Can an employer continue with disciplinary and grievance proceedings while an employee is on furlough?

Acas recently published guidance on how to deal with Disciplinary and grievance procedures during the coronavirus pandemic.

The guidance notes that it is for an employer to decide if it would be fair and reasonable to carry on with, or start, a disciplinary or grievance procedure while an employee is furloughed. It suggests some practical measures that employers can take, depending on whether a workplace is open or not. The guidance expressly states that, for most disciplinary and grievance meetings held by video, there will be no reason to record the meeting.

The guidance states that a furloughed employee can take part in a disciplinary or grievance investigation or hearing as:

• The subject of proceedings (it expressly mentions employees who raise a grievance or are under investigation in a disciplinary procedure, which is presumably intended to catch attendance at a disciplinary hearing as well as an investigation meeting).
• A chairperson or notetaker.
• An interviewee or witness.
• A companion.

However, the guidance provides that the participation must be voluntary (an individual must be "doing it out of their own choice") and take place in accordance with current public health guidance.

It is unclear how the Acas guidance can be read compatibly with the HMRC guidance and the Treasury directions which make it a condition for accessing the CJRS that furloughed employees cease all work in relation to their employment during furlough. The Employers' CJRS guidance states that a furloughed employee cannot provide services to the employer during furlough.

There is a strong argument that acting as an investigator, meeting chairperson, notetaker or even potentially a witness could amount to "work" for the purposes of the Treasury directions. Where employees are requested or voluntarily  participate in a disciplinary or grievance investigation or hearing they are usually doing so as part of their role, and it is difficult to see how they could not be regarded as providing a service to the employer by performing those duties.

Accordingly, following the Acas guidance could mean that an employer is unable to claim for reimbursement of an employee's wages under the CJRS and employers should exercise caution in relying upon this aspect of it.

Click here to read the ACAS guidance in full.