What are the key things employers should consider when deciding if a disciplinary or grievance procedure can continue during the COVID-19 pandemic?
The Acas Code of Practice on disciplinary and grievance procedures still applies during the COVID-19 pandemic. However, employers must decide if it would still be fair and reasonable to carry on with, or start, a disciplinary or grievance procedure while staff are on furlough, following social distancing measures in the workplace or working from home.
When deciding whether to proceed with a disciplinary or grievance process, employers must give careful consideration to the health and wellbeing of employees and give a clear explanation for their decision to continue or postpone the process.
According to Acas, the key points to consider are as follows.
- If a workplace is open, can the procedure be carried out in line with public health guidelines?
- If staff are working at home, and depending on the circumstances and sensitivity of the case, does it need to be dealt with urgently? Has anyone involved made a reasonable objection to the case progressing?
- Can video hearings be utilised fairly? I.e. do those involved have the relevant technology, are any reasonable adjustments required for those with a disability, is all the relevant evidence available and can the evidence be properly presented and tested through a video hearing?
- The right to be accompanied remains even if the hearing is being carried out by video. Is the employee representative able to attend and can they liaise with the employee during the course of the hearing privately?
It’s important to remember that there is no right to record video hearings and that the employee’s right of appeal still applies.
Many employers have their own individual disciplinary and grievance procedures but the Acas principles are a benchmark when advising members who might be subject to internal processes at this difficult time.
Joanne Galbraith-Marten
RCN Head of Legal (Employment)
