MANAGING DISCIPLINARY PROCESSES DURING LOCKDOWN
Managing disciplinary processes during lockdown is, naturally, something which is challenging employers around the world right now. Many of the same principles will apply to the ones we set out in the first post on our Covid-19 series of blogs. There are, however, some additional important considerations when it comes to disciplinary processes.
We’ve had very positive feedback from clients on the practical approach we took to using a case study in the last article, here, so let’s take a look at a new scenario to help us consider how to approach managing disciplinary processes during these difficult times:
The Scenario
Rose has been working on a project with Jeremy for a number of months. They have worked well together so far and, following the instruction by the Government to lock-down, both Rose and Jeremy have been working from home and communicating through daily video meetings. The meetings generally take place during normal working hours, but as the deadline for project delivery approaches, there have been occasional late-night meetings.
At one of these late-night meetings it becomes apparent to Rose that Jeremy has been drinking and he makes a comment to Rose that “if he wasn’t married, he would definitely been interested.” He goes on to tell her that “she has an amazing mind as well as a beautiful body.” Rose feels very uncomfortable, and tries to laugh it off. The next day, however, she contacts HR explains what has happened, says that that she no longer feels comfortable working with Jeremy and says that people shouldn’t have to suffer these types of advances.
Practical Actions During Lockdown
An employer who wishes to follow a best practice model and reduce risk would need to act quickly. Rose has raised a complaint about Jeremy’s conduct which on its face could amount to harassment. As a recap Jeremy will have harassed Rose if he has engaged in unwanted conduct related to a protected characteristic (likely to be Rose’s sex in this scenario) and that conduct has the purpose or effect of violating Rose’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. It is important to remember that even in these unprecedented times, the Equality Act continues to apply. Managing disciplinary processes during lockdown may be a more complex task than the norm.
The first step will of course be to protect Rose from suffering similar treatment in the future. The Company should, therefore, immediately consider whether and how it is possible to close down the interactions between Rose and Jeremy. This might be tricky, and Jeremy is likely to want to know why. His employer doesn’t, of course, need to give details of Rose’s complaint at this stage. They should however, consider advising Jeremy that a complaint has been raised about his conduct, that this is being investigated, and that an investigator will be in touch in due course.
It is important to consider when managing disciplinary processes during lockdown that both parties may already be feeling isolated due to the coronavirus lockdown, and their normal sources of support might not be available. As a result, an employer trying to follow a best practice model to mitigate risk will want to consider what support they can reasonably put in place during this period. Employee welfare programmes can be particularly helpful in this. The employer should also make it clear to both parties that the investigation will be progressed as quickly as possible and that they can raise any concerns with HR or their line manager at any time.
Suspension During Lockdown
Rose’s employer should also consider whether it is necessary for Jeremy to be suspended. As HR practitioners know, suspension is a neutral act implemented where there are concerns that the person who has been subject to an allegation may impeded the investigation or otherwise present a serious risk to the interests of the business, its customers or other employees. In this case, as Jeremy is already working from home, suspension may not be necessary. The obvious risk in suspending without good reason is that Jeremy argues that the act amounts to a breach of trust and confidence, resigns and bring a claim for constructive unfair dismissal. The key for the employer, of course, is to ensure that they consider whether it is appropriate and record the reason for their decision. Providing they do this (and their decision is a reasonable one based on the facts) it may be unlikely that an Employment Tribunal will take issue with this if the matter should proceed that far.
The Lockdown Disciplinary Plan
The next step will be to ensure the employer has a fair and reasonable disciplinary plan for managing disciplinary processes during lockdown. What do we mean by this? Well, in pre-coronavirus lockdown times, employers will very likely have had a well-trodden path for managing such issues. In these unprecedented times, however, it is likely that a significant number of staff will be absent due to sickness, shielding or furloughing.
The Investigation During Lockdown
In this case, Rose’s employer should consider in advance who will carry out the investigation, any disciplinary hearing and subsequent appeal, and who will step in if for any reason those people become unwell or are furloughed. On that point, Rose’s employer should remember that it may be possible to use statutory Directors who have been furloughed, so long as their activities can be said to be in the course of their statutory duties. However, it would be sensible to reserve those Directors for the latter stages of the process to ensure that a member of staff with sufficient seniority is taking potentially difficult decisions, and legal advice should be taken in advance given the evolving nature of Government Guidance.
On the investigation, if Rose’s employer has concerns about having the necessary in-house expertise or is worried about the number of staff available for the process, then it might consider outsourcing the investigation to an external firm. Such outsourcing is unlikely to be appropriate at a later stage in the process (save in some exceptional circumstances) and can also be useful if there is any question around the independence of the investigation, or where the matter is particularly complex. Indeed, a significant portion of our work here at Heminsley is carrying out all kinds of ‘people’ investigations from whistle blowing and bribery & corruption to complex disciplinary and grievance issues.
Once the appointment has been made, the next step in managing the disciplinary process during lockdown (once the investigator us up to speed with the available evidence) will be an investigation meeting with Jeremy. Social distancing rules mean, of course, that meeting in person will be almost impossible during lockdown. As a result, unless it is entirely unavoidable, we recommend that this meeting takes place by video conference. Though a video conference is clearly second best to meeting in person, it is difficult to get a feel for how the witness is responding to questions via either a voice-only call or by email. The complaint raised by Rose is sensitive and it will be important for the investigator to be able to take their cues from Jeremy’s responses: virtually impossible if the investigator is unable to see him.
