Despite the partial easing of lockdown, many office-based workers will continue to work from home for several months to come. Although employers have been obliged to embrace remote working, the challenges it poses aren't limited to choosing a witty background for team Zoom meetings. While most employees are making efforts to work effectively (albeit in challenging conditions), a minority will take advantage of the situation to work less productively or even engage in unlawful competitive activity or fraud.
ACAS has published useful guidance on handling disciplinary and grievance issues during the lockdown and while staff are working remotely or furloughed. Some key points from the guidance:
- Employers need to give careful thought in each case to whether it is necessary to address a disciplinary issue immediately or whether it should wait until workplaces have reopened. There are competing interests at stake: the ACAS Code on Discipline and Grievances emphasises that grievances and disciplinary issues should be resolved without undue delay – but employers must consider whether the issue can be fairly investigated in a way which maintains social distancing (if the workplace is open) or if investigating it remotely (e.g. via Zoom meetings) will compromise the fairness of the process.
- The guidance states that furloughed staff can participate in disciplinary and grievance procedures (including as witnesses, companions or note-takers) without breaching the terms of the furlough scheme so long as they are doing it 'voluntarily'. However, this aspect of the guidance is somewhat unclear and employers will need to consider carefully whether proposed participation is consistent with the furlough scheme rules.
- Employers will need to determine how to deal with practical issues like access to necessary documents, whether all participants will be able to use any technological solutions and whether any reasonable adjustments need to be put in place.
Employers will also need to consider some additional issues not dealt with in the ACAS guidance, such as:
- If a hearing is being conducted remotely, will the employee be given an opportunity to confer with their companion remotely and how will the confidentiality of such discussions be protected?
- Similarly, with a remote hearing, the employer will not necessarily know who else is with the employee or listening into the hearing. The employer will need to set 'ground rules' for use of remote meeting software, including how confidentiality will be maintained and data protection requirements adhered to.
- The investigating manager and other company participants will need to ensure that they will not be disturbed during the meeting. Unscheduled appearances from children, pets and family members may be charming in a normal team meeting but could be interpreted as lack of care for confidentiality and the participants' wellbeing, particularly in the most sensitive investigations.
Although the COVID-19 crisis has demonstrated that remote working is manageable for many, conducting a disciplinary hearing remotely in many cases will be less than ideal. Employers should therefore ensure that staff working remotely are managed and supervised appropriately to reduce the risk that employees will take advantage of the lack of oversight to engage in misconduct.
