ACAS has issued some guidance (the “Guidance”) for employers to consider in relation to handling disciplinary and grievance procedures during the COVID-19 pandemic. As we are all aware the ACAS Code of Practice is not legally binding, but Employment Tribunals do consider whether an employer has followed the ACAS Code of Practice in a fair and reasonable way.
The latest Guidance confirms that employers first need to decide whether conducting a disciplinary or grievance procedure would be fair and reasonable, on the basis that: -
- Employees maybe on furlough and therefore undertaking reasonable investigation maybe more difficult; and
- Social distancing and other public health guidance still need to be adhered to.
Interestingly the guidance goes onto to discuss whether employees on furlough can take part in a grievance or disciplinary procedure and explained that they can “as long as they are doing it on a voluntary basis” and it takes place in line with current public guidance.
The Guidance also emphasises that employers should give careful consideration to the health and well-being of employees when deciding how to proceed, but how does that link in with undertaking processes in a fair and reasonable time frame especially in a grievance scenario, what impact does that then have on the person that raises the grievance?
Of course the right to be accompanied will still remain, but the Guidance suggests that if an employee is unable to have their chosen companion at the disciplinary or grievance hearing due to COVID-19, for example, caring responsibilities then the Guidance suggests that employers should be more flexible in rearranging the date of disciplinary or grievance hearings.
The Guidance also confirms that normally there is no reason to record the meeting, but if it is recorded there must be a good reason and must be in-line with data protection law.
Finally, the Guidance confirms that employees will still be expected to go through their employers own internal procedures, and then ACAS pre-conciliation as normal. Any claim must usually be made within 3 months less 1 day. If it’s a claim about redundancy pay or equal pay, the claim must be made within 6 months.