Pitfalls of the disciplinary process during the pandemic

Jonathan Mansfield outlines how firms can address some of the challenges – which the Covid crisis has amplified – of dealing with employee misconduct

The Covid pandemic has had a significant impact on businesses’ disciplinary processes. Some of the worst problems have arisen because of the ill-judged assumption that suspending someone while everyone is working from home or on furlough will reduce the impact. 

The potential for significant reputational damage to those accused of serious professional misconduct in this way can render the whole disciplinary process unfair and can even lead to constructive dismissal claims. This is why it is so important to consider whether an alternative to the suspension might be better.

Another tricky question is how a hearing can be conducted fairly for staff working from home or those on furlough. New guidance from the Advisory, Conciliation and Arbitration Service (Acas) warns that extra care needs to be taken of the medium of the hearing. In some cases, a telephone call may be acceptable but, if there is a major factual dispute, a physical hearing – or at least a video conference – is by far a better option. 

One should not assume, though, that it is always safe to record a video conference. Indeed, the technology is generally reliable, but what if a heedless comment in a break-out room gets documented? It will have to be disclosed in the employment tribunal later, to the employer’s disadvantage. 

In any case, no matter what the medium is, it is essential to apply the key principles to the hearing process:

  • Individuals should be allowed to bring a companion

  • The conference set up should provide for all relevant people to join the hearing, including the decision maker, the note taker, the witnesses, the employee and their companion

  • Those responsible for the process should allow for its limitations; for instance, by arranging a series of calls to let all parties question the witnesses.

Moreover, the employer may have to make reasonable adjustments for employees with a disability; for instance, around flexibility as to who may accompany them.

Another issue with Covid is that not all employers appreciate the extent to which the pandemic has added to the stress of employees. A lot more companies now have to deal with the requests to postpone disciplinary hearings on the grounds of poor mental health of the accused. 

It is true that sometimes employees cite medical issues, including anxiety and depression, to delay the hearing. An argument against delay might be that getting the disciplinary out of the way could remove the main stress factor for the individual. In most cases the general principle of avoiding delay in the Acas code will apply, but not at the expense of a fair procedure. 

As to the practical difficulties of remote working or in matters involving furloughed employees, one of the biggest challenges is to make all relevant papers available. The organiser of the hearing on a case that has generated a lot of documents might be tempted to simply send multiple attachments. Those are not easy to browse and the employee can get confused about the allegations against them. The whole process can get delayed.

It may be that HR managers and directors have a high level of technical skills and know these things already. Unfortunately, it is more usual for managers without specific HR expertise to conduct investigations and disciplinary hearings. Their burden is all the heavier as they need to grapple with technology while trying to follow the key principles of the Acas code and the employer’s procedures. Someone from the inside or an external consultant will need to guide them and thus safeguard the company against the risk of claims.

Jonathan Mansfield is a founding partner of Thomas Mansfield Solicitors