HR Helpdesk – Carrying out Disciplinary Procedures with Remote Working Employees
Date published on: 01/10/2020
Remote working is currently presenting practical challenges for many Organisations in carrying out Disciplinary Procedures with Employees.
It is particularly important that Employers act reasonably and conduct a fair process remotely as the principles of natural justice must be adhered to equally in the context of remote working as in a normal working environment. However, there are additional factors that may need to be considered and challenges that may arise during a remote disciplinary process which Employers need to be mindful of. These are reviewed further below. A key starting point for any process is to clearly understand whether it is an investigation, the outcome of which may result in a disciplinary hearing and potential disciplinary sanction (the recommended process, particularly for more serious or complex matters), or if it is a disciplinary hearing.
The Principles of Natural Justice
Employees should always be provided with the specific allegations against them in writing and given a copy of any evidence to be utilised. Where there are witness statements, or there is evidence gathered in the disciplinary process, this must also be provided to the Employee in advance of the disciplinary investigation or hearing, to afford the Employee the opportunity to respond to these during the process.
Before commencing the remote disciplinary investigation or hearing, an Employer should firstly review their current disciplinary policy and procedure to ensure they adhere to it. Other factors which may need to be considered are whether all parties to the disciplinary process are available and have the means to participate in the process and whether there are any limitations to the procedure being undertaken remotely.
Terms of Reference – Investigation
The Terms of Reference set out the issues, objectives and scope of the investigation and should be clear and concise. The Terms of Reference should be designed to fit the allegation(s) which has arose and they should consider the following:
Core issue(s) which need to be addressed in the investigation,
The investigator’s role and responsibilities and the procedure to be followed,
Overall timeframe and interim deadlines,
Identifying the task involved and expected outputs (fact finding report).
It is recommended that the terms of reference highlight the importance of confidentiality while attending a hearing remotely. Where an Employee seeks to delay the process because of it being conducted remotely, allocate specific timeframe to give multiple choices to continue with the proposed meeting. Ensure the Employee is afforded an opportunity to be represented at the hearing. The terms of reference should reference the system / technology used and whether a recording of the meetings will be conducted/permitted. Finally, it would be advisable to outline that because the investigation is carried out remotely, any party can raise concerns at any stage.
A secure system / software should be used to ensure confidentiality is maintained, and it should be a platform which all relevant parties have access to.
We recommend using a video conferencing system, rather than simply audio to ensure confidentiality and for a better engagement with the Employee.Given that a lot of technology has facilitation for recording, it is recommended that all parties are informed, and permission is sought for recording if not included in the terms of reference. If the meeting is interrupted due to poor connection or other technology issue, pause and reconvene when the issues are resolved.
Employers must also consider whether the Employee involved has a disability that might affect their ability to use the technology and put in place any reasonable adjustments to assist the Employee during the disciplinary process.
Evidence Pertaining to the Process
Provision of evidence and paper trail apply to a remote disciplinary process as it would in a normal working environment. All parties should be provided a copy of the relevant evidence and documentation prior to the investigation meeting or hearing taking place and the Employee should be afforded an opportunity to respond to any evidence as part of the process, and to present any other relevant factors including any mitigating circumstances. A secure platform should be used to share the documents pertaining to the process. The "share screen" function can be used when the evidence is reviewed during the meeting.
The Right of Representation
All parties required to attend virtual meetings should be offered the right to be accompanied by a representative. To this end, Employers should ensure that the Employee’s representative is available and has access to the platform via which the process is carried out. Consultation between the Employee and their representative should be facilitated if required.
To ensure that the process is robust and fair, Employers should take measures by adhering to the natural justice and record the Employee’s agreement to proceed with a remote disciplinary process. This will assist in the event the Employee claims the process was unfair because it had to be conducted remotely. Employees should be provided the opportunity to give feedback and raise any concerns at every stage of the process conducted remotely.
For queries or support in relation to a remote disciplinary process, contact the experienced team at Adare Human Resource Management – firstname.lastname@example.org