Dusting off disciplinary procedures post Covid

The last 18 months have seen employers turn on a dime to keep their business on track, while guarding the health and wellbeing of staff and customers.  While flexibility has been key, it has also been important to update and comply with frequently changing health and safety policies.

‘However, many companies have struggled financially and in order to get their business back on track there will be a keen focus on performance and productivity,’ says Gillian Reid, a Solicitor in the employment team with Ware & Kay.

With the future of the business at stake, managers may not be able to be quite so lenient with staff if targets are not being met and may need to dust off their disciplinary and performance management procedures.  As Covid restrictions loosen in different ways in different sectors, then employers will also need to keep on their toes as they manage Covid-related health and safety compliance.

Managing the covid risk in the workplace

Since the removal in July of most legal restrictions, employers are required to make their own informed decisions about managing coronavirus risks. Many employers are likely to keep Covid-secure measures in place for some time, but employers may find that compliance begins to drop off among certain employees.

Employers will need to review measures regularly to assess if these are still a proportionate response to the identified health and safety risks. 

Where the measures are proportionate, employers may be able to sanction employees who refuse to comply under the disciplinary process. To do so fairly, employers need to have made the measures clear to employees.

Managers must lead their teams by demonstrating compliance to avoid morale being eroded by a ‘one rule for us, another rule for them’ approach. Employment tribunals may also consider that this sends mixed messages and undermines the fairness of disciplinary sanctions.  Similarly, if colleagues are treated inconsistently then an employment tribunal may find that the sanction is unfair. 

Can you insist on vaccination?

Some time ago, the press covered employers announcing their ‘no jab, no job’ policy. Outside of sectors like health and social care, it would be highly risky to discipline or dismiss an employee who refused to be vaccinated. However, it may be possible to insist on this during the recruitment process. Speak to us first, as there is a raft of legal considerations, including data protection, restrictions on asking health-related questions in recruitment, human rights, and discrimination.

Keeping customers happy

It may be fair to discipline an employee for breaching your customer’s rules. In our recent case round up, we reported that an employment tribunal found that it was fair for an employer to dismiss an employee for failing to wear a mask at their client’s premises, in breach of the client’s site rules (Kubilius v Kent Foods Ltd [2020]).

Capability or conduct

If you are having a problem with a particular member of staff, you will need to be clear at the outset whether the problem arises from a conduct issue or is due to capability.

For example, if someone has returned to work with long-Covid and is unable to perform the same workload that they previously undertook, then this is an issue of ill health and capability, and you should not use a disciplinary process.

As a rule of thumb, it comes down to the employee’s control; if they are capable of doing their job properly but have not done so, it is more likely to be a conduct issue. or example, if a member of staff is refusing to return to the office without good reason.

The basics of a fair disciplinary process

Following an unfair process can make a dismissal unfair, even if you had a sound, legal reason for the dismissal. The Acas Code of Practice on disciplinary and grievance procedures sets out the minimum procedure you will need to follow, and the Acas Guide on discipline and grievances at work provides helpful detail. You should also follow your own disciplinary process if you have one.

What happens if we get it wrong?

If the employee has worked for you for at least two years, they could bring a claim of unfair dismissal in the employment tribunal. Employees with two years’ employment can also resign in response to an unfair process and claim constructive unfair dismissal. If you fail to follow the minimum requirements of the Acas Code of Practice on disciplinary and grievance procedures, the employment tribunal may increase any compensation to the employee by up to 25%.

Employees with less than two years’ employment who can show that they were treated unfairly due to a protected characteristic, such as a disability or their ethnicity, may be able to succeed in a discrimination claim. This is a right from day one of employment.

Tips for getting it right

• Having established that the disciplinary process applies, make sure your allegations are clear and sufficiently detailed, so that the employee understands the case against them.
• Keep a more senior manager or chair of the company out of the earlier stages of the process so that they can hear any appeal.
• Where possible, ensure managers have the time and skills to deal properly and promptly with the process.
• Be careful about suspending the employee. This is only appropriate if the allegation is of serious misconduct and a tribunal would consider it reasonable, for example because of a potential threat to other employees if they remain at work.
• Sometimes at the disciplinary meeting it becomes apparent that a potentially significant issue needs to be investigated further. Consider postponing the meeting to obtain this information.
• Be alert to any potential disabilities that may have contributed to the employee’s actions. We can advise you on this sensitive area.
• In deciding the sanction, try to be consistent with similar past disciplinary action.
• Finally, make sure your reasons are clear if you impose a disciplinary sanction, for instance, in the outcome letter explain why you preferred one version of events over the other.

As with any disciplinary, you need to carefully consider the employee’s explanation before deciding on the sanction. The appropriate level of sanction will depend on the seriousness of the non-compliance given the nature of the employee’s role. We strongly recommend speaking to us before deciding on the disciplinary sanction.

How we can help

Employers are responsible for their employees’ health and safety at work, and it may be necessary to discipline employees who breach Covid-secure measures to meet this duty. We can help you ensure that it is safe for you to discipline. Please contact Gillian Reid in the employment team on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email gillian.reid@warekay.co.uk