Many employers have furloughed members of staff now, or are doing so at the moment, or have people working from home where they wouldn’t normally be doing so.
In many cases the impact of coronavirus on employers has been rapid, and in the space of a few weeks a business has either closed completely or the way is it operating has fundamentally changed.
Whilst all our heads are still spinning, something many managers are wondering is what to do with any disciplinary or grievance processes that were already starting or about to be started at the time all this happened. Should you continue those processes or put them on hold?
For the same reasons as before all this happened, it is vital to ensure a fair process for any disciplinary or grievance matters. Whilst a process must be ‘reasonable’, and the fact that meetings cannot be held on the premises doesn’t necessarily mean you can’t proceed, you may be vulnerable to a legal claim if the process you do use is not seen as fair and reasonable in the circumstances.
Here are some things to consider when making your decision.
Are they furloughed?
If someone is furloughed then they are not allowed to do any work for the employer, and it is possible that requiring them to attend a disciplinary hearing would or could be considered work. This doesn’t in itself mean you can’t proceed, however to avoid the risk of jeopardising your furlough pay claim you would bring them ‘back’ from furlough (which you can do, even for only a day), and ensure the furlough period isn’t less than three weeks.
Right to be accompanied
Employees attending a disciplinary or grievance hearing have the right to be accompanied by a trade union representative or a colleague if they wish to. If they do wish to be accompanied and everyone is comfortable with this happening virtually, with an accompanying colleague or union rep on the other end of a Zoom call or similar, that might work fine. But if the employee wants to be accompanied, and current circumstances mean accompaniment cannot happen, you run the risk of a claim that a fair process was not conducted if you proceed anyway.
Many people are working well from home using video conferencing technology to replace meetings and team discussions, which is great. But don’t forget not everyone has access to suitable technology or is comfortable using it. Depending on the makeup of your workforce, the type of roles they are in and their personal circumstances, it may be that you are looking at a disciplinary process with someone for whom this would be too challenging.
In the office you would conduct this kind of process in a meeting room away from noise and disruptions. In someone’s home they may not be able to achieve this. Many employees have children at home due to school closures, for example, and if they are working in between supervising home education they are unlikely to be able to attend a ‘hearing’ in a suitable environment.
How urgent is it?
Even if you can make arrangements for a virtual hearing that everyone is satisfied with, it would always be preferable to do it in person, so a decision whether to go ahead should be taken with this in mind. Is the issue you are dealing with one that really cannot wait? If it is a grievance, is the employee keen to have it heard regardless of not being able to do an in-person meeting? Could any sanctions or actions resulting from the process actually be implemented anyway?
If the process could be paused without negative impact, it may well be best to do this for the time being, with a view to being able to pick it up again in a couple of months. If it turns out to be longer and it really cannot wait any more, you can revisit.
If you’d like some assistance with managing a disciplinary or grievance process during a lockdown, do get in touch.