What can an employee do if the employer insists on proceeding with a disciplinary hearing during the Coronavirus lockdown, either remotely or by attendance at a neutral place?

What can an employee do if the employer insists on proceeding with a disciplinary hearing during the Coronavirus lockdown, either remotely or by attendance at a neutral place?

The Acas guidance for employers and employees on coronavirus (COVID-19) is silent as to how disciplinary meetings should be dealt with during the coronavirus lockdown. However, where employees are not currently attending the workplace it does say that, if an employee refuses to attend work without a valid reason, this could result in disciplinary action.

The response below refers in a number of places to the Acas Code of Practice on disciplinary and grievance procedures (Acas Code) and guidance on discipline and grievances at work. For information on the significance of the Acas Code, see Practice Note: Acas disciplinary and grievance code—application.

What can an employee do if the employer insists on proceeding with a disciplinary hearing during the Coronavirus lockdown, either remotely or by attendance at a neutral place?

The answer to this question is likely to depend on whether the employee is able and willing to attend such a hearing and, if not, the reasons why not.

There is nothing in principle to prevent an employer from continuing with disciplinary proceedings during the coronavirus pandemic or lockdown. If the employee in question is on furlough under the Coronavirus Job Retention Scheme (CJRS), the employer cannot ask them to undertake work for, or on behalf, of the organisation or any linked or associated organisation. This includes providing services or generating revenue. However, it is unclear whether attending a disciplinary meeting would be regarded as ‘work’. See Practice Note: Coronavirus Job Retention Scheme.

The Acas Code and guidance both appear to contemplate that disciplinary meetings will take place in person. For example, the guidance states that the employer should ‘arrange a time for the meeting, which should be held as privately as possible, in a suitable room, and where there will be no interruptions’.

The Acas Code states, in relation to the disciplinary meeting: ‘employers and employees (and their companions) should make every effort to attend the meeting’ (para 12). Paragraph 25 goes on to say: ‘Where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause the employer should make a decision on the evidence available.’ See also the guidance, in particular under the heading: ‘What if an employee repeatedly fails to attend a meeting?’.

For further information on the Acas Code generally, see Practice Note: Acas disciplinary and grievance code—procedural requirements.

In the context of the coronavirus lockdown, it may be reasonable for the employer, when seeking to schedule a disciplinary meeting:

• to consider whether the employee is working as normal at their workplace, working from home, on furlough, or self-isolating or shielding, and what adjustments, if any, need to be made to the process to deal with the situation

• before reverting to making a decision on the evidence available without a meeting (as the Acas Code suggests where the employee is unable or unwilling to attend a disciplinary meeting), to seek to hold the disciplinary meeting remotely ie by video conferencing or, failing that, by telephone

In normal circumstances, if the employee is unwell the employer might want to obtain a medical opinion as to whether the employee is well enough to take part in a disciplinary process, notwithstanding their ill health.

If the employee has a disability, it may also be relevant for an employer to consider the potential impact of the Equality Act 2010 (EqA 2010), in particular the employer’s duty to make reasonable adjustments, eg in relation to a disciplinary meeting. For further information, see Practice Notes:

• Disability

• Duty to make reasonable adjustments

In normal circumstances, reasonable adjustments might include:

• putting the disciplinary process on hold until the employee can attend

• holding the meeting at a (neutral) venue closer to the employee’s home, or at the employee’s home

• incorporating frequent rest breaks into the meeting

• allowing additional time for the employee to prepare for and present their case

• allowing the employee to choose a companion from outside the usual categories, for example a family member or friend

• allowing the employee to make written representations, and

• allowing the employee’s companion to take a more active role at the meeting

An employer may consider making adjustments such as these, or other concessions to facilitate the hearing, in order to prevent the disciplinary process being put on hold, even where the employee is not disabled for the purposes of the EqA 2010.

See also Practice Notes:

• Dismissing fairly for conduct reasons

• Advising managers: how to plan and prepare for a disciplinary hearing

• Advising managers: how to conduct a disciplinary hearing

For information on the right to be accompanied under section 10 of the Employment Rights Act 1996 (ERA 1996) generally, see Practice Note: The right to be accompanied.

What if the employee’s workplace representative is unable or unwilling to attend to the Coronavirus and the employee insists on this companion?

ERA 1996, ss 10(4) and 10(5) provides that, if the worker requests a postponement of the hearing to accommodate his chosen companion, the employer is obliged to agree to that request provided the worker proposes an alternative time and date for the hearing that:

• is reasonable and

• is within the five working days (ie not including weekends, bank holidays, Christmas Day or Good Friday) after the day originally proposed

However, employers should be careful about refusing proposed alternative dates that are within a reasonable period. An employer’s refusal to postpone a disciplinary hearing for a reasonable period, even if beyond those five working days, may amount to procedural unfairness so as to render a subsequent dismissal to be unfair for the purposes of a claim for unfair dismissal. See Practice Note: The right to be accompanied—Requests to postpone hearings. According to the guidance (p 26):

‘where there is a request to postpone a hearing for more than five days because a trade union representative or other companion is not available, it may be fair to allow the postponement if it does not cause unreasonable delay’

the employer should consider the facts and decide what is fair and reasonable in the circumstances.

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