The ACAS Code of Practice should be used by employers when dealing disciplinary and grievance procedures as failure to follow this can affect the level of compensation awarded if the matter reaches an Employment Tribunal. With the UK currently in lock down and many employees working from home or on furlough, many employers are concerned how to handle such procedures. In their recent guidance, which can be found here, ACAS has confirmed that during the pandemic, existing employment law and the Code of Practice still applies and we have summarised their guidance below.
- Preliminary considerations
Before starting or continuing any disciplinary or grievance procedures, it will be necessary for employers to consider whether doing so would be fair and reasonable at this time and ACAS outline key consideration for employers to aid this decision. These include the health and wellbeing of the employee at this time, the need to follow requirements on social distancing and whether any procedures can be carried out fairly with employees working from home. It will therefore be necessary for an employer to discuss these considerations with the employee before deciding whether or not to proceed.
ACAS highlight the likely need for virtual meetings if the decision is made to go ahead with a disciplinary or grievance procedure at this time and provide useful factors that should be taken into consideration. It is also emphasised that in most cases, there will be no reason for video meetings to be recorded
- If employees are on furlough or working from home
The guidance expressly states that employees can still make a grievance if they are working from home or on furlough. Employees on furlough can take part in a disciplinary or grievance hearing if they:
- are under investigation in a disciplinary procedure
- raised a grievance
- are chairing a disciplinary or grievance hearing
- are taking notes at a hearing or during an investigation interview
- are being interviewed as part of an investigation
- are a witness at a hearing
- are an employee’s companion for a hearing
It is also confirmed that employees must voluntarily participate and that participation must take place in line with current public health guidance.
Employers should treat ACAS’s confirmation that employees on furlough can undertake the various above roles with caution, in light of the Government’s guidance that employees must not ‘work’ or provide services for their employer whilst on furlough. Although employees are able to volunteer whilst on furlough, this must not be for their employer. There are potential risks associated with an employee on furlough acting as a chair or note taker as this could be viewed as providing a service to their employer, which could impact the ability to obtain reimbursement for their wages under the scheme.
- Going ahead with a disciplinary or grievance procedure
If it has been decided that a disciplinary or grievance procedure can be conducted fairly in the current circumstances, the ACAS Code of Practice should be followed, as in the usual way prior to this pandemic.
One right that ACAS emphasise as still being in place is the right for an employee to be accompanied at a disciplinary or grievance hearing. They advise that the hearing should be set up so as to allow the employees chosen companion to present and sum up the employee’s case, respond on behalf of the employee to anything said and to talk privately with the employee at any point.
Finally, an employee’s right of appeal to the outcome of any procedure still applies and the relevant guidance should be followed. The usual time limits to make a claim to the employment tribunal are also still in place.