Acas guidance on discipline and grievances during furlough ‘questionable’

Out-Law News | 08 Dec 2020 | 12:27 pm |

Aisleen Pugh tells HRNews why employers may choose to depart from aspects of the Acas guidance

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  • Transcript

    Should you apply the ACAS guidance on disciplinary and grievance proceedings during furlough? That is a question we have been asked a number of times since the furlough scheme was extended at the start of November. The Code, of course, continues to apply during the current crisis and the basic premise is the procedure must be fair and employers should not be tempted to use the pandemic as an excuse to circumvent proper procedures which would run the risk of unfair dismissal claims and an uplift of any compensation by as much as 25%. Back in May, recognising the challenges posed by social distancing and lockdown, Acas published specific guidance on handling procedures during the pandemic and that guidance specifically mentions furloughed employees – but this is where things become unclear. It states that, provided it is done voluntarily and in accordance with current public health guidance, a furloughed employee 'can take part in a disciplinary or grievance investigation or hearing'. There are potentially lots of ways that furloughed employee could be involved, and this was picked up by Personnel Today in an article they ran when this guidance was published. So, for example, that could mean they are involved because they:  

    - are under investigation in a disciplinary procedure
    - have raised a grievance
    - are chairing a disciplinary or grievance hearing
    - are taking notes at a hearing or during an investigation interview
    - are being interviewed as part of an investigation
    - are a witness at a hearing; and
    - are an employee’s companion for a hearing

    So what's the problem? Well the problem is whether a furloughed employee should be involved in the procedure in that way because, whilst on furlough, they are not meant to be providing a service to the employer. So our advice to clients has deviated from the Acas guidance. To explain, on the line, Aisleen Pugh:

    Aisleen Pugh: "Our view is that it's not entirely clear how that Acas guidance sits alongside the HMRC furlough rules because those rules quite unequivocally state that employees must cease all work during furlough and that includes providing services to their employer. What we think is quite important is that it's not necessarily a complete bar on those proceedings going ahead. So where, for example, an employee is facing a disciplinary allegation or they've raised a grievance, they could still attend an investigation for a hearing whilst they're on furlough. That's because, arguably, that participation is in the interests of justice rather than providing any type of service to their employer. Acas also propose that an employee should be asked to agree to their involvement in disciplinary or grievance proceedings on a voluntary basis. Now that seems quite a cautious approach to us and could add an opportunity for disputes and that's particularly so in the context of disciplinary proceedings where we frequently see employees seeking to delay those proceedings, especially when a potential outcome is dismissal. On the flip side, in terms of investigating, chairing or taking notes at a disciplinary or grievance hearing, our view is quite strongly that that would amount to work for the purposes of the furlough rules. So we don't consider that a furloughed employee could undertake those types of activities without breaking furlough. Whether a furloughed employee could attend a hearing as a witness is a slightly different situation and, again, it's one where, arguably, that could be seen to be in the interests of justice rather than, again, providing a service to their employer, but our advice there is generally that that should be viewed on a on a case by case basis.”

    Finally a couple of points to add to that. First, the consequences for employers of getting this wrong are potentially quite serious - payment of the grant for the employee found to be doing work could be withheld or may need to be repaid. Secondly, there are ways to reduce the risk. One way is to use flexible furlough which has been operating since July. The rules allow employees to work some of the week and be furloughed for the rest – so there's scope to use that flexibility and have employees officially working, so not on furlough, when they are involved in the disciplinary or grievance procedure, although remember you will need to get their agreement to that arrangement. Also, you could consider simply delaying the process until furlough is over and quite a few of our clients have chosen that option. Whether you do that will depend on how business critical the procedure is, so that's a judgement call, and also bear in mind the length of the delay because undue delay may be itself be unfair. Overall the risk, we think, is quite low provided you are following the ACAS Code of Practice on Disciplinary and Grievance Procedures and, if it is a remote hearing, you are giving proper consideration to the fairness of how that remote process is conducted. If in doubt on any of those points we suggest you take legal advice.