Conciliation service ACAS has released new guidance for employers seeking to start or continue with disciplinary or grievance proceedings during the coronavirus lockdown.

The guidance confirms employees can still raise a grievance or be subject to a disciplinary whilst working from home, or on furlough. However, employers must consider if they can carry out a fair and reasonable procedure.

Carrying out a fair procedure

Normal employment law principles and the ACAS Codes of Practice continue to apply during the pandemic. Employers must comply with public health guidelines when arranging a process.

Furloughed employees can participate in a disciplinary or grievance investigation or hearing provided they are doing so voluntarily. Where staff are working from home or furloughed, employers should consider whether it would be preferable to postpone. The views of those involved should be taken into account.

The right to be accompanied still applies and the employee's companion must be able to attend and participate in the hearing. If a delay is requested to facilitate a companion's attendance, consider whether a delay of more than five days is reasonable if the companion's availability is more limited than usual. Employers should give special consideration to staff health and wellbeing. It is sensible to talk through options with those involved in respect of when to proceed and how, and agree a way forward.

Employers should consider the participants' ability to access to the required technology for the hearing. Reasonable adjustments to the process may be required. Additionally, written evidence will need to be seen clearly by all participants, eg through a screen-share facility.

Video meetings should not generally need to be recorded, but if they are, usual data protection considerations will apply.

The guidance applies equally to appeal hearings. The time limit for making a claim to an employment tribunal is still the same, regardless of any decisions to postpone the disciplinary or grievance procedure.

  • Michael Delaney is a partner at award-winning law firm VWV, which has offices in Clarendon Road, Watford