Guidance Notes For Disciplinary & Grievance Procedures During The COVID-19 Pandemic
In line with the ACAS Code of Practice, disciplinary and grievance procedures must always be fair and reasonable. Despite the increased challenges faced by employers, these rules are still applicable during the COVID-19 pandemic. This is especially important if the hearing results in dismissal, or if a case reaches an employment tribunal, as judges will always look to see if the employer has followed the ACAS Code of Practice.
To help employers, HR:4UK have created a new set of guidance notes to safely deal with disciplinary and grievance procedures during the COVID-19 pandemic. The notes will help employers address these COVID-19 challenges, explain how best to proceed under these circumstances and the considerations that now need to be made. To demonstrate this further, a few guidance examples have been given below:
- Even without the challenges of COVID-19 disciplinary and grievance procedures can be stressful. To protect the health and well-being of employees, it is important to consider the individual circumstances and sensitivity of each case when deciding how to proceed.
- To fairly consider individual needs it may be advisable to consult with all those involved in the procedure, considering all the options available before making an informed decision.
- If holding face-to-face meetings the appropriate social distancing measures and public health guidelines need to be followed.
- If it is felt unsafe to hold a face-to-face meeting or objections have been raised, consider holding the meeting remotely using one of the many video conferencing solutions available.
- Employers should keep a record of the minutes of any disciplinary or grievances. If these meetings are held remotely an agreement can be made to digitally record the meeting, which must be kept in line with data protection law.
- Depending on the severity or urgency of the case in question, it might be appropriate to consider deferring the procedure until a later date.
- Delaying a procedure could potentially make matters worse, possibly leading to an employment tribunal claim being made that could otherwise have been avoided. So it is vital to consider the potential impact of such a decision.
- Employers should regularly review any decision to suspend a procedure in consultation with all those involved.
- The procedure should be taken forward as soon as this can be arranged in a safe, fair and reasonable way.
- The right for an employee to be accompanied at a disciplinary or grievance hearing still applies and the chosen companion must be able to attend the hearing and fully participate in the proceedings with the option to confer privately together at any point.
- If the employee's chosen companion is unable to attend a hearing, the right to be accompanied allows the employee to suggest another reasonable time and date within 5 working days of the original hearing date. If the companion's unavailability extends beyond 5 working days, then the employer needs to consider if this is reasonable. This is especially important if the hearing might result in dismissal as the employer must always act fairly to avoid an unfair dismissal.
- The employer should clearly communicate any decisions made, the reasons why and how to proceed with all those involved.
- If the employer decides to continue or start a procedure, they must follow the laid down procedure. This is extremely important as if a disciplinary or grievance case reaches an employment tribunal, judges will look at whether the employer has followed the ACAS Code of Practice in a fair and reasonable way.
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