Article written by Simran Lalli, Solicitor, Employment department
While many workplaces continue to be affected by the COVID-19 pandemic, employment law and the ACAS Code of Practice concerning disciplinary and grievance procedures still apply. If you are facing disciplinary action or grievance procedures, you should be aware of your rights and how these might be affected by COVID-19 restrictions.
Furloughed workers
If you are currently on furlough, it is still possible to be involved in disciplinary or grievance procedures. Whilst on furlough, you may:
- Take part in a grievance or disciplinary investigation or hearing; and
- Raise a grievance.
Practical challenges
Under the ACAS Code of Practice on disciplinary and grievance procedures, disciplinary and grievance procedures must always be fair and reasonable. However, as the pandemic continues, they must also be in line with public health guidelines, including social distancing and avoiding attending workplaces, where possible. As a result, there may be practical challenges to holding disciplinary or grievance procedures, but they must continue without undue delay. Your employer must attempt to proceed in a safe, fair and reasonable manner. If this is not possible, they must consider whether it would be fair to suspend proceedings until a later date.
Suspending proceedings
In deciding whether proceedings should be suspended, your employer should consider the case’s individual circumstances. For example, the matter may be urgent, where it deals with gross misconduct or unlawful harassment. However, minor disciplinary issues may be dealt with at a later date, where appropriate.
If your case may result in an employment tribunal claim, your employer must be mindful of the time limit for bringing a claim.
Can a disciplinary or grievance procedure be carried out remotely?
Video meetings can form part of any investigation into disciplinary or grievance matters. Your employer may conduct a video meeting, interview or hearing as long as the process is fair and reasonable. Your employer must consider whether:
- All parties have adequate access to the technology required to take part in a video meeting;
- Any party has a disability or any other accessibility issues which may affect their ability to take part;
- It is possible to access all of the evidence required to conduct the investigation or hearing, and whether all parties can access the evidence during the video hearing; and
- It is possible to assess the evidence and question the relevant parties fairly during a video hearing.
Will a video hearing be recorded?
Employers must keep a record of any disciplinary or grievance procedures carried out, and such procedures conducted via video may be recorded. However, all parties must agree to the meeting being recorded beforehand.
If you require advice on disciplinary and grievance procedures during the pandemic, please do not hesitate to contact me via email or call the employment team on 020 8858 6971.