Grievances and Disciplinary Meetings during Lockdown – Proceed or Postpone?

Employers have had to respond to the unique challenges faced by the Covid-19 pandemic, adjusting to the current lockdown by making most employees work remotely from home. This poses potential challenges in running disciplinary, performance and grievance procedures with the workforce. It is important to keep in mind that where possible the usual standards will apply.

• Employers have a duty to maintain trust and confidence between themselves and their employees, and not to behave in a way in which (without reasonable and proper cause) would destroy this relationship.
• Employers have health and safety obligations towards their employees.
• Leaving a disciplinary, performance or grievance process that has already started hanging without informing all those involved of the intentions could amount to a breach of one or both of the above.
• A failure to investigate and deal with a grievance raised by an employee could amount to a breach of contract depending on the wording of the procedure.
• If an employer decides to delay a grievance, disciplinary or PIP matter then they must ensure that alternative measures are put it place to prevent any escalation. For example, if there was an issue between an employee and their line manager then it might still be possible to appoint a different interim manager during the lockdown if appropriate. However, if action is not taken then the reason for any delay should be explained to the employee.
• Whilst an employer would probably prefer to avoid launching a disciplinary process during the lockdown it may prove necessary if there is suspected misconduct whilst an employee is working from home.
• Employees have the right to be accompanied at disciplinary and grievance hearings. Whilst remote working makes physical face-to-face meetings unlikely, there is no reason why a grievance or disciplinary procedure could not be handled remotely with attendees joining via Microsoft Teams, Zoom, Skype Business or other such software.
• It may be unwise to start a performance improvement plan (“PIP”) whilst lockdown is in force particularly if childcare is needed whilst the schools are closed or if physical or mental health issues are impacting on performance. If a PIP began prior to lockdown, then there is the question of whether to continue it, and if so, how to monitor performance remotely and conduct the process going forward.
• It is also important to take minutes or notes at meetings conducted remotely and to circulate them in the same way as would have happened whilst operating in the office.

If you have any queries about your specific circumstances, our specialist Employment team are here to help.