Covid-19: Managing disciplinary and grievance procedures remotely

The increase in remote working since the outbreak of COVID-19 has posed practical challenges for employers, including managing remote disciplinary and grievance procedures, which before now would almost always be held in person.

This rapid shift to remote working has been an emotional roller coaster for many employees. For HR managers, this period of lockdown has possibly been the most challenging period of their careers, and is predicted to result in a huge cultural shift for many businesses as employers and their staff are now appreciating the real benefits of the flexibility offered by remote working. Even as office staff begin a gradual return to work, remote hearings are likely to continue for some time. So what lessons have been learned from the past few months?    

Remote grievance and disciplinary procedures – are they fair and reasonable?

Faced with additional pressures, it may be tempting to try to take shortcuts when it comes to conducting grievance and disciplinary processes remotely – perhaps key evidence is at the office and you haven’t been able to get there yet; perhaps a witness is furloughed or on sick leave; or perhaps the subject is unable to attend remote hearings at certain times of the day as they have caring responsibilities. It is particularly important to ensure that by proceeding with grievance or disciplinary procedures remotely, the overall fairness of the process is not impacted and you don’t act unreasonably.

The following considerations are particularly important for HR managers when deciding whether to proceed with, or delay, a remote disciplinary or grievance procedure:

• The individual circumstances and nature of the case – is it particularly sensitive, serious or urgent?
• The current status of the relevant parties including any managers or other personnel who would assist with the process – are they working remotely, present in the workplace, or furloughed?
• Is it possible to conduct the procedure safely, fairly and reasonably?
• Can any adjustments be made to the usual process so that it can still proceed fairly and without unreasonable delay?
• If the procedure must be carried out remotely, what would be the limitations, if any, to this?
• The impact on the wellbeing of the parties involved if the process is delayed – you should bear in mind that the current climate may already be causing increased levels of stress.
• What does the internal disciplinary or grievance policy say?

HR managers should not forget the importance of involving the relevant parties in the above considerations, even if it is more challenging to have these conversations remotely. 

Technology and reasonable adjustments

Effective use of technology has been essential to employers in being able to make the procedures as streamlined to the ‘normal’ processes as possible.

Here are some important lessons that conducting grievance and disciplinary processes remotely has highlighted:

• Video conferencing, in place of audio-only meetings, has been the preferred method for employers, aligning more closely with how the process would be in the office. To ensure the meeting runs as smoothly as possible, HR managers should check that all parties involved have access to the proposed conferencing technology and carry out a test run prior to the meeting taking place.
• You should of course always ensure that the technology being used is secure and access to video meetings should be protected by a password. Those involved in the process should be reminded of their legal duties of confidentiality and any relevant confidentiality policies.
• It is also advisable to confirm with the employee that they do not have anyone sitting in on the meeting with them (outside of any companion allowed in a grievance hearing). Even innocent parties such as children and pets prove to be a distraction and should be discouraged where possible.
• Remote meetings/hearings have placed further emphasis on the importance of considering whether the employee involved has a disability that might affect their ability to use the technology. For example, a deaf employee that uses sign language/lip reading will require video calling as the method of communication. You must therefore consider what reasonable adjustments can be made to assist employees during these processes.

Evidence

One of the key challenges for HR managers has been ensuring that all parties have the same set of documents during remote meetings/hearings and can easily refer to the evidence in discussion. You should therefore consider sending documents well in advance of the remote meeting and these should be paginated for ease of reference. Evidence should be limited to necessary documents only as large volumes are difficult to refer to when reviewing remotely.

A "share screen" function is also advisable for the Chair so the parties can review evidence at the same time.

If there is a bundle of documents, this should be circulated electronically in advance, ensuring that the documents are sent securely. You should also consider whether alternative formats, such as hard copy, are needed.

Gathering witness evidence has also presented challenges for employers due to the logistical difficulties associated with interviewing witnesses remotely. Therefore, when deciding on the number of witnesses, you should be mindful of the practicality of remotely interviewing a large number of these and whether it may disturb any periods of furlough leave.

Covert recordings

Conducting meetings remotely has brought with it the increased risk of secret recording.  

Employees who are wearing ear pieces to receive secret advice from their lawyers and employees reading from scripts prepared in advance by their lawyers are the reality that employers are having to grapple with.

Recording meetings is generally prohibited unless all parties have agreed, and could constitute misconduct. You should therefore check that your disciplinary and grievance policies cover recording of meetings. If they expressly state that recordings are prohibited, this should be highlighted to the employee at the beginning of the video meeting. They should be asked to confirm that they are not recording the meeting, and reminded that they do not have a legal right to do so. Where parties have agreed to use a recording facility, this has proven to be a useful alternative to taking notes. You should therefore consider agreeing this with employees where appropriate.

You should bear in mind that evidence gathered secretly may still be admissible in an Employment Tribunal in certain circumstances.

Furloughed employees

If an employee has been furloughed, they can still submit a grievance or be subject to a disciplinary procedure. ACAS has published guidance which confirms that someone on furlough can take part in a disciplinary or grievance investigation or hearing so long as they are doing it voluntarily and it takes place in line with public health guidance.

However, you should be aware that there is a risk that acting as an investigator, meeting chairperson, note taker or even potentially a witness whilst on furlough constitutes "work" under the furlough scheme. To eliminate this risk, the relevant employee should be put on part time furlough and be paid their usual wages during the period they are required.  Since the government introduced flexible furlough from 1 July, this has been made easier than under the original Job Retention Scheme which required employees to be furloughed for a minimum of 3 weeks. Read our client guide on the new flexible furlough scheme.

What next?

Pre-COVID-19, remote working was regarded as a possibility but not a real option for many jobs on a regular basis.   The pandemic has accelerated changes which many would not have foreseen just six months ago.   This autumn we are planning a webinar and further articles where we will explore the issues which will help HR prepare for these changes including:

• How will approaches to flexible working and “presenteeism” change in a post-Covid world?

  • Has there been a change in employer and employee expectations? 
  • How can employers manage mass flexible working requests? Requests to work from abroad?
  • Can the core working hours model survive a more flexible culture?
  • What discrimination risks come into play with extended home working in the continued pandemic?
• Embedding acceptable behaviour and combating remote bullying and harassment in a home working culture
• Will Covid advance or set back progress on advancing a diverse and inclusive culture?  What can you do to advance your cultural brand through the pandemic?

If you have any questions or would like advice on any of the issues raised here, please get in touch with your usual Clyde & Co contact.