adjustments. Notably employees have a right to be accompanied to a disciplinary or grievance hearing, even if this is conducted via a video call.
The guidance further states that furloughed employees can take part in a hearing or investigation, provided that participation is voluntary and in line with public health guidance. Participation in such procedures may include:
- being under investigation under a disciplinary procedure;
- raising a grievance;
- chairing a meeting;
- taking notes at a hearing;
- being interviewed as part of an investigation;
- being a witness at a hearing; or
- being an employee's companion at a hearing.
The above should be approached with caution as according to HMRC guidance employees are not permitted to undertake work for their employer during furlough leave. There is a risk that activities such as taking notes at a hearing or chairing a meeting for the employer may constitute work within the meaning of the scheme.
The Acas guidance notes that normally there will be no reason to record meetings held by video. The parties must remember to comply with data protection laws.
Please note: Nothing in this article constitutes legal advice and we are not liable for any reliance on the information provided. This is a rapidly changing subject, and whilst correct at the time of writing, circumstances may have changed since publication.
To find out more about anything covered in this article, or to discuss the potential impact of COVID-19 on your business, please contact Neha Sarin or another member of Thrings’ Employment and Immigration team.
