Following the enforced period of homeworking under lockdown, increasing numbers of employers are now considering the benefits of allowing remote working on a longer term, and even permanent, basis.
With this development comes specific workforce management issues, such as whether disciplinary and grievance hearings can and should be conducted remotely.
For employers, it is a matter of ensuring any HR hearing is both fair to the employee and reduces the risk of legal action.
Regardless of how the hearing is conducted, the ACAS Code of Practice for disciplinary and grievance procedures continues to apply. The Code stresses the requirement for employers of all sizes and resources to act fairly and observe the standards of reasonable behaviour it sets out.
But conducting a hearing online will demand a full consideration of the practicalities and potential limitations compared with the alternatives, which could, depending on the circumstances, include postponing the hearing or requiring all parties to physically attend a meeting.
There are several important issues to consider where employers are faced with a workforce issue requiring a disciplinary or grievance hearing that may need to take place remotely.
Official health guidance
Against the backdrop of the pandemic, employee welfare and public health remain a priority. This includes when making decisions as to how disciplinary and grievance procedures should be carried out.
When considering your options, you should take the latest health guidance into account. Government and HSE guidance on workplace health and safety, including social distancing and heightened hygiene practices, should be observed at all times if employees are present in the workplace.
In addition, the employer owes its employees a duty under health and safety legislation to take reasonable care of their physical and mental health. This includes a requirement on the employer not to cause undue stress. At a time when many people’s mental state is being severely tested, as an employer you should approach workplace issues with even more caution and sensitivity than usual.
Clarify the employee’s status
Under the current circumstances, employees are likely to be categorised as one of the following: those who are on furlough, those who are working from home, and those who are physically present in a workplace. This is an important distinction to make when considering how to manage a grievance or disciplinary matter.
Dealing with the latter category first, as these employees are physically present (providing that all other relevant members of staff are also present) disciplinary and grievance procedures can proceed in the normal way. Of course, social distancing an other COVID-19 workplace measures will have to be observed. It could be the case that the employee’s representatives, or witnesses, do not wish to enter the workplace or are working from home. In that case, you may well have to have to invite some people to attend the meeting remotely.
Where an employee is on furlough, under the rules of the scheme they are not allowed to undertake work for their employer. Although work is defined as ‘making money’ for the organisation, or providing services to it, there is some doubt as to whether an employee on furlough is allowed to attend a disciplinary or grievance hearing. However, the ACAS guidance is quite clear: employees can take part in a disciplinary or grievance investigation or hearing, but only where they are doing so voluntarily. ACAS has produced a list of meeting-types to which it considers it would be acceptable to ask furloughed employees to attend, subject always to it being made clear that attendance is voluntary. The scenarios are:
- where the employee is under investigation in a disciplinary procedure;
- if they have raised a grievance;
- if they are chairing a disciplinary or grievance hearing;
- if they have been asked to take notes at an investigatory interview or hearing;
- if they are a witness at a hearing or are being interviewed as part of an investigation; or
- if they are accompanying another employee to a hearing.
If you are not able to proceed with a grievance process started before lockdown by an employee who is now furloughed, you must write to that employee to explain why you are not able to proceed. If there are any actions you can take to mitigate their situation on their return to work, but before the grievance has been heard, then you should do so.
Where an employee is working from home, employers may face the dilemma as to how best to conduct the hearing.
If a disciplinary or grievance procedure has already begun then leaving it hanging could have a detrimental effect on the relationship between you and your employee. It could also breach the duty of trust and confidence that employers and employees owe to each other. The employer’s duty is to deal with issues promptly and this would not be the case.
Furthermore, a delay can allow a relatively minor incident to develop into something more damaging. You should bear in mind that an employer’s failure to deal promptly with a matter in line with the ACAS Code may lead to an uplift of up to 25% in any resulting Employment Tribunal award.
Employees are potentially already stressed and may feel that their life is in flux or volatile. If you fail to deal with a complaint that feeling will be exacerbated. In addition, it could be a breach of contract.
Some of these points in favour of proceeding however could easily be flipped into reasons to postpone.
For example, some employees may find the stress of proceeding with a disciplinary or grievance hearing remotely, outweighs the benefit of getting it done. In that case you should listen to the concerns of your employee and take those into account when making your decision. If you decide not to proceed then you should explain this to the employee with reasons in writing.
