There is no reason why a disciplinary or grievance process needs to be put on hold just because employees are working remotely.
Employers will, however, need to consider whether a full and fair investigation into the issues can still be carried out whilst working under lockdown constraints.
If it is not going to be possible to get hold of important records or documentation because the workplace is closed, or it is not possible to interview key witnesses because of practical difficulties, it may be fairer to delay the outcome of the process until such time as this evidence can be obtained. This will need to be determined on a case by case basis.
If an employee insists on a face to face meeting an employee could argue that it is unreasonable to conduct a disciplinary hearing virtually where there is a risk that they may lose their job, for example the employee may not have privacy in their own home, or they may be unable to properly confer with their companion. Therefore, a face to face meting should be offered as an option given that steps should be taken without unreasonable delay.
In the event that it is both reasonable and practicable to proceed with the process remotely, employers will need to consider the following:
- How will any remote investigation meetings or hearings take place?
A secure platform should be used to ensure confidentiality is maintained, and it should be a platform which all relevant parties have access to.
We recommend using a video conferencing platform, rather than simply audio, so that the employer can see whether there is anyone else in the room listening to the meeting who should not be there, but also because body language and reactions are sometimes important for context.
- What documents should be provided?
The same principles apply to a remote hearing/meeting as to one carried out in person.
To ensure that the process is robust and fair, all parties should be supplied with the relevant evidence and documentation in good time prior to the meeting taking place. Documents should be sent electronically via a secure method.
- How will the employee’s companion take part in the meetings?
It will be helpful for the individual conducting the meeting or hearing to lay down a structure for how the meeting will progress at the start, and to give clear guidance as to how the employee can confer privately with their companion during the meeting if they want to.
It may be easiest to allow the employee and companion to exit the meeting for short periods to confer directly, before re-joining. In this case, it will be helpful if there is a link to the meeting which is circulated beforehand, so that it is not necessary for individuals to be “dialled” back in each time they need to confer and re-join the meeting.
- Does this increase the risk of covert recordings being taken?
Although this may depend on the platform which is being used, it is likely to be much easier for an employee to covertly record a meeting which is held remotely, than it would be normally.
If the employer’s disciplinary and grievance policies make it clear that recording is not permitted and will be treated as misconduct, this should reduce the risk of an employee taking this step.
Alternatively, the employer could just take control and decide to record the meeting itself. It will of course be necessary to notify the employee of this intention beforehand, to give them the opportunity to object, and get them to confirm again at the start of the meeting that they consent to it being recorded.
If recording is the preferred option, it will be important to test this out before the meeting takes place, to ensure a good quality of sound can still be achieved with the remote set-up.
If the meeting or hearing is not being recorded, a full and accurate note of the discussions should be taken by the employer in the same way as it would during an in person hearing or meeting.
At the moment it remains unclear whether internal procedures such as disciplinaries and grievances would need to be paused if the employee subject to the process, or a key witness or player in the process, is furloughed. The government guidance is clear that furloughed employees are not permitted to carry out any “work” for their employer. The guidance defines work as “making money for your organisation” or “providing services for your organisation” but it is not clear whether participating in internal procedures would count as “work”. Would partaking in a disciplinary interview for example constitute the provision of services? Probably not. Whilst the disciplinary issue may arise as a consequence of employment, it does not involve an employee undertaking work for the employer and does not provide any benefit or generate any revenue for an employer. That said, not every disciplinary matter will be capable of progression during a furlough period in any event and it will very much depend on the particular facts of the case. For example, if a disciplinary matter involves numerous witnesses, all on furlough, or complex and serious allegations such as fraud it may be more appropriate to wait until the end of the furlough period.
Either way, communication is key. If it is decided that a disciplinary hearing will be deferred then the employee should be notified of this before they are furloughed. For a grievance process, it will be preferable to obtain the employee’s agreement to defer the investigation into their grievance, rather than imposing this decision on them unilaterally.
It is also important to agree with the employee any changes or variations to contractual disciplinary or grievances procedures to limit the risk of a breach of contract claim.
At present we do not know how long the current “stay at home” instruction will last. However, the longer the current situation remains the status quo, the more likely it is that employers will have to adapt normal working practices and workplace procedures to embrace a more virtual approach.