Can we ask people to participate in a disciplinary or grievance meeting during furlough?

ACAS has published guidance on the conduct of disciplinary and grievance procedures during the COVID-19 pandemic which emphasises that normal employment law principles and the normal ACAS guidance in their Code of Practice, continue to apply. This means that an employer has to decide if it would be fair and reasonable to start or continue a disciplinary or grievance procedure whilst an employee is furloughed, social distancing and other public health guidelines are being followed, or when an employee is working from home as a result of the crisis.

It states that as long as it is voluntary to do so, an employee could participate in an investigation or a hearing either as the subject of the proceedings, the chair or notetaker, or as witness or companion under the statutory ‘right to be accompanied’.   

Firstly, this is interesting because, how many people invited to a disciplinary hearing would say they are voluntarily attending?  ACAS say an individual must be “doing it out of their own choice”.  This will undoubtedly lead to trade union reps advising their members to say they don’t choose to co-operate ….

The one thing to note about this is that it doesn’t appear to take into account the Treasury direction to HMRC which requires employees to cease all work during furlough.  We will have a debate about what amounts to “work” or not.  Case law on working time talks very much about an employee being at their employer’s disposal and not free to pursue their own activities.  You could also take a narrower view of work and emphasise that, in the capacity of an investigator, meeting chair person or notetaker, is not actually enabling the employer to deliver services or earn revenue, so employers are still not 100% clear on whether or not they are risking not being able to claim reimbursement of an employee’s wages in the Coronavirus Job Retention Scheme.  I would have thought that HMRC would be following the Treasury direction and its own guidance rather than anything published by ACAS?

Incidentally, the guidance has been updated at gov.uk to reflect the fact that elected representatives can participate in redundancy consultation for the purposes of Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 during furlough.

Refreshing Law Limited

12 May 2020