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  • Coronavirus Lockdown: How can HR manage ongoing disciplinary issues?

May 26, 2020

The coronavirus pandemic has presented a multitude of challenges for HR teams.

The impact of lockdown restrictions on movement, and social distancing requirements, are compounded by an open-ended timeline and constantly changing situation.

This requires employers to take a fresh and revised approach to disciplinary, grievance and performance issues.

So how can HR professionals continue to manage disciplinary issues effectively during the ongoing COVID-19 crisis?

The lockdown landscape

As the UK, and indeed the world, moves through the coronavirus epidemic it is clear that lockdown measures may ease at times but may also tighten again depending on infection rates and pressures on health services.

It is certainly clear that social distancing measures are here to stay for some time.

That presents a challenge to the normal disciplinary and grievance processes as well as those addressing performance issues for staff who may well be working from home, remotely or on altered hours.

The normal procedure is to convene a meeting attended by the employee, their chosen nominee or representative, along with the relevant management personnel, where relevant and appropriate.

One feature of the current and ongoing situation has been just how quickly things have changed and how rapidly the former “normal” has almost become a distant memory.

Much is said about the “new normal”.

But in the new normal, of course, employee relations issues will still arise.

It is unclear as to when meetings to address them will be able to begin again as a matter of routine.

The impact of COVID-19 on HR and wider resources

As the impact of the virus continues, workplaces will continue to face resource issues.

Infection rates may rise and then decline for periods and be reflected in the number of staff off sick at any time.

The omnipresent threat of second and subsequent waves of coronavirus outbreaks make planning for the impact of this incredibly difficult.

Not only will staff be absent from work having contracted COVID-19, but they will also be required to self-isolate for periods.

And we should not discount the impact that the current situation will have on mental health and how this will affect attendance and indeed performance at work.

That has three distinct impacts on resources.

The employee-facing grievance, disciplinary or performance issues may be unwell themselves and be potentially unfit to partake in processes for periods.

HR departments may find themselves short on staff able to proceed with fact finding, investigations, meetings, hearings and appeals.

And there may be a knock-on to the wider workforce as “healthy” staff are required to take on the work of colleagues either suspended or indeed absent from work.

This may make it more difficult to access managers, colleagues of the person in question and employee representatives including counselling staff, occupational health departments and trade union reps.

Assessing priority in employee relations matters in the coronavirus world

It would be entirely prudent at this time for HR departments to implement a triage system.

That equally applies to all human resources matters but can particularly be applied to grievance, disciplinary and performance cases.

For example, for someone at the early stages of any process, it may be difficult to see how this could proceed given the current restrictions.

It may even be the case that matters relating to an individual in such circumstances need to be put on hold.

If it is a performance matter, the essence is always, in the first instance, to give the employee opportunity to improve.

Working from home, for example, is less than ideal circumstance for many and may not afford the individual the chance to do so.

Even if the staff member is still attending the workplace it will present a challenge to implement support and supervision mechanisms given the need to maintain rules around social distancing.

As measures ease, the process may then be able to continue before needing to be put on hold once more as situations change.

That is likely to be the reality in many situations and flexibility must be observed to ensure fairness and not exposing the organisation and the individual to risk.

If less serious disciplinary issues can indeed be left for the minute, then the HR professional can still weigh up the possibility of proceeding.

If the employee is likely to face no more than a verbal or written warning and continue their employment then there may be little to gain by proceeding for now if there are more pressing matters to attend to.

At the other end of the triaged approach, if gross misconduct is alleged then delaying action until the unforecastable “return to normal” arrives may place the organisation at risk.

Continuing payment to such an individual who may rightly be dismissed also presents an issue for employers.

The overriding obligation here is that the employer must act reasonably. Not many of us will have - or foreseen the need for - procedures for holding disciplinary hearings remotely or online.

However, we should look beyond the “normal” application of a procedure in these “abnormal” times.

A fair disciplinary process - as defined by organisational policy and procedure - aims to do three things.

It must ensure that the employee understands the accusations levelled at them, and it must ensure that they have a reasonable opportunity to provide a response which is then considered with a fair and open mind.

Holding a hearing online can achieve these principles.

What is important, is that the employee must be able to concentrate on the meeting rather than the mechanics of “attending” it.

Some people are more tech-savvy than others so a rehearsal of sorts may well help them take part.

A representative or companion can still take part in the online process as in they can still perform their function.

Again, a little more thought as to how this can be effectively implemented may be needed and ample opportunity should be afforded for the employee and the person making representations on their behalf to confer before the hearing and during it.

A “conference call” made by telephone could also be considered but extra care must be taken to ensure the employee is following what is said.

This may require frequent pauses and clarification questions to ensure they have understood the discussion.

Considering the results of employee processes during the pandemic

The results of any hearing may mean an employee is dismissed.

This almost always has significant implications for any individual, at any time, but perhaps even more so in the challenging economic environment which is developing and which is only forecast to worsen.

A finding of gross misconduct most often leads to dismissal.

Some have questioned whether it may be an option to put an employee with a dismissal pending on to the government’s furlough scheme.

Treasury guidance appears to be conclusive stating that for an employee to be considered to not work for a “minimum of three weeks” then the reason must be “by reason of circumstances arising as a result of coronavirus or coronavirus disease”.

Considering whether to ease the blow of dismissal by use of the furlough scheme is a grey area at this moment.

Further guidance or actual examples from workplaces may emerge as we go forward.

These are unprecedented times resulting in situations and challenges not faced by employers and HR professionals before.

But organisations still need to function.

Applying flexibility and making every effort to apply principles of fairness, while documenting and evidencing all of this, is likely to mean that future tribunals may have to accept some deviation from normal practice so long as a reasonable response to the present - and changing - circumstances can be adequately demonstrated.

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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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