Lockdown has presented difficulties for companies involved in internal investigations, dealing with whistleblowers, grievance claims and disciplinary processes. Ivor Adair examines the latest Acas guidance on the subject and explains the key issues and solutions.
Most employers reacted to the Covid-19 crisis by first concentrating their energies on a business survival strategy, closely followed by addressing the implications of cost-saving measures such as furlough. Employers are now turning their attention to the host of novel HR issues that are coming over the horizon.
Return to work
One of the more challenging issues is dealing with internal investigations, and grievance and disciplinary processes in the context of the pandemic. New Acas guidance confirms that its code of practice on disciplinary and grievance procedures still applies and that any disciplinary or grievance procedure must be carried out in a way that follows public health guidelines regarding social distancing and closure of certain business premises.
Delay may not be the answer
The Acas code requires employers to avoid “unreasonable delay”. With social distancing measures likely to continue for a substantial period, delaying processes might create rather than alleviate problems. The consequence of an unreasonable failure to follow the code can be up to a 25% uplift on an employment tribunal award. At the extreme end, wholly unreasonable delay could result in a constructive dismissal, or provoke counter allegations and increase the likelihood of victimisation claims.
Some individuals, particularly those facing career-ending allegations, may not welcome delay, while others may prefer the traditional route when people are able to return to the workplace. The new Acas guidance notes employers should consider if anyone involved has a reasonable objection to the procedure going ahead at this time. The guidance also provides that employers should explain the decision to go ahead, or postpone, to those involved.
Ordinarily an employer dealing with serious allegations may want to suspend the employee, but where no one is physically in the office this may not be reasonable. Individuals may argue there is no real risk of evidence being destroyed or witnesses influenced. If there is no express right in the contract to suspend, suspension could amount to a breach of contract. Those rare cases where suspension is argued to form the basis of a personal injury claim or, a claim seeking injunctive relief to restrain a suspension, might become more common in this climate.
Conducting a thorough remote investigation presents its own challenges and some aspects may need feasibility testing. The investigator (who may be an external party) will need secure and reliable access to information and the ability to interview witnesses and the accused effectively. Conducting interviews by video, while not impossible, may be difficult and proper preparation will be vital. There can be irksome issues such as broadband quality, or difficulties presenting and sharing documents. The new Acas guidance provides that for most disciplinary or grievance meetings held by video, there will be no reason to record the meeting. Employers are unlikely to consider recording disciplinary or grievance meetings as desirable and if so, all those involved will need to be informed beforehand.
The new Acas guidance also confirms that someone on furlough leave can take part in a disciplinary or grievance investigation or hearing, including if they are under investigation in a disciplinary procedure, have raised a grievance, are a witness at a hearing or are an employee’s companion for a hearing.
They must be participating voluntarily and in line with current public health guidance. Individuals being investigated who have a disability, such as anxiety or a neurodiverse impairment, may require adjustments to the set up or conduct of a video conference. This may require a confidential dialogue about the disability, what the particular disadvantage is and what adjustments are likely to be effective. Failure to make adjustments may result in a valid disability discrimination claim.
There is an increased risk of data protection and confidentiality breaches, particularly where sensitive information can be viewed or printed out at home. Those involved in the investigation must be reminded of their legal duties of confidentiality and be advised as to what home security measures to adopt.
Very often, an employer faced with sensitive allegations, made on a confidential basis, will face a dilemma as to whether they disclose the full detail of the allegations or the mere “gist”. Trawling through emails, instant messages or handwritten notes and organising files of evidence in order to prepare for an investigation meeting and respond to allegations without specifics is not unknown. Doing so without proper access to information could render a process unfair or support an inference of discrimination or victimisation. It may be reasonable to offer technical solutions or allow administrative assistance in more sensitive cases.
How the worker’s statutory right to be accompanied at a disciplinary or grievance hearing can be properly exercised will need to be planned for and solutions found for practical problems such as setting up a private virtual room for the worker and companion for breaks and to confer during the hearing.
A fair virtual hearing
Appropriate technology will need to be installed by all prior to the hearing. If there is a bundle of documents this will need to be circulated in a format which everyone can access and ideally search through electronically, highlight and tag.
The HR representative tasked to advise on procedure will need to be prepared to deal with novel problems. These may include unresolvable technical difficulties, problems with illegible or missing electronic documents and if clarification is required or points raised about information provided by a witness no longer on the video call.
Ground rules will need to be established and guidance given by the chairperson to ensure the proper conduct of the hearing. Key questions include: how and when to communicate, when parties should be on mute, how witnesses are to be called and the order in which submissions will be made.
Implications for litigation
Recorded hearings offer greater opportunity for scrutiny and there will be less scope for factual disputes. Further down the line, in appropriate cases, appeal courts may be more willing to interfere with the first instance decision. What is fair in a virtual setting is likely to be subject of new challenges and employers ought now to review their procedures to ensure they are fit for purpose.