27 Apr Remote Disciplinary & Grievance Hearings

As Covid -19 ongoing restrictions mean that normal work place attendance may not resume in the near future for a lot of organisations, it is clear that the standard face to face meeting format for a range of typical workplace situations, such as grievance and disciplinary hearings will not be available for some time. It is also notable that the Supreme Court held it’s first sitting ever via remote video technology last week, and the Workplace Relations Commission has published a consultation paper on conducing hearings remotely and by written submissions. So how can these meetings be managed and what are the pitfalls?

Firstly, it is inevitable that standard workplace issues are still coming up, with a mix of remote and normal workplace attendance still taking place. This can be a performance, attendance or misconduct matter that needs to be dealt with, a probationary review meeting that is due, or an employee has raised a grievance or perhaps a bullying and harassment complaint. And whilst there may be some instances that allow the review of an issue to be put on hold, it is important that due consideration is given to progressing any required investigation/meetings remotely, to ensure that grievances don’t escalate unnecessarily or that parties who have raised a complaint or are the subject of a complaint, have the opportunity to have matters dealt with efficiently and not left hanging over them. In this regard at all times, notwithstanding that a process may be conducted remotely, it is critical that employees who are involved as either a Respondent or Complainant, are still fully afforded their rights to natural justice to include:

• Notification of allegations/complaint in writing;
• Opportunity to respond, make representations and to see relevant evidence;
• Right To Be Accompanied At Meetings;
• Confirmation of Outcomes in Writing;
• Right To Appeal.

The main obstacle to overcome, is likely to be in respect of the actual hearing/meeting not being face to face, and an employee not being accompanied directly, and to make sure that an employee has had adequate opportunity to respond/present their case with required support. A standard telephone call/audio option is unlikely to be adequate nor will be the submission of written documents only as the primary response/presentation, and particularly from the point of view of the person investigating/conducting the meeting, due to the need to seek necessary clarifications, probe responses and observe body language, reactions and behaviour etc. In addition, audio only will not show visibility of whether anyone else is in the room, who should not be there or who may be prompting responses.

A video call involving an employee’s representative is therefore the best alternative option, which should be set up exactly the same way a face to face meeting would have been, with adequate notice and notification in writing of allegations/issues etc under review. Notification of a remote meeting should also point out the necessary variation on operation of the relevant policy, in the interests of progressing matters as normally as possible for all relevant parties, rather than waiting for a return to face to face meetings, which may be some time away.

With regard to remote meetings, there are a number of specific considerations and risks that will need to be addressed in advance;

• Firstly, a secure platform that all parties can use will be required, and in this regard a test run may be advisable depending on how comfortable individuals are with this technology, with the link sent out in advance to the parties.
• A private setting that other members of a household cannot overhear the meeting will also be required to safeguard the privacy rights of anyone who maybe referenced.
• Meeting rules or structure should be outlined in advance as to how the meeting will run, how representatives can participate in the meeting, speaking order etc and should guide for example, how a private conferring can take place between an employee and their representative, by perhaps allowing them to leave the meeting and re-join.
• Whilst it will of course be easier for employees now to potentially record meetings undetected, normal rules in respect of the recording of meetings should be specified as part of the meeting arrangements or in the Terms of Reference, and it should be indicated that any breach may result in disciplinary action being taken.
• If the investigator wishes to record the meeting for note taking purposes, this should also be spelt out in advance and consent obtained. The purpose of recording and a statement that the recording will only be used for this purpose and then deleted should be issued.

All evidence should be issued in good time for review, and in the event that there is any issue with being able to access evidence available in the workplace, or that it can’t be sent electronically, this must be considered, as must whether key witnesses can be available for interview remotely. This may mean the conclusion of an investigation/process is delayed, and at all times any such delays and related impact must be clearly noted and communicated to parties.

In some instances, however, subject to the subject matter under review and it’s potential seriousness, it may of course be possible to defer. In this case an employee’s agreement should be sought, rather than imposing a decision on them, and they should be kept informed. However, being mindful of the uncertainty as to when employees will be back in their workplace, it may still necessitate an imposed intervention to progress matters. There will of course be situations where employees may want to delay processes being commenced until they return to work, and sometimes for tactical reasons. Each situation should be reviewed on a case by case basis, and a balanced approach taken to meeting everyone’s interests including the Complainant, Respondent, Employer, other interested parties, Policy issues etc.

If you would like any assistance with handling grievances or disciplinary issues remotely, please feel free to contact Carmel Murphy on (071) 9642748 or email info@hrsolutions.ie.