How do you conduct a disciplinary hearing remotely?

Although for many employers the priority over recent weeks has been coping with the logistical and financial pressures caused by the coronavirus, we have still been getting a number of queries about how to handle things like disciplinary and capability hearings now that face to face meetings aren’t normally possible. Issues do inevitably still come up that employers need to address, so here we will take a look at what you need to bear in mind if you are thinking of taking action against one of your staff.

The procedure

The first step with any disciplinary or capability process is to look at your own policies and procedures. Ideally you should be looking to follow these as closely as you can in the circumstances. There may of course be some aspects of the process that won’t work for logistical reasons, but it is still best to try and follow that basic structure if you can.

Reasonableness

The watchword from an employment law point of view is ‘reasonableness’. So for the aspects of the process that you can’t follow because of the lockdown, think about the most reasonable alternative.

The most important parts of a fair disciplinary process can be summed up as follows:

• A fair investigation
• Informing the employee of the allegation against them and providing them with a copy of the evidence against them
• The employee having a right to be accompanied to the hearing
• The employee having the opportunity to make representations before a decision is made
• Confirming the outcome in writing
• Giving a right of appeal

In our experience so far, the main area where the lockdown causes obstacles is the hearing itself, including the right to be accompanied. As a face to face hearing isn’t possible, what is the next best alternative? In many cases that will be a video call (with the employee’s chosen companion and potentially a note-taker also invited to participate remotely too). However, that does of course depend upon everyone having the required technology, and on the technology behaving itself on the day!

If a video call isn’t possible, then we would suggest a telephone conference call, and with either option we feel it is best to ask the employee if they wish to submit anything in writing as well. Often employees choose to submit written statements or information at face to face hearings anyway, but specifically inviting them to do so in remote proceedings is a good way of ensuring they have had the opportunity to state their case in full.

As a last resort you could potentially conduct the whole process in writing, but that would probably only be in exceptional circumstances.

It goes without saying that what an Employment Tribunal will think about an adapted ‘remote’ disciplinary process hasn’t yet been tested, so no one can be sure at this stage what will or won’t be considered acceptable. However, these are exceptional times, and in our view if an employer can show that its adaptations to the process were reasonable and the employee has still had an opportunity to utilise the key parts of the process, there is a good chance that a Tribunal will consider that the employer’s approach was fair.

Some points to be aware of

• We have already come across some situations where the employee says that they do not agree to the disciplinary process being modified, and that they want the matter to wait until the lockdown ends. Sometimes this is a bit of a delay tactic, and obviously at the moment no one knows how much longer lockdown will last. Employers will need to judge this on a case by case basis, and the seriousness of the issue will of course be a relevant factor.

• It is worth giving some thought as to how you can best ensure the employee can use their right to be accompanied. For example, in video and conference calls there may be ways for the employee and companion to ‘break out’ and confer confidentially if they need to. The person holding the meeting should explain these arrangements at the beginning of the meeting.

• With video or conference calling, you will need to ensure that whatever method you choose is appropriately secure and confidential. In addition, with remote technology it is of course possible for the employee to make a recording (audio or video) of the proceedings. Some employers understandably do not want a recording to be made. If you feel that way, then you should make that clear to the employee and their companion – ideally in writing before the hearing, as well as stating it at the beginning – but bear in mind that realistically you cannot remove this risk entirely.

• There is no definitive answer yet as to whether an employee can be taken through disciplinary proceedings (or be a companion) while they are on furlough. During furlough the employee cannot carry out any work for the employer, but it isn’t yet clear whether or not attending a disciplinary hearing would count as work for this purpose. We await further guidance from the Government on this in due course.