So, the government were clear that furloughed employees cannot do any work for you (other than training and certain director duties). The government didn’t include formal meetings in the list of exceptions. ACAS have just clarified the position – whilst they haven’t created new law their guidance is best practice and should be followed. Here’s a summary and our thoughts.
ACAS have set out that a furloughed employee can be involved in disciplinary and grievance meetings if they do so voluntarily, in line with current public health guidance and:
- are under investigation in a disciplinary procedure
- have raised a grievance
- are chairing a disciplinary or grievance hearing
- are taking notes at a hearing or during an investigation interview
- are being interviewed as part of an investigation
- are a witness at a hearing
- are an employee’s companion for a hearing
Although ACAS have said that the individual must only be involved if they do so voluntarily we don’t think ACAS believes any individual will actually skip to a disciplinary or grievance meeting! Our view is that ‘voluntary’ participation means that the individual hasn’t shown real concern at being involved and in particular hasn’t genuinely raised any of the issues below (with the issue remaining unresolved).
ACAS have stated that the disciplinary or grievance process should only progress if it’s ‘fair and reasonable’. This means that before you go ahead with the process you must consider:
- whether each individual involved has a private space to sit in to attend the meeting without breaching social distancing rules
- any objections raised by anyone involved in the meeting or the process
- if you’re running the meeting remotely whether the technology might hamper a fair process (will it be difficult to hear, will poor wifi restrict the conversation etc)
- whether the individuals involved are sick or have suggested that they are under mental strain making any formal process difficult for them to handle
- whether witness statements or other visual evidence will be clearly seen by all at the meeting (and beforehand in order to prepare)
- whether it will be possible to fairly and adequately assess the evidence and ask questions openly and clearly at a remote meeting
If you want the full list of what you need to consider click here.
Once you have made your decision to hold the meeting (if that’s the case) and you continue with the process you should note your reasons for doing so, explain them to the individual (we’d suggest doing so verbally and in writing) and keep a note on the employee’s record.
If you want support with how to approach a disciplinary process please click here.
This update is accurate on the date it was produced (06 May 2020), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.