With social distancing and lockdown measures still being implemented in the UK, many of us have had to make adjustments to a new way of working. This can pose even more difficulties if an employee is dealing with a grievance or disciplinary action. Guidance has recently been published by ACAS so that employers and employees alike know where they stand.
Every employee is different. During this time, some may be facing other stressful circumstances. To add a grievance or a disciplinary matter on top of everything can naturally cause further stress.
For this reason, employers have a duty to carefully assess the following factors:
To those wishing to raise a grievance or are in the middle of a disciplinary action, it will be useful for the employer to outline the various options available to the employee in question. If the procedure is to go ahead, the employer should state what the next steps are. If it is to be postponed, the employer should state the reasons as to why this is.
Furlough
Employees currently on furlough should note that they may still be able to take part in any grievance or disciplinary matter in certain circumstances. This includes if they themselves have raised a grievance, are currently under investigation in a disciplinary procedure or are involved as a party to these hearings. In these circumstances, a furloughed employee can partake provided that they do so voluntarily and that their involvement is in line with public health and safety.
Open workplace
As expected, there are still a number of employees who leave home and make their way to their usual work setting. This includes “key workers” who are still carrying out essential jobs whilst the virus is still present. In this instance, ACAS rules will still apply. In the same vein, employers will need to ensure their next steps are in line with public health and safety. If a grievance or disciplinary meeting is to be held at the workplace, it will need to allow for social distancing and privacy.
Working from home
For the remainder of employees, the majority have had to work from home. ACAS advises that if an employer is to carry out a grievance or disciplinary procedure, this should be conducted in a “fair and reasonable” manner. This means having to use video chat services such as Skype and Zoom. To assess fairness, the employer should take into account aspects such as internet connection, reasonable adjustments for employees who have a disability and even clarity of screens so that those involved can see evidence clearly.
It should be noted that video chats should not be recorded, unless there is a good reason, in which case this should be in accordance with the Data Protection Act 2018.
If the procedure goes ahead…
An employee going through a grievance or disciplinary hearing will have the right to be accompanied, even if this is remotely. During the hearing, the companion has the right to sum up the case, respond on behalf of the employee and talk privately when necessary.
If it is the case that the companion cannot attend at the scheduled date and time of the hearing, the employee can rearrange this provided that the new date is reasonable and not more than 5 working days after the original hearing date. With Covid-19 still very much present, this means that the availability of companion can prove trickier than in normal circumstances. Should there be a delay of more than 5 days, an employer will need to question if this reasonable. Furthermore, If a disciplinary hearing results in dismissal, the employer will need to show that they took steps to avoid unfair dismissal.
Steps to take after the procedure
If after the procedure has gone ahead and the employee feels they want to appeal, they have the right to do so. The employee may also make a claim to an employment tribunal. If so, they will firstly need to inform ACAS. In terms of time limits, the claim should be made within 3 months less 1 day. The same time limits apply even during Covid-19, regardless of whether a disciplinary or grievance procedure has been postponed.
Should the matter be taken to litigation, the courts will check to see if the employer has abided by ACAS’s Code of Practice, all whilst ensuring every action taken by the employer has been both fair and reasonable.
For more information on disciplinary and grievance procedures, please visit the ACAS website here.
Front Row Legal are a boutique law firm that specialises in Sport, Media and Business Law in England and Wales. They have specialist knowledge in these areas of law, which means they can help where many law firms won’t have the experience. They are based in Leeds with a national client base. frontrowlegal.com
