ACAS has released new guidance for employers seeking to start or continue with disciplinary or grievance proceedings during coronavirus (COVID-19).

 

The guidance confirms employees can still raise a grievance or be subject to a disciplinary whilst they are working from home, following social distancing in the workplace, or on furlough. However, employers must consider if they can carry out a fair and reasonable procedure and the guidance sets out a number of factors to take into consideration.

 

Carrying Out a Fair Procedure

 

Normal employment law principles and the ACAS Codes of Practice continue to apply during the pandemic. Employers must comply with public health guidelines when arranging a process.

 

Furloughed employees can participate in a disciplinary or grievance investigation or hearing provided they are doing so voluntarily. However, where staff are working from home or furloughed, employers should consider whether it is reasonable in the individual circumstances to proceed, or whether it would be preferable to postpone. The views of those involved should be taken into account.

 

The right to be accompanied still applies and the employee's companion must be able to attend and participate in the hearing . If a delay is requested to facilitate a companion's attendance, employers should consider whether a delay of more than five days is reasonable if the companion's availability is more limited than usual.

 

Health and Wellbeing

 

Employers should give special consideration to staff health and wellbeing when deciding how to proceed with disciplinaries and grievances. It is sensible to talk through options with those involved in respect of when to proceed and how, and agree a way forward.

 

Accessibility and Reasonable Adjustments

 

If the hearing is held via remote video conferencing, employers should consider the participants' ability to access the required technology. Where participants have a disability or accessibility issues, reasonable adjustments to the process will be required. Additionally, written evidence will need to be seen clearly by all participants during the video conference, for example using a screen share facility.

 

Video meetings should not generally need to be recorded, but if they are then usual data protection considerations will apply.

 

The ACAS guidance applies equally to appeal hearings and highlights that the time limit for making a claim to an employment tribunal is the same during the coronavirus pandemic, regardless of any decisions to postpone the disciplinary or grievance procedure.

 

If you require specialist legal advice relating to carrying out disciplinary or grievance procedures, please contact Jessica Scott-Dye in VWV'sEmployment Law team on 07799 901428 or on jscott-dye@vwv.co.uk.