While the underlying assumption is that disciplinary meetings will take place face-to-face, the crucial issue is whether any disciplinary process is fair.
This blog examines how a disciplinary process might proceed using remote technology. It should be read in conjunction with the latest ACAS guidance.
You should note that, if your disciplinary procedure is contractual, (unusual in the private sector) you will need to take extra care. This is because the use of a remote process could break the contract. It may be possible to agree a variation to the contract with the employee who might prefer to resolve any disciplinary matter, rather than defer it indefinitely.
Furloughed employees
ACAS guidance states that someone on furlough can take part in disciplinary processes and outlines the activities that are permitted including investigations, hearings, taking notes, being a witness and accompanying employees.
ACAS then add the proviso: “This is so long as: they’re doing it out of their own choice (‘voluntarily’)”. Will employees voluntarily attend a disciplinary meeting if that could potentially bring their (furloughed) employment to an end?
Of course, if the matter is sufficiently serious you might choose to forego the benefits of furlough and proceed with the disciplinary matter anyway. You will still need to keep in line with public health guidance.
Methods of communication
If you hold a disciplinary meeting remotely then, if reasonably possible, you should use a video link rather than telephone. There are plenty of software options:
- Facetime (on iPhones and iPads)
- Skype
- Zoom
- Microsoft Teams
Video links enable you to:
- See who else is in the vicinity
- Observe body language and reactions
- Record the proceedings (caution here)
- Bring in several people, such as a colleague, a TU Rep or, if applicable, witnesses
- Have some control over who speaks and when
There are a few matters that will need explicit attention:
Making evidence available
- If you need to share documents, then this needs to be done beforehand (which is good practice in any case) via secure email for example.
- Most platforms enable screen share (caution again) which may be helpful in the meeting.
- Cameras might also be used as an alternative to screen share or to show evidence.
- Conference software will allow you to bring in witnesses if need be.
Structuring the meeting
While the basic format (complaint, evidence, explanation, mitigation, TU submission, adjournment, etc) will remain the same, there are other considerations:
- Familiarity with the technology – a lack of technical skill must not prejudice the outcome
- A decision over whether to record the meeting – either party might veto this
- Who will hold any recording?
- Will you have the recordings transcribed and to whom will transcriptions be available?
- The implications of the General Data Protection Regulations
- Agreement over who speaks when; how to indicate “wishing to speak”; the employer will usually have the final say
- If some participants are local and others (TU rep for example) are remote you may need to give thought to positioning of screen(s) and control of the meeting
- If manager-colleague or employee-rep need to confer privately, you need to consider how to put that into effect in practical terms
- The possibility of deferring the meeting until post-lockdown if employee or their rep is seeking to exploit the remote process.
At present there is uncertainty over how long the lockdown will be. Therefore, despite the challenge it presents, you might like to take the opportunity to hold a disciplinary meeting in a virtual way now rather postpone it for a time when there may be other priorities.
Malcolm Martin FCIPD
Author Human Resource Practice
Blogs are for general guidance and are not an authoritative statement of the law.