Although workers are gradually returning to the workplace, remote hearings are likely to continue for some time. So what lessons have we learnt?
Lesson 1: Fair and reasonable
It’s important to ensure that by proceeding with grievance or disciplinary procedures remotely, the overall fairness of the process is not impacted and you don’t act unreasonably.
This requires consideration of the following:
- The individual circumstances of the case.
- The current situation of the relevant parties who would assist with the process – are they working remotely, at the office, or furloughed?
- Is it possible to conduct the procedure safely, fairly and reasonably?
- Can any adjustments be made to the usual process so that it can still proceed fairly and without unreasonable delay?
- If the procedure must be carried out remotely, are there any limitations to this?
- The impact on the wellbeing of the parties involved if the process is delayed.
- What does the internal disciplinary or grievance policy say?
Lesson 2: Technology
Effective use of technology is essential to make the process feel as ‘normal’ as possible.
Often, video conferencing is preferable to audio-only meetings. To avoid issues, HR should check everyone can access the technology and carry out a test-run beforehand.
It is important that the technology is secure and that meetings are password-protected. Remind those involved in the process of their duties of confidentiality and any relevant confidentiality policies, and confirm with the employee that no one else is present (except any companion allowed).
Consider whether the employee has a disability that might impact on the procedure and whether any reasonable adjustments are required. For example, a deaf employee that uses sign language/lip reading will require video calling.
Lesson 3: Evidence
One of the key challenges for HR has been the management of documents for remote meetings.
It is best practice to circulate the same documents to everyone in advance, limiting this to necessary documents only and adding page numbers. Consider whether alternative formats, such as larger font, are required.
If possible, the chair should use the 'share screen function' in video meetings so everyone can review the evidence at the same time.
When considering numbers of witnesses, be mindful of the practicality of remote interviewing and whether it may disturb any periods of furlough leave.
Lesson 4: Covert recording
Recording meetings is generally prohibited unless all parties have agreed, and could otherwise constitute misconduct.
It is advisable to review your disciplinary or grievance policies and if recording is prohibited, highlight this at the start of the meeting. Ask the employee to confirm that they are not recording the meeting and remind them they do not have a legal right to do so. Remember that evidence gathered covertly may still be admissible in an Employment Tribunal in certain circumstances.
Where parties have agreed to use a recording facility, this can be a useful alternative to taking notes.
Lesson 5: Furloughed employees
Furloughed employees can still submit grievances or be subject to disciplinary procedures. ACAS guidance says that those on furlough can take part in a disciplinary or grievance investigation or hearing if they do so voluntarily and it takes place in line with public health guidance.
To eliminate the risk that acting as an investigator, meeting chairperson, note-taker or witness whilst on furlough constitutes "work" under the scheme, it is advisable to put the employee on part-time furlough and pay their usual wages during the relevant period.
Heidi Watson is partner at Clyde & Co