With remote working now standard practice across the economy, employers have had to adapt ways of working to accommodate the new normal. This raises specific workforce management issues, such as if and how disciplinary and grievance hearings can be conducted remotely.
The law on HR hearings
For employers, it is a matter of ensuring any HR hearing is both fair to the employee and reduces the risk of legal action.
The leading case in this area is Khanum v Mid Glamorgan Area Health Authority, which set out the key requirements for lawful disciplinary hearings. First, the individual must be informed of the allegations being made against them. They have to be given the opportunity to put their own case forward in response to the allegations. Finally, the panel leading the hearing must act in good faith.
Regardless of how the hearing is conducted, the ACAS Code of Practice for disciplinary and grievance procedures continues to apply. The Code stresses the requirement for employers of all sizes and resources to act fairly and observe the standards of reasonable behaviour it sets out.
As such, it becomes a matter of considering each case on its own circumstances to determine whether it is appropriate to conduct the hearing remotely, and if so, how this can be done in a lawful and compliant manner.
Importantly, the employer is under a duty to deal with disciplinary and grievance issues promptly and avoid unnecessary delays. Since delays can allow relatively minor issues to escalate, an employer’s failure to deal promptly with a matter in line with the ACAS Code may lead to an uplift of up to 25% in any resulting Employment Tribunal award.
Is a remote hearing appropriate?
In theory, face-to-face HR hearings are preferable since they avoid the potential for technical hitches and they allow for the parties to benefit from being able to read body language and eye contact. However, this may not always be possible, in particular, if a face-to-face hearing would result in unnecessary delays in the proceedings.
When considering if a remote hearing would be appropriate, the employer should primarily look at the working arrangement of the individual who is subject to the hearing.
Where an employee is working remotely on a full-time basis, it would be reasonable for the hearing to also take place remotely.
For workers who are physically present in the working environment, even on a part-time basis under a hybrid arrangement, it would usually be advisable to proceed with a hearing face-to-face. Where another individual involved in the procedure cannot attend in person, such as the HR representative or the individual’s accompanying person, it would be reasonable for arrangements to be made for them to join remotely by video.
Practical concerns for HR of remote disciplinary & grievance hearings
Conducting a hearing online will demand a full consideration of the practicalities and potential limitations compared with postponing a hearing or requiring all parties to physically attend a meeting.
Remote hearings should be conducted via secure video conferencing. It is generally not advisable to proceed by audio only. This is because it is important for all the parties to see who is present, and also, to allow for participants to pick up on body language and emotional responses as part of what can often be difficult or emotional exchanges.
Whatever technology provider your organisation uses, you should make sure it is accessible to all the parties to the call in advance.
Remote hearings & reasonable adjustments
The employer’s duty to make reasonable adjustments to accommodate the needs of a person with a qualifying disability still applies to remote hearings.
It will be important to consider requests for reasonable adjustments to avoid allegations of unlawful disability discrimination. As such, the decision to hold a remote hearing may well itself be a reasonable adjustment, while in other circumstances, a video conference may not be appropriate due to the individual’s disability.
As with face-to-face hearings, you must make sure that relevant documents are circulated to all parties in good time and via a secure method. If documents are to be sent by post, make sure you check with the employee and other parties where the documents should be sent, as it may not be their normal home address. You should also consider how documents will be accessed during the meeting. For example, most video conference software includes the facility to view documents collectively during the meeting.
Recording remote HR hearings
It may be advisable to record the video conference, but there are considerations to take into account. If the hearing were to be held as normal in your workplace you should consult your own procedures to see whether they would allow it to be recorded, by either the employer or employee. If it would not, then there needs to be a particular reason why the remote hearing is recorded, and you need to seek your employee’s agreement to such a variation to the disciplinary and grievance procedures. In addition, it is imperative that in advance you seek each attendee’s permission to record the hearing and ask them to re-affirm their permission at the start of the video. If you wait until the beginning of the meeting to seek permission the employee may feel pressured to agree and then regret this later and make a complaint.
If you are worried that your employee will make a covert recording of the hearing then you should explain in advance that this is not allowed. If your disciplinary and grievance procedures already disallow covert recordings then you can refer your employee to the relevant provision in the document. It is advisable to ask the individual to confirm at the start of the hearing that they are alone and are not recording the hearing.
In relation to making and storing the recording, you must make sure that you comply with relevant data protection legislation. Your organisation should already have procedures in place to support this, but be careful where you are storing things if you are working from home.
Regardless of whether the hearing is recorded or not, the employer should have someone joining the hearing specifically to take contemporaneous notes of the discussion.
Remote hearings & the right to be accompanied
As with disciplinary and grievance hearings conducted in person at the workplace, employees have a statutory right to be accompanied to these meetings by a colleague or trade union representative. However, there are some additional considerations:
- whichever technology provider you choose, the representative must be able to put and sum up the employee’s case, confer privately with the employee and respond on behalf of the employee to any views expressed at the meeting. It may be simplest to allow the employee and their representative simply to leave the meeting to confer, but they should have a link or similar in order that they can rejoin the meeting quickly and easily; and
- some employers allow representatives or companions to attend investigatory meetings too, although they do not have to do this. You should consider whether to allow the employee to be accompanied to a remote investigatory meeting in order to try to avoid any complaint later of procedural unfairness.
ACAS Code compliance
HR hearings form part of a fair and lawful disciplinary or grievance process, meaning a remote meeting may, in the circumstances, be necessary to manage legal risk and help resolve the issue in a timely manner.
DavidsonMorris’ employment lawyers can help with all aspects of workforce management issues, including advice on resolving workplace disputes through fair and lawful disciplinary and grievance procedures. Working closely with our specialists in HR, we can provide complete guidance covering both the legal and HR aspects of remote dispute resolution processes. For help and advice, speak to our experts.
Remote HR hearings FAQs
Can you conduct a disciplinary remotely?
Disciplinary hearings can be conducted remotely, but the employer must ensure they continue to comply with the ACAS code.
Does the right to be accompanied still apply for remote hearings?
Yes the right to be accompanied still applies if the hearing is being held remotely. The representative must be able to attend the remote hearing, and the technology used must enable the representative to put and sum up the employee’s case, confer privately with the employee and respond to views expressed in the hearing on behalf of the employee.
How much notice do I have to give for a remote grievance hearing?
There is no statutory notice period for a grievance hearing although ACAS states that the employer should aim to hold a meeting with the employee within 5 working days of them raising a formal grievance. If an employee requests a postponement, for example, due to childcare responsibilities or to arrange the attendance of a representative you should look at these requests carefully, and with a mind to accommodate them.
Last updated: 7 June 2023