Disciplinary hearings during the pandemic
Does a disciplinary or grievance hearing need to be postponed during the pandemic?
In short, no. Whilst many employees who are facing the prospect of a disciplinary investigation or hearing may well want to delay the process for as long as possible (especially if they are on paid suspension), there is no requirement for them to be postponed.
Deciding if the procedure should continue
The pandemic has disrupted the usual grievance and disciplinary processes but providing the relevant procedures are fair and reasonable then they can go ahead regardless. However, it does of course go without saying that all public health guidelines and social distancing requirements must be complied with.
The obligation for employers to carry out the procedures without unreasonable delay still applies, and they must therefore find a way to continue with the process where possible. There will be a heightened requirement for a safe and reasonable solution to be found during the pandemic. So, what does that actually mean?
Available options: Remote hearings
Providing the procedure can still be carried out fairly, it is possible to carry out investigations and hearings remotely. In order to do so, employers should take the following into account:
– Whether everyone has access to the relevant technology;
– Whether any reasonable adjustments might need to be made;
– Whether all necessary evidence and witness statements can be obtained and distributed to those who would need to see them; and
– Whether the person under investigation, or who has raised a grievance, can be fairly accompanied.
Employers should still ensure that a written record of any meeting is kept, however providing all parties consent, the remote hearing can be digitally recorded instead.
Face to face hearings
If the workplace is still open and all parties are able to safely attend, then a face to face hearing can be carried out.
All Government guidance at the time surrounding working safely during coronavirus should be complied with, along with a risk assessment.
If a safe, reasonable and fair solution cannot be found, then consideration should be given to as whether a procedure should be suspended. However, if this is the only option, it should still not be suspended for longer than necessary and the employer should regularly review its decision and continue with the procedure as soon as it can be done in a safe, reasonable and fair way.