Hi, I'm Helen Hughes a legal director in the employment team here at Shakespeare Martineau. Welcome to today's webinar and disciplinarian grievance procedures during covid-19. You'll see a question-and-answer a Q&A icon on your screen. So please do ask questions and we'll share a summary of all those questions and answers with everyone after the webinar.
We've had a number of queries from clients since the lockdown began on 23rd March making inquiries about what they should do as regards continuing existing disciplinarian grievance procedures or commencing new ones and the Practical difficulties associated with that now for everyone at the present time those difficulties are exacerbated by the current working arrangements for many employers and employees whether you've got employees working from Home Shield.
In line with public health England guidance or whether they're on furlough now in early May a cast The Advisory conciliation and arbitration service released new guidance for employers looking to start or continue with such proceedings. Now employers will be reassured to note that advises. You can still carry on with disciplinary procedures regardless of whether employees are working from home or following social distancing in the workplace.
An equally employees can still raise Grievances and expect to have those resolved or progressed AKs also take the view that that can also apply those proceedings can be carried on where an employee is on furlough. Although I would say that I've got some reservations about that view.
I would exercise caution around doing that and I'll come on to explain why shortly The main factor for you to consider as employers is whether you can still carry out a fair and reasonable procedure. You've got to bear in mind that existing employment law and the existing a cascade of practice on disciplinary and grievance procedures continues to apply during the pandemic and remains best practice.
You also need to ensure that you comply with public health guidelines when a Ranging or continuing with the process?
When you thinking about whether it is fair and reasonable to carry on with or start a disciplinary grievance procedure as well as bearing the existing employment or principles the existing a cascade of practice you obviously need to have regard to your own procedures your own internal procedures to make sure that you dovetail those in as well. But you're going to need to look very closely at the stage that the procedure is currently at.
whether it's just about to commence whether you're halfway through whether it's certain appeal stage, for example, and you've got to consider whether it's possible to conclude that process in a fair Manner and one of the most important considerations when thinking about that is whether an investigation needs to be carried out and whether it can be concluded reasonably in all the circumstances if it can't it's likely You won't be able to conclude the process even though you might be able to progress it slightly. It's obviously going to be very sensible to take the view of all those involved as to whether they feel it's reasonable to continue or whether it would be preferable to perspire own decisions that you may have made at the start of lockdown about persuading may need to be Revisited now that we're some eight nine weeks in with no no sign.
Nyet of lockdown being removed entirely. So there's a number of factors that you want to bear in mind before making your decision. So for example, the individual circumstances and sensitivity of the case.
Does it really need to be dealt with urgently or could it be dealt with more fairly when people are able to return to the workplace and I guess part of that will depend on when the issue arose whether it was during knocked down or whether it was some months prior to That if anyone involved has got a reasonable objection to the procedure going ahead at that time. That's something else to take account of and particularly.
If you are looking at doing remote hearings if people are working away from home does everyone involved have access to the technology needed to attend video meetings, for example, any any employees who might need to use zoom for Ample Microsoft teams have they got access to that do they know how to use it as part of that and as you would in any disciplinary or grievance hearing does anyone involved have a disability or an accessibility issue that might affect their ability to use video technology.
And if so, and again as usual consider whether any reasonable adjustments might be needed that now what happens if Any paper evidence or written statements that need to be viewed particularly if a large investigation has occurred and there's considerable amount of documentation will everyone be able to see that clearly on screen and to be able to understand what has been involved. Does there need to be the ability to share screens for example, so that everyone can look at the same thing at the same time.
Also, is it possible to fairly assess and question evidence given by people interviewed in video meeting bear in mind particularly. If you've decided to proceed by way of telephone call only as part of investigative meeting. Does that give you any cause for concern by not being able to see someone as they answer questions? What if there are files or records that are kept in?
Office is it possible to get hold of those for the investigation or the hearing? If not, then that is something that might cause you to consider postponing as is usual employees retain the right to be accompanied during disciplinary and grievance hearings, but it's still possible for this to occur. Can their chosen companion attend with them.
