The use of facilities such as Zoom and Teams has become the norm in the last 12 months and as many of us continue work from home, as instructed by the government, we find there is a requirement to conduct meetings online and by telephone.
However, we must carefully consider the appropriateness of doing so, considering the risk of making parties involved wait until ‘business as usual’ resumes which would likely result in delays and could result in tribunal claims. One of these areas is the disciplinary process. We need to decide if the process can and should be conducted remotely and discuss key factors to be considered before action is taken.
The ACAS code of practice still needs to be followed during lockdown. Disciplinary meetings can still go ahead as long as covid safe measures and social distancing rules are adhered to, and the employee has access to the necessary technology. We must however consider if the action is ethical and does the employee have access to support when working remotely.
The case of Khanum v Mid Glamorgan Area Health Authority EAT 1979, still referred to today, established that all three basic requirements of natural justice be fulfilled within a disciplinary hearing:
a. that the person should know the nature of the accusation against him or her;
b. that they should be given an opportunity to state their case; and
c. that the panel should act in good faith.
Conducting a hearing remotely should be able to satisfy these requirements. Employers will, however, need to consider whether a full and fair investigation into the issues can still be carried out whilst working under lockdown constraints. If it is not going to be possible to get hold of important records or documentation because of the workplace being closed, or it is not possible to interview key witnesses because of practical difficulties.
Consider these questions before taking action:
- Who will be responsible for the investigation, disciplinary and appeal process?
- How will any remote investigations take place (are witnesses available)?
- How will the evidence and documents be provided to the employee in advance of the meeting?
- How will the employee’s representative take part in the meeting?
It is also important to agree with the employee any changes or variations to contractual disciplinary procedures to limit the risk of a breach of contract claim.
Employees rights to consider
If your policy states a face-to-face meeting will take place, then you will need to get approval from the employee to proceed. Check your policy for specifics noted regarding process.
Your employee needs to have access to and to be comfortable with the technology required to conduct the meeting. You must also be mindful of data security and privacy, making sure anyone accompanying the employee is also able to join the meeting, and ensure you use a secure platform where you can see who else is there. Be clear in advance about whether the call is being recorded and give a clear indication on whether the individual should or shouldn’t record the meeting. Employees should be instructed that the meeting is confidential and should be conducted as a work meeting with the relevant level of professionalism. Make sure they have they time to conduct the meeting if they are also supporting care of others in their household or home schooling. You might need to delay the meeting to support the employee in this regard.
Furloughed staff can still be called to formal disciplinary meetings as they can take part in work where the activity is not revenue generating. ACAS guidelines confirm that employees on furlough can attend a disciplinary meeting, take notes, be interviewed as part of an investigation, and be a witness or an employee’s companion, if this is done voluntarily. That said it may be safer to return them from furlough before any action is taken. The same principle applies to employee representatives and witnesses. A manager who has been furloughed could not conduct the meeting though so be mindful who is going to be involved in investigations, disciplinary hearings and any appeals as employees might need to be redesignated as employees i.e. brought back from furlough to support the process. If it is decided that a disciplinary hearing will be deferred, then the employee should be notified of this before they are furloughed.
Pros and Cons of the virtual process
Employers need to consider whether a full and fair investigation into the issues can still be carried out whilst working under lockdown constraints. If it is not going to be possible to get hold of important records or documentation because of the workplace being closed, or it is not possible to interview key witnesses because of practical difficulties, it will be more appropriate to delay the outcome of the process until such time as this evidence can be obtained. This will need to be determined on a case by case basis. The same processes and principles apply to a remote meeting as a face to face meeting.
One benefit of conducting the meeting virtually is that there is a reduction in travel which not only benefits the environment and expense costs but also means that representatives could be available and therefore reduce delays. We also need to consider what to do if the employee’s workplace representative is unable or unwilling to attend due to the Coronavirus and the employee insists on this companion?
The Employment Rights Act 1996 provides that, if the worker requests a postponement of the hearing to accommodate their chosen companion, the employer is obliged to agree to that request provided the worker proposes an alternative time and date for the hearing that is reasonable and is within the five working days (i.e. not including weekends, bank holidays, Christmas Day or Good Friday) after the day originally proposed. However, employers should be careful about refusing proposed alternative dates that are within a reasonable period. An employer’s refusal to postpone a disciplinary hearing for a reasonable period, even if beyond those five working days, may amount to procedural unfairness and render a subsequent dismissal to be unfair for the purposes of a claim for unfair dismissal.
If an employee is upset after the meeting they don’t have to go back into the office and face colleagues either. The flip side to this though is that an employee could feel isolated so consider what remote support can be offered to your employees including your people leaders who are conducting the meetings.
We also need to be mindful that Managers may not be confident in virtual delivery and delivering tough messages during these difficult times can have a severe impact on mental health and resilience. Both parties may need to allocate more time before and after meetings to be prepared, seek advice and consider next steps
When arranging disciplinary meeting always look to be fair and reasonable. Consider if it is necessary to incorporate frequent rest breaks into the meeting, do you need to allow additional time for the employee to prepare for and present their case. Would it be appropriate to allow the employee to choose a companion from outside the usual categories, for example a family member or friend?
If you have any further questions or concerns, please do not hesitate to contact the Alcumus PSM HR team for assistance on 01484 439 930 or email [email protected].
Written by Melanie Darlington, Senior HR Consultant