At present we do not know how long the current “stay at home” instruction will last. However, the longer the current situation remains, the more likely it is that employers will have to adapt normal working practices and workplace procedures to embrace a more virtual approach.
One of these areas that is raising some questions for the clients that we support concerns the disciplinary process. Questions that are being asked include whether the process can and should be conducted remotely and about the availability of key individuals within that process.
How to Conduct a Disciplinary Hearing Remotely?
There is no reason why a disciplinary or grievance process needs to be put on hold just because employees are 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:
(1) that the person should know the nature of the accusation against him or her;
(2) that they should be given an opportunity to state their case; and
(3) 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, it may be fairer 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.
Disciplinary Questions You Need To Consider
If it is both reasonable and practicable to proceed with the process remotely, employers will need to consider the following:
- How will any remote investigation meetings or hearings take place?
A secure platform should be used to ensure confidentiality is maintained, and it should be a platform which all relevant parties have access to. A video conferencing platform, rather than simply audio is preferable.
- What documents should be provided?
The same principles apply to a remote hearing/meeting as to one carried out in person. To ensure that the process is robust and fair, all parties should be supplied with the relevant evidence and documentation in good time prior to the meeting taking place. Documents should be sent electronically via a secure method.
- How will the employee’s companion take part in the meetings?
It will be helpful for the individual conducting the meeting or hearing to lay down a structure for how the meeting will progress at the start, and to give clear guidance as to how the employee can confer privately with their companion during the meeting if they want to.
- Does this increase the risk of covert recordings being taken?
Although this may depend on the platform which is being used, it is likely to be much easier for an employee to covertly record a meeting which is held remotely, than it would be normally.
If the employer’s disciplinary and grievance policies make it clear that recording is not permitted and will be treated as misconduct, this should reduce the risk of an employee taking this step.
Alternatively, the employer could just take control and decide to record the meeting itself. It will of course be necessary to notify the employee of this intention beforehand, to give them the opportunity to object, and get them to confirm again at the start of the meeting that they consent to it being recorded.
If the meeting or hearing is not being recorded, a full and accurate note of the discussions should be taken by the employer in the same way as it would during an in person hearing or meeting.
Disciplinary Meeting Tips
Taking into account the Availability of Key Individuals Within the Process is important. At the moment it remains unclear whether disciplinaries would need to be paused if the employee subject to the process, or a key witness or player in the process, is furloughed. The government guidance is clear that furloughed employees are not permitted to carry out any “work” for their employer. The guidance defines work as “making money for your organisation” or “providing services for your organisation”
Therefore, that could suggest:
Managers: Line managers and HR managers who are on furlough leave would be unable to supervise a disciplinary a process. This would amount to working or providing a service to the employer. Only those employees who are not on furlough should run the process.
Employees who are the subject of the proceedings: Employees who are being disciplined can probably participate in their own hearing even if they are also furloughed. Although guidance is awaited it seems unlikely that participating in one’s own disciplinary process is providing services to the employer.
Witnesses: Problems arise if evidence is needed from furloughed employees. In the absence of any specific guidance, staff who are witnesses in proceedings involving a colleague could be providing services to the employer in breach of the furlough restrictions. To avoid this risk employers may prefer to place the proceedings on hold until any furlough period has ended or take the witness off furlough.
Employee’s companion: Employees are entitled to have a union representative or colleague ‘present’ at a grievance or disciplinary hearing, even if this is an electronic presence in a remote hearing. It is arguable that a union representative is providing services to the employee, or the union, and not to the employer. So, the union representative performing those duties may not amount to them carrying out ‘work’ for the employer during furlough. For other companions who are colleagues are they are providing services to the employer by facilitating the continuance of the process?
Clarification is still needed on these issues.
Either way, communication is key. If it is decided that a disciplinary hearing will be deferred, then the employee should be notified of this before they are furloughed.
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.
If you would like further guidance or support on this matter or require advice on other people management matters please contact Clover HR on 0121 516 0299 or email us at email@example.com
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