It is not recommended to proceed with a grievance hearing without the consent of the employee, unless there are overriding reasons to do so.
Conversely, there may be some instances of disciplinary action that cannot be delayed, for example where you have clear evidence of employee misconduct while they are working from home.
You should also bear in mind that an employee may simply be unable to attend a hearing in normal daytime office hours if they have childcare responsibilities and work for you in the evenings. An employee may also be on furlough to enable them to fulfil caring obligations, in which case attendance at remote hearings, even if they wanted to, might be very difficult.
Finally, there may be cases that are simply too complex or sensitive to be dealt with remotely. Video meetings do not always have the highest quality sound or picture. You will need to make a judgment as to whether all the parties involved will be able to assess and examine the evidence presented by witnesses and others on the video call.
Practical concerns for HR
Your duty to make reasonable adjustments to accommodate the needs of a person with a disability still applies to a remote hearing. It is possible that the appropriate reasonable adjustments simply cannot be made on a video conference. In such a case the hearing will have to be postponed.
If you do decide to go ahead with a remote hearing, you must make sure that this is done by video conferencing. It is generally not advisable to proceed by audio only. This is because it is important for all the parties to see who is present, and also, to allow for participants to pick up on body language and emotional responses as part of what can often be difficult exchanges.
Whatever technology provider you organisation uses, you should make sure it is accessible to all the parties to the call in advance. Some courts and other organisations hold test meetings the day before, simply to iron out any technological hitches. This is sensible, particularly where attendees at the meeting are nervous and apprehensive.
As in normal situations, you must make sure that relevant documents are circulated to all parties in good time and via a secure method. If documents are to be sent by post, make sure you check with the employee and other parties where the documents should be sent, as it may not be their normal home address. You should also consider how documents will be accessed during the meeting. For example, some video conference programs include the facility to view documents collectively during the meeting.
It will be especially important to include a note-taker for a remote hearing, as it is easy to miss things on a video conference call, for example due to a temporary blip in the internet connection.
Alternatively, the remote hearing could of course be recorded. However, you must approach this with caution. If the hearing were to be held as normal in your workplace you should consult your own procedures to see whether they would allow it to be recorded, by either the employer or employee. If it would not, then there needs to be a particular reason why the remote hearing is recorded, and you need to seek your employee’s agreement to such a variation to the disciplinary and grievance procedures.
In addition, it is imperative that in advance you seek each attendee’s permission to record the meeting, and ask them to re-affirm their permission at the start of the video. If you wait until the beginning of the meeting to seek permission the employee may feel pressured to agree and then regret this later and make a complaint.
If you are worried that your employee will make a covert recording of the hearing then you should explain in advance that this is not allowed. If your disciplinary and grievance procedures already disallow covert recordings then you can refer your employee to the relevant provision in the document.
Finally, in making and storing the recording you must make sure that you comply with relevant data protection legislation. Your organisation should already have procedures in place to support this, but be careful where you are storing things if you are working from home.
Impact of remote hearing on the right to be accompanied
As with disciplinary and grievance hearings conducted in person at the workplace, employees have a statutory right to be accompanied to these meetings by a colleague or trade union representative. There is no reason why representatives cannot attend a remote disciplinary or grievance hearing. However, there are some additional considerations:
- whichever technology provider you choose, the representative must be able to put and sum up the employee’s case, confer privately with the employee and respond on behalf of the employee to any views expressed at the meeting. It may be simplest to allow the employee and their representative simply to leave the meeting to confer, but they should have a link or similar in order that they can rejoin the meeting quickly and easily; and
- some employers allow representatives or companions to attend investigatory meetings too, although they do not have to do this. You should consider whether to allow the employee to be accompanied to a remote investigatory meeting in order to try to avoid any complaint later of procedural unfairness.
You should bear in mind that the employee’s trade union representative or companion might be less available whilst the coronavirus continues to cause disruption to people’s lives. In normal times, under the ACAS Code of Practice, you must accommodate your employee’s request to postpone a meeting in order that their representative may attend. This applies as long as the proposed new date is reasonable and within five working days of the original date. However, ACAS has updated its guidance again and strongly suggests that you adopt a flexible approach to requests to postpone a hearing where the representative suggests a reasonable alternative date.
Remote HR hearings FAQs
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.
