The Advisory, Conciliation, and Arbitration Service (ACAS) in the UK has provided specific guidance on conducting disciplinary and grievance procedures during the COVID-19 pandemic. We have summarized the salient points below and the full guidance can be found here.
While an employee can still raise a grievance while social distancing, working from home, or on furlough, the employer must consider if they can carry out a fair grievance procedure in the COVID climate.
Going through a disciplinary or grievance procedure can be stressful in normal times, however, it’s important to keep in mind that employees might be facing other stressful circumstances as a result of the pandemic. Employers should consider the health and wellbeing of employees when deciding whether and how to proceed at this time.
It can be helpful for the employer to talk through the options with everyone involved before deciding whether or not to proceed with a disciplinary procedure.
Whether the employer decides to go ahead with the procedure or postpone it, they should explain their decision with those involved. This will help everyone to be clear about what has been agreed on and why.
Going ahead with a procedure during the pandemic might mean having to use video meetings for any investigation interviews and hearings. It’s not normal practice to video record investigation interviews or hearings and virtual meetings should be treated no differently. Some virtual meeting platforms record meetings by default and special care should be taken in this regard, given that video recording the meeting may simply heighten the employee’s anxiety in an already stressful COVID-19 situation.
The right to be accompanied at a disciplinary or grievance hearing still applies and the hearing must be set up to allow the employee’s chosen companion to:
- Put forward and sum up the employee’s case
- Respond on behalf of the employee to anything said
- Talk privately with the employee at any point
On the last point, employers will have to give careful consideration to how they can ensure that the employee and their companion are able to speak privately at any point, given that they are unlikely to be in the same room during any virtual meeting. Thought should be given to allowing regular breaks and ensuring that the employee and their companion have alternate means of communication, for example, by mobile phone. Ensuring that both are comfortable with the platform being used (e.g. how to mute/unmute, video/stop videoing) will also go a long way to fulfilling the employer’s obligations and reducing the employee’s anxiety.
If you would like help with any of the above, please email Rooney Nimmo Partner Dawn Robertson, or call 0131 220 9579.
This Article Is One Of A Series Intended To De-Mystify Common Legal Issues For The Non-Lawyer And Entrepreneur Audience – They Are Designed To Foster Discussion And Is By No Means Exhaustive. These Materials Are For Informational Purposes Only. Nothing Herein Is Intended Nor Should Be Regarded As Legal Advice. The Distribution Of This Article To Any Person Does Not Establish An Attorney-Client Relationship With Our Firm. Rooney Nimmo Assumes No Liability In Connection With The Use Of This Publication. This Bulletin Is Considered Attorney Advertising Under The Applicable Rules Of New York State. Rooney Nimmo UK Is Regulated By The Law Society Of Scotland And Rooney Nimmo US By The New York Rules Of Professional Conduct. All Attorneys And Solicitors Listed In This Firm Stipulate Their Jurisdictional Limitations. Rooney Nimmo In The USA Is A Law Firm Registered As A New York State Professional Corporation.