Now obviously we all were very used to the fact that a chosen companion is the fellow employee or a trade Union official but obviously they've got to be able to attend and participate in the in the hearing to if a declare delay is requested facilitator companions attendance. You need to think about whether a delay of more than five days is reasonable. That's the normal time frame that will work too.
But in these circumstances is a delay of Within five days reasonable if the companions availability is more limited than usual.
In terms of the Practical difficulties that cannot be faced from for it's all working from home these days you need to be alert to whether the employee has got somewhere quiet and private where they can participate in the meeting. You also need to think about whether there might be any specific issues that could give rise to problems.
So for example, have they got child care or other commitments that might impact upon the timing of those me Things do they need to be adjusted to be flexible around that one practical issue that often arises during a hearing is the fact that often the employee may wish to confer with their companion. How can that be facilitated when everyone is on a video call for example, is that the ability and can you make clear that they can drop off the call if need be to?
Refer to have a short adjournment. Now if there are any particular concerns around attendance or participation, you probably need to think about some of the similar principles that you bear in mind when employees on sick leave.
So if you're going to hold a hearing via remote video conferencing or because I said you need to think about their ability to access the required technology and if they have a disability t or an accessibility issue think about those reasonable adjustments Now video meeting shouldn't generally be recorded if they are everyone needs to be aware that that will be the case and the usual data protection considerations would apply to now this guidance that I'm talking about here these practical considerations that applies equally to appeal hearings as well and should make the point that the normal time limits for making claims to employment tribunals also applies irrespective of any decision to spurn a disciplinary or grievance procedure or an appeal hearing so you may find that an employee is forced to make a claim to a tribunal just to comply with those very strict time limits, even though the internal procedures haven't quite yet been exhausted.
Now I said that we would need to discuss Employees on furlough and that's a very real situation for many employers. Now, the egg has guidance does say that a furloughed employee can take part as either the subject of the proceeding.
So if they raise a grievance themselves or they're under investigation in a disciplinary procedure if they are the chairperson or note taker or as an interviewee or witness or as as a companion now, the guidance states that the participation must be voluntary so that an individual is doing it out of their own choice and that that participation takes place in accordance with Current public health England guidance. Now the problem that I've got with that is that there appears to be quite a conflict between the hmrc guidance and the treasure is Direction, which established the furlough scheme.
Now those those documents and repeated guidance made it very clear that the main condition for accessing the coronavirus job retention scheme is that furloughed employees cease all work in relation to their employment during furlough. They cannot provide services to the employees. They cannot work at all. Now I view is the acting in one of those ways. So either taking part as the subject of the proceedings or being away.
Witness or a companion could very well amount to work for the purposes of the treasury Direction and The hmrc Guidance. It's Common Sense really seem to us that where employees are requested participate in a disciplinary or grievance investigation or hearing they're doing so as part of their role and it's difficult to see how they couldn't be providing a service by performing those duties.
Now if the fact that the a cask Agent says the participation must be voluntary. I don't think affects matters either because even if they're happy to do it without additional remuneration in my view, it's still amounts to work and providing services and the risk, of course for you is that if you try to implement or continue with procedures whilst employees are on furlough, then there is the risk that you would be unable to claim for the reimburse reimbursement of wages under the job retention scheme.
Mmmmmm. So if you are considering dealing with employees who are presently on furlough, then I think you need to exercise caution. There may be practical ways around this such as bringing them off furlough after their minimum three week period to deal with the disciplinary matter or the grievance matter before then putting them back on third.
I was as rotating on and off their low is is appropriate but as All these things. It depends on the particular circumstances and it might be worth taking some advice to Think Through the implications of dealing with employees who are are on furlough themselves. So in summary, therefore don't be afraid to continue with processes that have already started or that need to start even though we're in such strange times, but just be cautious if an employee is on furlough exercise a little more caution.
Generally and think about some of the practicalities to ensure that no one is disadvantaged or that the process has become unfair or unreasonable that brings us to the end of this webinar. I hope that you found it useful and relevant in the current circumstances. If there was something you would like further information on or have a specific query you would like to discuss. Please do let me know and I'll be happy to help finally just to make you aware.
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