Terms that have recently become part of our day-to-day vocabulary, including social distancing and remote working, must now be considered when developing employment practices.
Disciplinary and grievance procedures are important areas businesses must now reconsider. Not only do organisations need to comply with local laws and practices, they must also determine how to best to handle employee-related issues in a way that ensures the safety of staff and protects the business from potential liabilities that may not have been a consideration just a few months ago.
The legal position
Laws and other rules relating to disciplinary and grievance procedures vary by jurisdiction. In the EU, for example, businesses often must account for any relevant collective bargaining agreements or equivalent, in addition to applicable laws.
In this article, we've used the United Kingdom's laws and guidance to explain how an organisation's procedures might be altered to account for social distancing and remote working. The observations here will be broadly applicable to most jurisdictions, but we recommend obtaining country-specific support when conducting a disciplinary or grievance process to ensure compliance with local laws and other obligations.
A case study: Disciplinary and grievances in the UK
First considerations for employers
In May 2020, Acas released new guidance on disciplinary and grievance procedures during the coronavirus pandemic. It confirms that the Acas Code of Practice - which sets out minimum procedures for organisations to follow - still applies during the pandemic. This means that businesses must consider two main issues:
- Whether a procedure can be carried out fairly; and
- Whether a procedure can be carried out safely.
Fair procedures and accounting for remote working
Assessing whether a procedure can be conducted fairly should be done on a case-by-case basis. This applies equally to staff who have returned to the office and those who continue to work remotely.
Under the Acas Code of Practice, a fair disciplinary or grievance procedure involves certain steps that protect the employee, such as holding meetings privately and without "unreasonable delay," and ensuring the independence of senior staff members involved. Crucially, employers must make sure that employees have the right to be accompanied by a trade union representative, co-worker or other representative during meetings, and that employees have the right to appeal.
When determining whether or not a remote procedure can be conducted fairly, an employer must first ensure that all parties involved have access to the technology required to provide and review witness statements and other evidence.
Employers must also consider an employee's right to be accompanied by someone such as a trade union representative. In that example, the representative must be allowed to confer privately with the employee at any point during the remote proceedings. They must also be allowed to present, or respond to, matters of the case.
Safe procedures and accounting for public health guidance
Under UK law, employers have a duty to ensure the health and safety of their employees. In-person procedures and meetings should only be conducted where they will allow compliance with applicable public health guidance and social distancing rules.
Employee wellbeing should also be a factor when developing and carrying out any procedure, as should any health vulnerability of an employee. For employees with disabilities, employers must ascertain whether they must make reasonable adjustments to conduct a procedure fairly and safely, including determining whether a remote procedure is suitable.
Effective communication is a key element to successful disciplinary and grievance procedures. Employers must consider when it is both safe and fair to proceed with a disciplinary or grievance process and should keep the employee up-to-date throughout the process. Employers should also be mindful not to use pandemic-related circumstances as an excuse to delay an employee's disciplinary or grievance proceedings.
Ultimately, coming to an agreement with an employee about how to proceed will help resolve many issues posed by remote working and social distancing. However, an employer should not proceed unless both parties agree that it is safe and fair to do so.
Reviewing procedures and policies
Before taking any action, employers should review their organisation's written disciplinary and grievance procedures to ensure they're up-to-date and in compliance with local laws. In the UK, for example, it's a statutory requirement to have certain disciplinary and grievance procedures in place. Each procedure should, at minimum, reflect the Acas Code of Practice.
If an amendment needs to be made to a non-contractual procedure in order to account for remote working, or if a written procedure is contractual and you're unable to follow it, we recommend seeking authoritative third-party guidance to reduce risk.
Impact of employees on furlough leave
The latest Acas guidance suggests that employees on furlough leave can submit grievances and be subject to disciplinary proceedings. There is a risk, however, that Her Majesty's Revenue and Customs (HMRC) would consider this "carrying on work" for the employer, which could affect the eligibility of a claim under the Coronavirus Job Retention Scheme.
Rather than following Acas guidance, HMRC will likely follow directions from the UK Treasury, in addition to any of its own guidance. For this reason, employers should seek initial legal advice for any procedure involving a furloughed worker.
The consequences for any UK employer that fails to follow fair disciplinary or grievance procedures have not changed. In UK employment tribunals, failure to comply with the Acas Code of Conduct can result in an increased award of up to 25 percent. If there's a possibility that a procedure may result in an employee's dismissal, the employer should take particular care to act fairly in all aspects of that procedure, so they can mitigate the risk of a potential unfair dismissal claim.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.