Managing employment issues during and post-pandemic – some considerations

Posted 17/02/2021 : By: Jem Cranfield

It is becoming increasingly clear that restrictions on how we work and live will remain in place for some time as we continue to respond to the impact of Covid-19.  Permanent remote working or blended home and office working is likely to become more widespread.   

In this changed environment, employers will need to give some thought to how they will operate their policies and procedures, as it may no longer be appropriate to conduct these in the same way as before the pandemic.  Furthermore, Employment Tribunals are unlikely to look favourably on employers who use Coronavirus as an excuse to skip stages of their policies or disregard them altogether.  

This article highlights key areas for consideration when following the most common employment policies and procedures, and over the next few weeks, we will be releasing similar guidance which is specific to certain scenarios and employment issues.

General guidance for all meetings or hearings that form part of a policy or process

  • Employers should talk to employees and other attendees about meeting arrangements in advance and should aim to reduce the number of people physically present or plan to hold the meeting remotely, where Government or health guidance remains in force
  • If a remote meeting is being arranged, check that the attendees can all access the software required, and ask them to test their equipment before the meeting begins
  • If the employee has the right to be accompanied to a remote meeting, then ensure their representative can attend and if necessary consider giving more time for practical arrangements to be made
  • Ensure that any evidence or documents to be discussed at the meeting can be seen by all attendees – this might mean checking to ensure that the software you are using allows documents to be displayed, or making sure that information is circulated in advance
  • Consider whether disabled attendees need reasonable adjustments – if the meeting is remote then this might include ensuring that they can access the meeting, see the screen, hear participants etc.  They might also need more frequent breaks or more time to absorb the information if it is not being delivered face-to-face
  • Plan for breaks – video calls can be very draining for everyone so plan for regular breaks during meetings, particularly if they are expected to last for a long time
  • Establish good etiquette at the start of the meeting – for instance, request that attendees mute themselves when they are not speaking, that distractions are kept to a minimum, and that regular checks are made to ensure that everyone can still see and hear each other
  • If you can, conduct the meeting during the employees’ normal working hours, being mindful of any furlough, flexible working or other arrangements that might have been agreed upon over the last few months
  • Wherever possible, webcams should be encouraged to compensate for the lack of face-to-face contact and enable full participation and engagement.  If attendees are reluctant to use their cameras, you could agree that they only have to use them when speaking, or just at the start and end of a meeting.  It is also possible to blur or change the background to a video call on some platforms, which might make attendees more comfortable
  • Be aware of the potential for remote meetings to be recorded without consent.  This is not normally necessary if a notetaker is present or if there is another means of agreeing on what was discussed.  If your policy does not permit meetings to be recorded, you should remind attendees of this at the outset.  If the employee asks for the meeting to be recorded and you grant the request, then ideally the recording should be made by the chairperson and the file should be shared with the attendees afterwards.  You will need to think about how long the recording will be stored and who will have access to it to comply with GDPR legislation.  You could consider transcribing the video after it has been recorded.  Covert recordings may still be admissible in Employment Tribunal claims so employers must take care to run the meeting appropriately in any event
  • In all cases, ensure there is a clear summary at the end of the meeting to confirm what has been discussed and any next steps, to minimise misunderstandings.

Disciplinary and Grievance Processes

  • Employers must not put off dealing with conduct issues or grievances – concerns must be dealt with as soon as they arise to avoid issues escalating, and to ensure that all employees are treated fairly and consistently.  There may be some limited circumstances when employers would choose to delay starting the process, for example if someone is unwell, or does not have the technology or other means to participate.  Employers should seek agreement for any delays, communicate the reasons clearly, and aim to keep timescales short
  • The Government has not provided any specific guidance about whether employees on furlough can take part in disciplinary or grievance meetings/investigations.  Employers should be cautious about this because they risk having to repay the furlough grant if the employee is deemed to have “provided services for your organisation” which could reasonably include participation in these meetings.  We recommend taking employees off furlough for the period of time that you need them to participate
  • Where an investigation is required, the investigator should think about how they will gather evidence and who they will need to speak to, bearing in mind that some office locations may be closed and witnesses may be furloughed or working flexibly.  It may be necessary to allow more time for an investigation to be completed for these reasons, although long delays should be avoided
  • When planning meetings and sending remote invitations, double-check that invitations are sent to the right people, and that there is a mechanism to ensure that only people with the authority to join the meeting can do so – Microsoft Teams, for example, offers a ‘lobby’ feature which allows the person leading the meeting to admit attendees one by one
  • Ensure that there is a way for separate discussions to take place if needed, for example between an employee and their representative during an adjournment.  
  • Investigators or those chairing meetings remotely should ensure they project a positive image of the employer at all times and should avoid dressing informally unless this is part of the workplace culture
  • Employers should consider employee wellbeing when delivering the outcome of disciplinary or grievance processes, as employees may be completely alone after the meeting has ended.  If the employer has concerns about an employee’s wellbeing, they might consider making less formal contact after the meeting to check on their welfare, or could consider signposting them to other sources of support which might include an Employee Assistance Programme or Occupational Health provider, if there is one 

Check back next week for Capability Issues.

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