We are increasingly being asked by clients to advise on where they stand in terms of their ability (and obligation) to conduct disciplinary and grievance procedures during the ongoing lockdown period, especially as businesses start to gear up for some sort of return to operating in the coming weeks.
As many will know, ACAS has recently issued updated guidance on how disciplinary and grievance processes should be conducted in the current climate. The guidance makes it clear that the law and the ACAS Code of Practice on Disciplinary and Grievance Procedures continue to apply during the Coronavirus pandemic, whilst social distancing and lockdown measures are in place.
One key consideration for employers is whether it would be fair and reasonable to commence or continue a disciplinary or grievance procedure whilst employees are working from home. The guidance states that it is, provided that the process can either be carried out remotely or in a manner which upholds social distancing and other public health guidelines in the workplace.
Additionally, the guidance goes one step further and suggests that it may be fair and reasonable to commence or continue a grievance or disciplinary procedure whilst employees are on furlough leave. We are not convinced this is correct however for reasons explained later.
Interpreting the guidance literally, it states that an employee can still raise a grievance where they are working from home or on furlough leave and an employer can conduct a disciplinary or grievance process where an employee is working from home or on furlough leave. The guidance states that a person is permitted to take part in a disciplinary or grievance investigation in one of the following capacities:
• They are under investigation in a disciplinary procedure.
• They have raised a grievance.
• They are chairing a disciplinary or grievance hearing.
• They are taking notes in a hearing or during an investigation interview.
• They are being interviewed as part of an investigation.
• They are a witness in a hearing.
• They are an employee’s companion for the hearing.
It is important to note that under the ACAS guidance employees participating in a disciplinary or grievance investigation must be doing so voluntarily, in accordance with current public health guidance and in a manner which maintains an appropriate degree of privacy.
The suggestion that employees must be participating in a disciplinary or grievance investigation voluntarily seems to be at odds with the way in which normal grievance and disciplinary procedures are conducted. Generally employees are not expected to volunteer but are required to participate in such processes by the lawful instruction of their employer. A more practical application of this rule seems to be that subject to any health concerns, employees could be expected to participate in a disciplinary or grievance process whilst working from home where all measures have been taken in accordance with public health guidelines. For example, where the process is to be conducted virtually by Zoom or another similar platform.
Where employees are working from home employers will need to decide whether the procedure can still be carried out in a fair and reasonable manner. Key considerations include:
• Whether the matter needs to be dealt with urgently or if it would be dealt with more fairly when people are able to return to the workplace.
• Whether anyone involved has a reasonable objection to the procedure going ahead at this time.
• Whether everyone involved has access to the technology needed to conduct the process remotely.
• Whether anyone involved has a disability or other accessibility issues which may affect their ability to use video technology and if so, whether any reasonable adjustments may be required.
• Whether witness statements or other evidence can be seen clearly by everyone involved during the hearing.
• Whether it will be possible to obtain the evidence needed for an investigation or hearing. For example will there be records and files which are kept in the workplace and therefore inaccessible?
• Whether it is possible for the person under a disciplinary investigation or the person who raised the grievance to be accompanied during the hearing and, where appropriate, whether it may be appropriate to agree to a delay of more than 5 days to accommodate a companion.
Employers should give careful consideration to the health and wellbeing of its employees when deciding whether or not a disciplinary or grievance procedure should go ahead. Being involved in a disciplinary or grievance procedure is stressful for employees in normal circumstances and will be exacerbated in the current climate.
If an employer decides to go ahead with the procedure, or chooses to postpone, it is important that the decision and the reasoning is properly communicated to all those involved. Employers must also ensure that the ACAS Code of Practice on Disciplinary Procedures and Grievance Procedures is still followed.
Turning to the ACAS guidance relating to the participation of employees who are furloughed, this appears to be in contradiction with the guidance issued by HMRC and the Treasury, which requires employees to “cease all work” during furlough leave.
It is likely that HMRC will favour its own guidance and the Treasury direction over that of ACAS when carrying out any audits into payments made under the Coronavirus Job Retention Scheme (CJRS). There is a strong argument that acting as an investigator, meeting chairperson or notetaker for an employer or, potentially, even a witness is likely to amount to “work” for the purposes of paragraph 6.1 of the Treasury direction and is providing a service for the employer contrary to HMRC’s employers’ CJRS guidance. Therefore, requiring employees who are on furlough leave to participate in a disciplinary or grievance procedure could mean that an employer is unable to claim repayment of wages under the CJRS.
Despite the easing of lockdown measures, for the time being guidance remains that those who can work from home should continue to do so. Therefore, until things return to some resemblance of normality, the guidance above provides a useful summary as to how employers should handle disciplinary and grievance matters for those who are working from home. However, it is advisable that despite the guidance above, employers err on the side of caution and refrain from commencing or continuing with a disciplinary or grievance process where an employee is on furlough leave and required to participate as an investigator, chairperson, notetaker or witness in order to minimise the risk of the clawback of any payments made under the CJRS.
It is unclear from current guidance whether HMRC would deem the participation of a furloughed employee in their own disciplinary or grievance process (ie not in the capacity of an investigator, chairperson, notetaker or witness) to be classed as “work” under the Treasury direction. A suitable analogy to be drawn here is the fact that, assuming that an employee is deemed to be well enough, they can be compelled to participate in a disciplinary or grievance process when off work sick. There is therefore an argument that the same principle applies to employees on furlough leave. However, this is merely our interpretation of the guidance and further clarification from HMRC on this point is awaited.
The key for employers is to weigh up the severity of the need to deal with the matter promptly against the potential loss of the affected employees’ furlough pay under the CJRS. In some cases it may be that the need to deal with a matter immediately whilst an employee is on furlough leave outweighs the risk of a clawback under the CJRS. It is likely that these are the sorts of problems that employers will face regularly in the present climate and it will be important to assess each case on its own merits.
We attach a link to the full ACAS guidance here https://www.acas.org.uk/disciplinary-grievance-procedures-during-coronavirus?mc_cid=c204b8082e&mc_eid=fe64ff2749
Should you require any support or assistance on how to conduct disciplinary and grievance procedures in the current climate, please do not hesitate to contact a member of the Employment team.
