Why You Need To Update Your Disciplinary And Grievance Processes: A UK Case Study

• Published date: 09 September 2020
• Subject Matter: Employment and HR, Coronavirus (COVID-19), Health & Safety, Employment and Workforce Wellbeing, Reporting and Compliance
• Law Firm: Vistra
• Author: Ms Victoria McMeel

Terms that have recently become part of our day-to-day vocabulary, including social distancing and remote working, must now be considered when developing employment practices.

Disciplinary and grievance procedures are important areas businesses must now reconsider. Not only do organisations need to comply with local laws and practices, they must also determine how to best to handle employee-related issues in a way that ensures the safety of staff and protects the business from potential liabilities that may not have been a consideration just a few months ago.

The legal position

Laws and other rules relating to disciplinary and grievance procedures vary by jurisdiction. In the EU, for example, businesses often must account for any relevant collective bargaining agreements or equivalent, in addition to applicable laws.

In this article, we've used the United Kingdom's laws and guidance to explain how an organisation's procedures might be altered to account for social distancing and remote working. The observations here will be broadly applicable to most jurisdictions, but we recommend obtaining country-specific support when conducting a disciplinary or grievance process to ensure compliance with local laws and other obligations.

A case study: Disciplinary and grievances in the UK

First considerations for employers

In May 2020, Acas released new guidance on disciplinary and grievance procedures during the coronavirus pandemic. It confirms that the Acas Code of Practice - which sets out minimum procedures for organisations to follow - still applies during the pandemic. This means that businesses must consider two main issues:

1. Whether a procedure can be carried out fairly and
2. Whether a procedure can be carried out safely.

Fair procedures and accounting for remote working

Assessing whether a procedure can be conducted fairly should be done on a case-by-case basis. This applies equally to staff who have returned to the office and those who continue to work remotely.

Under the Acas Code of Practice, a fair disciplinary or grievance procedure involves certain steps that protect the employee, such as holding meetings privately and without "unreasonable delay," and ensuring the independence of senior staff members involved. Crucially, employers must make sure that employees have the right to be accompanied by a trade union representative, co-worker or other representative during meetings, and that employees have the right to appeal.

When determining whether or not...