Disciplinary Issues During Remote Working – How Do I Handle It?

For September 2020 we have asked the Employment Team at Tughans to provide practical answers to unusual, sensitive or complex work, related queries.  We call this “how do I handle it?”. 

The articles are aimed at HR professionals and other managers who may need to deal from time to time with the less common place disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination, or constructive dismissal or some other serious difficulty. 

I am an HR Manager and have recently learnt of an incident which could possibly constitute misconduct on the part of the employee in question.  I want to immediately instigate a disciplinary procedure to include an investigation into the alleged misconduct.  All of our employees, including the employee in question, are currently working from home, so I envisage dealing with the issue remotely.  What matters should I be considering about the implementation of any disciplinary procedure, in light of the Covid-19 pandemic? 

A lot of employers have no doubt already faced this issue over the past few months and it will be something that will arise in the future.  Disciplinary matters are going to continue to arise and will therefore have to be dealt with, however, an employer will have some extra considerations. 

First and foremost, you need to consider the well-being and health of all of the employees involved in the process, including witnesses, as well as the employee in question. You will need to be open and transparent with these individuals, by listening to their concerns, before deciding whether you should pause the disciplinary procedure, or invoke it.  You will need to consider whether you will be able to find a fair, reasonable, and safe way to carry it out, in the context of Covid-19.  You should be open and explain to them your plan, in relation to how you would propose to hold investigation meetings and any subsequent disciplinary hearing remotely. You should convey in writing whatever you decide to those involved. Additionally, if any of the employees involved are on furlough leave, then any participation at all by them in the process will require careful consideration, considering the restrictions imposed on them by the Coronavirus Job Retention Scheme. 

If you decide to proceed with your disciplinary procedure, of course any investigation will need to be carried out fairly. You have indicated that you want to hold your investigation interviews and any subsequent disciplinary hearing remotely by video.  If so, you will need to think about whether all of those involved, including witnesses, have the ability to access video equipment and have an internet connection.  Also consider whether any one involved is disabled and what reasonable adjustments may need to be implemented.  Whether it is an investigation meeting or a disciplinary hearing, you will need to ensure that all parts of it can be properly and fairly carried out and to consider issues such as witnesses giving evidence, how you would propose to introduce documents and have them considered and how you would plan to deal with any cross examination of witnesses in any disciplinary hearing. 

Remember also that the right to be accompanied will still apply to the disciplinary hearing, even if it is carried out remotely.  You may find that the companion is unable to attend and if so, you will have to offer the employee the chance to suggest another date and time, as long as this is reasonable and not more than five working days after the original hearing date.  If an employee is seeking a longer period, because the companion was unavailable, then consider whether you should allow that period or not.  Note that the right of appeal against any decision will still exist and any appeal procedure must also be carried out, taking into account the same additional issues as set out above. 

If the matter results in a claim before an Employment Tribunal, the Employment Tribunal will look at whether you followed your procedures in a reasonable, balanced and fair manner and considering the additional impact of the Covid-19 pandemic.  If you are in doubt about how best to proceed then I would recommend taking legal advice at an early stage.