The Acas code of practice on disciplinary and grievance procedures was introduced in 2009, replacing the ill-fated statutory 3-step procedures for dispute resolution in the workplace. The Code introduced a principles-based good practice approach to handling workplace disciplinary and grievance situations.
In response to the Coronavirus situation, Acas has now published guidance on the application of the Code whilst the current disruption is ongoing. It provides that employers must consider whether it is fair or reasonable to carry out disciplinary or grievance procedures whilst employees are on furlough, working from home or social distancing at work.
Other key points from the guidance are as follows:
- Employers should give careful consideration to the health and wellbeing of employees when deciding whether and how to proceed at this time.
- Employers are encouraged to talk through the options with everyone involved before making a decision on whether or not to proceed.
- Whether the employer decides to go ahead with the procedure or postpone it, they should explain their decision to those involved.
- Employees can still raise a grievance, but the employer should consider whether the complaint can be handled fairly at the present time.
- Despite not being allowed to undertake any work for the employer, employees on furlough can still take part in investigation meetings or hearings where they:
– are under investigation / are being disciplined;
– have raised a grievance;
– are chairing a meeting / hearing;
– are taking notes at a meeting / hearing;
– are being interviewed as a potential witness; or
– are acting as an accompanying person at a hearing.
- However, furloughed employees should agree to undertaking any of the above actions voluntarily and meetings / hearings should only occur in accordance with public health guidance.
- Where other employees (e.g. key workers) are still attending the workplace, face-to-face meetings / hearings should be held in a place that allows for privacy and appropriate social distancing.
- Where the employees involved are furloughed or working from home, the employer should take account of the circumstances of the case in considering whether the matter is urgent and should therefore be progressed at this time, or whether it could be deferred to a later date.
- If the decision is made to progress the matter via video calls, the employer should:
– ensure that everyone involved has access to the required technology;
– ensure that everyone involved can access and question the evidence;
– be mindful of the need to make reasonable adjustments as necessary e.g. consider the complexity of such technology and the advance provision of step-by-step instructions in order to reduce the scope for indirect discrimination claims); and
– comply with data protection legislation where recordings take place.
Whilst failure to comply with the Acas Code of Practice (and by extension, the related guidance) does not, in itself, render an employer liable to Employment Tribunal proceedings, tribunals do take the extent of compliance into account when considering relevant cases. Indeed, an unreasonable failure to comply on the employer’s part can result in an uplift of up to 25% in any compensation awarded.
Therefore, it would be advisable to seek professional advice on if / how disciplinary and grievance matters should be progressed at this time. Our consultants are available to provide support and guidance on this and any other HR / Employment Law matter and can be contacted on 01942 727200 or at email@example.com.