While the coronavirus pandemic continues to affect many workplaces and necessitate various changes, it is important to recognise that the ACAS Code of Practice concerning grievance and disciplinary procedures still applies and has not been relaxed.
If you are involved in disciplinary action or grievance procedures, it is important to be aware of the various rights that still apply and how these might be impacted by the current, and ever changing, situation. The notes below highlight some additional points to be considered during these processes at this time:
It remains possible for furloughed workers to be involved in a disciplinary procedure or raise a grievance.
Under the ACAS Code, disciplinary and grievance procedures conducted must always be fair and reasonable, but they must also adhere to the current public health guidelines, including social distancing and avoiding workplaces where possible. As a result, there may be additional practical challenges to accommodate these requirements.
Employers must attempt to proceed in a safe, fair, and reasonable manner without undue delay. If this is not possible, they must consider whether it would be fairer to suspend proceedings until a later date.
To decide whether proceedings should be suspended, employers should consider the individual circumstances. Matters dealing with gross misconduct or unlawful harassment may be urgent, however minor disciplinary issues may be dealt with at a later date where appropriate.
If the dispute underlying the procedures could result in an employment tribunal claim, it is important to be aware of the relevant time limit. For example, in most claims, the time limit is three months less one day from the particular incident, however for certain claims, such as equal pay, the time limit is 6 months.
To be able to proceed without delay, the employer may conduct a remote video meeting, interview or hearing so long as the process is fair and reasonable. The employer will need to ensure that:
• All parties have access to the technology required to take part, including any support for the employee from a trade union rep or colleague;
• Parties who are disabled or have accessibility issues are able to participate;
• It is possible to access and assess all of the evidence required to conduct the investigation or hearing; and
• It is possible to question the relevant parties fairly during a video hearing.
Disciplinary and grievance procedures conducted via video may be recorded, however, everyone involved must give their consent to the recording being made.