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Employers should have policies and procedures in place to deal with disciplinary and grievance matters that may arise during the employment relationship. More importantly employers should make sure that those procedures are followed. Failure to adopt a fair procedure when dismissing an employee could amount to unfair dismissal even though there may have been substantive grounds for the dismissal itself.
It is also important that the policies and procedures meet the minimum requirements set out in the ACAS code of practice for disciplinary and grievance matters. An employer who fails to adopt these minimum standards may find an award in the employment tribunal is increased by up to 25%. Given that the maximum award in an unfair dismissal case is 52 weeks wages or £88,519 (whichever is lower) any uplift on an award is severe punishment for those that fail to adopt proper procedures.
This raises the interesting issue of how an employer can complete disciplinary and grievances in accordance with its own procedures, and the ACAS code of practice, during the current pandemic. Employers may have members of staff on furlough who decide to raise a grievance or that may have been the subject of a disciplinary hearing prior to lockdown. Other employers will have members of staff that continue to work which can bring about disciplinary or grievance issues.
Conducting a disciplinary or grievance may cause a conflict for employers between the need to comply with their own procedures and/or the ACAS code of practice – which suggests that investigations and hearings should take place without unreasonable delay – and the need to protect the safety of all employees in these unprecedented times. Whilst I do not consider that an employer would be criticised for delaying a disciplinary hearing, ACAS have sought to assist employers in resolving this conflict by issuing guidance on the handling disciplinary and grievance processes during the coronavirus crisis.