One of the many difficulties that employers have been experiencing during the Covid-19 pandemic and lockdown has been the day-to-day management of employees working from home in circumstances where the norm is no longer normal. However, businesses must survive and employees’ conduct and performance remains a critical issue.

With this in mind, ACAS has published guidance on conducting disciplinary and grievance procedures during the coronavirus pandemic. While the guidance has no legal force, in the event of a dispute, tribunals may take its content into account. This is a matter of some concern regarding employers with Furloughed employees as helpfully, ACAS takes the view that a Furloughed employee can still participate in a disciplinary or grievance investigation or hearing including if they are the person under investigation, chairing a hearing, acting as a companion or witness or taking a note, but somewhat unhelpfully, that participation must be voluntary.

In our opinion, matters are not as straightforward. For example, employers should not need an employee’s voluntary agreement to begin disciplinary proceedings, pandemic or not. We are also concerned that employees who act as companions, note takers or Chair during a hearing may be regarded as working by HMRC, which would be inconsistent with their Furlough status. The Employment and Tax regimes are separate and distinct and are not always aligned in their approach. We would, therefore advise caution, case by case assessment, reliance on established legal principles and the existing ACAS Code of Practice on Disciplinary and Grievance Procedures as well as bespoke legal advice.

From our experience, it is possible to conduct disciplinary and grievance hearings during the Covid-19 lockdown, provided certain adjustments are made. We have advised on remote grievance hearings, online mediation and conducting virtual workplace investigations. Creative solutions are possible and can be tailored to the specific needs and circumstances of employers and their workforce.