We also recommend that someone attends the video conference to take notes so as to avoid any later challenge as to what was said, and while Jeremy may not have a right to be accompanied at this meeting, particularly during these difficult times, it may be good practice to allow it. Usually this would be a trade union representative or a colleague, but when managing a disciplinary process during lockdown, be prepared to be more flexible. This might involve agreeing that Jeremy can be accompanied by a family member (though our comments around confidentiality during an investigation meeting from our last blog apply in the same way as they do when managing disciplinary processes during lockdown. As ever, document the outcome, in this case the participants’ agreement to keep what is discussed confidential.
In this circumstance, if no-one else was involved in the call, it is unlikely that other employees will need to be interviewed as witnesses. In a more complex disciplinary process it may be more appropriate for those employees to be interviewed. Remember that furloughed employees ought not to be interviewed if you want to avoid the risk of a furlough payment being disallowed. In that instance, consider whether a fair disciplinary process can be carried out without their evidence, and if not, consider putting the process on hold temporarily (while ensuring that Rose remains separated from Jeremy). If those employees look likely to be absent for a significant length of time, You may consider either ‘unfurloughing’ or the investigation may have to continue on the basis of available evidence.
The Disciplinary Hearing During Lockdown
In our scenario, having compiled their report, the investigator has found that Jeremy has a case to answer and that the matter should be heard in the context of a formal disciplinary hearing. During the investigation meeting Jeremy admitted to making the comments to Rose, although he explained that his mother-in-law was unwell, and his stress levels were high which meant that he was drinking more than usual. He was very sorry and distressed that his comments had upset Rose.
Remember that it is not an investigator’s role to decide on any disciplinary sanction. The next step for Jeremy’s employer will therefore be to arrange a disciplinary meeting with Jeremy. Even in coronavirus times his employer should not depart from formality requirements: the invitation to the meeting should be in writing and set out the case against Jeremy. His employer does not need to provide him with the investigation report though it may be good practice to do so. In a more complex disciplinary process Jeremy’s employer should also provide any witness evidence. The key of course is that the accused receives all of the same evidence provided to the decision maker. This of course applies whether you are managing disciplinary processes during lockdown or once you are back to normal.
As with a grievance meeting and our previous blog, a disciplinary meeting during lockdown can take place via video-conference. As in normal situations Jeremy has the right to be accompanied. Bear in mind here, however, our earlier comments around flexibility and consider carefully whether it is reasonable to refuse, for example, the attendance of a family member.
The meeting should take the same form as in pre-coronavirus times, Jeremy’s employer should explain the case against Jeremy and allow him or the person accompanying him to set out Jeremy’s case. The companion cannot answer questions on Jeremy’s behalf. Notes should be taken in the usual way to reduce the risk that the individual later denies saying something that they did say in the hearing.
At the end of the meeting, Jeremy should be told what will happen next and given a timeframe for a disciplinary outcome. If the outcome is likely to be delayed because of staff absence due to illness or furlough, then this should be explained. Jeremy’s employer should keep him updated if timeframes slip.
What if Jeremy is sick and cannot attend the disciplinary meeting? If the illness is due to coronavirus, then his employer should of course wait until Jeremy has recovered before holding the meeting. If Jeremy is absent for other reasons, for example, stress, then his employer should consider what adjustments might be put in place to help Jeremy attend, for example, phasing the meeting over a few video-conferences. If Jeremy’s sickness absence looks like it might be long-term then Jeremy’s employer might consider allowing him to make representations in writing (having taken OH advice on the issue). However, if ultimately Jeremy is unable to participate in any meaningful way for an extended period of time there may be steps an employer can take to procure attendance. You should take good legal advice on this whether you are managing disciplinary processes during lockdown or in a post Covid-19 world. If none of those things bring the employee to the table, however, the employer might consider dealing with the matter on the papers, making their reasons for doing so clear in the disciplinary outcome.
Disciplinary outcome
What might a disciplinary outcome look like in Jeremy’s case.
Much will depend on Jeremy’s previous disciplinary record and whether he has a live warning in place. Dismissal may or may not be within the range of reasonable responses during these unprecedented times of coronavirus dependent on this. A Tribunal will, of course, expect a reasonable employer to take into account the stress and pressure that its employees are under. In this case, the employer decided that a final written warning was the appropriate outcome.
As a practical point, Jeremy’s employer should remember that issues of culpability and mitigation are separate. The first question is whether the allegation against Jeremy is proven (on the balance of probabilities). If it is then the next step is to decide the appropriate sanction. It is only when the sanction has been decided that mitigation (in this case the stress that Jeremy was under due to his mother-in-law being unwell) should be taken into account to decide whether the sanction should be reduced. This reasoning should be fully set out in the disciplinary outcome letter.
Rose’s employer might also consider recommending mediation between the two. If the company has no trained mediators in-house, the Centre for Effective Dispute Resolution (“CEDR”) offer mediations online and by telephone. This can be a quick and relatively cost effective way of getting Rose and Jeremy to work together again, particularly if their collaboration is essential to the organisation’s business.
Disciplinary Appeal
In this case, Jeremy was reasonably happy with the disciplinary outcome and decided not to appeal. However, if an employee does wish to appeal their the outcome of their disciplinary process during lockdown then this should be progressed as quickly as possible. Again the appeal meeting can be held via video-conference and the employee has the right to be accompanied. The appeal should be heard by someone who has not had any involvement in the process to date, which is why it is so important to have a disciplinary plan in place which identifies the employee with sufficient seniority and independence to hear the appeal. Again, employers should communicate the timeframes under which Jeremy can expect to receive the outcome, and keep him updated if there is any slippage.
Finally, we repeat our warning in our earlier blog post. Whether you are managing disciplinary processes during lockdown or not, employers should be constantly mindful of what they put in writing, and conscious that it may later be disclosed under a SAR or in Employment Tribunal proceedings.
