New Acas guidance on procedures during the coronavirus pandemic confirms that any disciplinary or grievance procedure must be carried out in a way that follows public health guidelines.
The guidance also confirms that someone on furlough can take part in a disciplinary or grievance investigation or hearing so long as they are doing so voluntarily and inline with current public health guidance.
Employers may be tempted to delay an investigation, but delay is unlikely to be the answer. The Acas Code requires employers to avoid “unreasonable delay” - an unreasonable failure to follow the Code can result in up to a 25 per cent uplift on an Employment Tribunal award. Moreover, unconscionable delay could provoke counter allegations, increase the likelihood of whistleblowing claims, or result in a constructive dismissal.
Where no one is physically in the office, it may not be sustainable to suspend on the basis that relationships have broken down, or because there is a risk of evidence being destroyed or witnesses influenced. If there is no express contractual right to suspend, suspension may amount to a breach of contract.
The potential pitfalls of remote investigations
Increasingly, investigations are conducted by an external party to demonstrate impartiality and fairness. These are now likely to be handled virtually. The investigator will need access to relevant information and be able to interview witnesses and the accused by video. The worker’s statutory right to be accompanied will need to be accommodated, and staff will need to be informed if they are prohibited from recording a video interview.
There are advantages to recording hearings; it will give a tribunal or court a greater opportunity for scrutiny, and an appeal court may be more willing to interfere with the first instance decision.
A remote investigation can increase the risk of data protection breaches and breaches of confidentiality. Those involved will need to be advised of their legal duties of confidentiality and what security measures to adopt, such as not sharing a Wifi password, using code names and other password protections.
To minimise the risk of a disability discrimination claim, disabled individuals may require adjustments to the set-up and conduct of a video conference.
Formulating a response to allegations, particularly where the detail of sensitive allegations is not disclosed, without proper access to evidence could render a process unfair, support an inference of discrimination or victimisation or, in the partnership context, be argued to be a badge of bad faith. Technical solutions or administrative assistance may be required.
Employers will need to plan how to claim legal professional privilege in circumstances where management discussions are more likely to be recorded in writing. This may mean ensuring the investigation is led by lawyers and contemplation of proceedings is made explicit from the outset.
Conduct of the hearing
New ground rules for the conduct of the hearing will need to be established, including the use of technology and access to documents. HR representatives are likely to need training on new issues such as problems with missing or illegible documents, or when points are raised about information provided by a witness who is no longer on the video call.
2020 will involve more processes being conducted remotely and that trend will probably continue. The sooner employers plan for this scenario the better.
Ivor Adair is a partner at Fox & Partners