Faced with the prospect of conducting a disciplinary during lockdown, people professionals must carefully weigh up the appropriateness of doing so virtually with the risk of making the parties involved wait until ‘business as usual’ resumes (whenever that might be), which could result in a tribunal later down the line.
According to new guidance issued by Acas, its code of practice and the law will still need to be followed during the crisis. Acas advises that disciplinary meetings can still go ahead as long as social distancing measures are adhered to, and that the employee has access to the necessary technology.
Helen Hayward, HR consultant at Defuse HR, says technically there’s nothing stopping an organisation conducting a disciplinary remotely. But, she says: “It comes down to an ethical and moral issue. Is it right to do it remotely, but equally, is it right to leave that person with stress?”
Check your policies
According to Hannah Netherton, partner at CMS, the first step is to get internal policies in order. “HR should check its internal policies to ensure there is enough flexibility to conduct the process [virtually],” says Netherton. “If the policy states a face-to-face meeting, then you may have to get approval from the individual in question.”
Similarly, an existing policy may dictate the time frame within which a disciplinary process must be completed. “If you’re lucky, your policy will say you have to conduct the meeting in ‘a timely manner’,” says Hayward. “But if they say it will be conducted in ‘X amount of days’ then those policies need to be updated rapidly if you plan to defer.” Otherwise, she warnes, your organisation could get an appeal based on the fact the disciplinary was conducted outside of the stipulated time frame.
Get familiar with the tech
“The key to a successful virtual disciplinary is practising with the platform and learning to use it,” says Pete Colby, director at mediation and employee relations service Pragmatism. “Never mind being an HR professional, you need to be comfortable with the technology above all else. If the technology doesn’t work the meeting can be a nightmare.”
Netherton advises using video call technology you can be confident will offer watertight security. “You want to make sure anyone accompanying the employee like a union rep is able to join the meeting, and ensure you use a secure platform where you can see who else is there,” she says.
“Be clear in advance about whether the call is being recorded and give a clear indication on whether the individual should or shouldn’t record,” she adds.
While lockdown may have made it acceptable for people to don loungewear for more informal catch ups, Hayward says these new rules do not apply to disciplinaries. “Make sure everyone has confirmed they will have privacy while they are in the meeting,” she adds. “If they are at home with kids, pets or family members, they need to know this is a work meeting and the door will be shut. That needs to be quite explicit in the invite letter or email.”
Audio distortion may also change the way the conversation is conducted: “This isn’t going to be a fast flowing conversation, there will be pauses in between questions and answers,” says Hayward.
Colby agrees, recommending leaving more and longer pauses between sentences: “If two people talk at once it can distort the audio and also there can be slight delays. You need to get into the habit of saying something and pausing, and I usually explain that before the meeting starts to avoid confusion.”
What about furloughed employees?
“There is a lot of confusion about whether you can hold [a disciplinary] meeting with a furloughed employee,” explains Colby. “And the answer is 100 per cent yes. They aren’t doing their job by attending this type of meeting.”
Acas guidelines confirm that employees on furlough can attend a disciplinary meeting, take notes, be interviewed as part of an investigation, and be a witness or an employee’s companion – as long as this is done voluntarily.
But Netherton advises erring on the side of caution: “The cautious approach would be to bring the employee back from furlough in order to undertake the disciplinary. I think it is also fair to say that a manager who has been furloughed could not conduct the meeting.”
Take advantage of the unexpected benefits
Colby says conducting such meetings virtually can, perhaps surprisingly, bring advantages. He points to being able to easily put people in breakout rooms (without appearing rude), and increased confidentiality.
“No matter how confidential the meeting is, if it is done in the office people eventually get wind that ‘something is going on,’ but you get none of that in a virtual setting,” he says. “Lockdown is a brilliant opportunity for HR to get these meetings out of the way… because virtual disciplinaries have so many advantages over face-to-face meetings.”
He adds that with a virtual meeting, a visibly upset employee will not have to face going back into the office, and will be in the comfort of their own home: “You are in a much safer environment and I actually think in hindsight some of the mediations I have done in the past would have been even better online.”
Mitigate the impact on HR and disciplinary managers
Hayward warns the impact of a disciplinary process for people professionals will be just as – if not more – stressful during lockdown than in more normal times.
“I’ve never met a member of HR who is happy to dismiss someone or conduct a disciplinary meeting. In the current climate people are going to feel that discomfort more acutely,” she says. “HR and the disciplinary manager need to build their resilience and learn to bounce back from the situation.
“You may need to do something positive that will give you the bounce you need. HR and the managers may need to allocate this time before and after the meetings to give them the headspace and mental preparedness.”