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June 19, 2020

The human resources landscape in 2020 is different from what anyone could have predicted.

However, while many aspects of operations have changed, others have remained the same, and one area that isn’t showing any signs of shifting is the vital need for businesses to have strong grievance policies in place.

Of course, the COVID-19 outbreak has introduced a number of new challenges for businesses and HR teams.

For example, some employees may not be well enough to take part in a grievance or disciplinary hearing at this time. Others may be away from the office, working remotely or placed on furlough under the Government scheme.

Not forgetting that business owners, or HR departments themselves may be struggling to continue with standard duties while simultaneously trying to implement COVID-secure return-to-work strategies.

However, these challenges don’t necessarily mean that grievance and disciplinary hearings can’t go ahead during the pandemic.

Even under these exceptional circumstances, employees retain the right to raise a grievance, which means that now is the time for employers to take the necessary measures to manage ongoing disciplinary issues in a way that is safe, secure, and considerate of employee needs.

You can… But should you?

Grievance and disciplinary hearings can go ahead during the pandemic… but is that the best solution?

There is no right or wrong answer here. It depends on the individual circumstances surrounding the case.

According to insights firm McKinsey, one-quarter of the UK workforce was noted as being furloughed, absent due to sickness, or self-isolating during the first half of April 2020.

Under these circumstances, where employees are not currently performing their duties as usual, employers may wish to delay proceedings until the situation has normalised and a comprehensive and, most importantly, fair investigation can be launched.

The majority of the workforce, however, are working remotely.

A recent survey found that around two-thirds of UK workers have been working from home during the pandemic, and under these circumstances, employers may wish to go ahead with meetings.

In fact, depending on the business’ policies, it may even be necessary to go ahead. If you haven’t already done so, now is the time to check internal policies for timings clauses.

Some businesses may be required to investigate within a set number of days from notification, with failure to do so forming cause to appeal.

Fortunately, the rise in video conferencing technologies means that they can go ahead if necessary.

There are some situations, however, where it may be better for businesses to delay:

  • Policy clauses: If policies state that investigations and hearings must take place in a face-to-face manner, video conferencing is not an automatic alternative. Employers will need to ensure that they have written approval from the individuals in question to hold a meeting in this way.
  • Minor grievances: For minor issues that are not considered to be time-sensitive, delaying proceedings until the business has returned to a state of relative normalcy can help to reduce the burden on HR departments and minimise stress and anxiety for employees at this time.
  • Physical documentation: In cases that rely heavily upon the presentation of physical witness statements, or on documentation that may only be accessible from currently closed offices, it may be safer to defer hearings until these documents can be securely retrieved and presented.
  • Reasonable objections: The Coronavirus pandemic is a very unprecedented situation that has affected everyone. Individual family circumstances and personal stresses must be taken into consideration, and employees do have the right to make reasonable objections to schedules.
  • Limitations: Although the adoption of communications technologies is on the rise, not all job roles include the need for video hardware or software. In cases where technology is not available, or cannot be accessed due to disability, it may be necessary to defer meetings until a later date.

The right to a companion

Regardless of whether you hold a grievance or disciplinary meeting in person or remotely using video conferencing technologies, employees retain the right to a companion or representative.

Of course, under Government-imposed social distancing regulations, this can be very challenging at this time.

Under standard legislation, employers must provide employees with an opportunity to suggest an alternative date for a hearing within 5 days of the originally scheduled date should their chosen companion be unable to attend.

However, it is at the employer's discretion to allow an extended delay under exceptional circumstances, and this may be something that businesses will want to consider.

Important factors to take into account

If you do decide to go ahead and conduct grievance or disciplinary hearings during the pandemic, I have provided some tips below:

  • Ensure employees are aware of the formality of the situation, as this is something that can become lost while working in informal home environments. Grievance and disciplinary hearings are highly sensitive operations and should be treated as such, no matter where they’re held.
  • Although a face-to-face meeting wouldn’t normally be recorded, video technologies make it easy to create an instant copy of the event. While this may be beneficial, employers must be confident that they are recording meetings in compliance with current data protection laws.
  • It doesn’t matter where a disciplinary or grievance meeting is being held; every employee has the right to appeal a decision. Even under these unusual circumstances, it is vital that employers act fairly and within the law, following the same appeals process that is normally adhered to.
  • Out of sight, out of mind is a very real concern right now. Even though employees may be working from home, employers cannot overlook the importance of completing the grievance and disciplinary process by following up with a formal letter laying out a plan of action.

Navigating the new normal

Unfortunately, trying to juggle the challenges of the ‘new normal’ with existing HR operations can increase the risk of vital procedures being overlooked, which can make unfair dismissals a very real concern at this time.

We'er here to help.

For advice and guidance regarding carrying out grievance or disciplinary hearings during the pandemic, get in touch with the team on 01244 893776.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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