What adjustments to ongoing internal procedures such as disciplinary or capability processes should employers make for time staff spend on furlough leave?

Many disciplinary, grievance, and poor performance processes commenced before the furlough leave scheme’s introduction may have been paused, or delayed, because some or all staff were placed on furlough leave.

In May 2020, Acas published guidance titled Disciplinary and grievance procedures during the coronavirus pandemic which states that existing employment law and the Acas Code of Practice on Disciplinary and Grievance Procedures (Acas Code) still apply during the COVID-19 pandemic. The guidance states that it is for the employer to determine if it would be fair and reasonable to start or continue with a disciplinary or grievance procedure while an employee is furloughed, social distancing and other public health guidelines are being followed, or an employee is working from home. It outlines some practical guidance that employers can take, depending on whether a workplace is open or not.

Employers will need to be careful to avoid any unnecessary delays which may give rise to claims such as constructive dismissal. Where delay is unavoidable, an employer should keep evidence of the reason for the delay and keep the employee updated on the process and reasons for delay.

Even when an employee who is subject to the procedure has returned from furlough leave, other key members of staff, for example, an investigator or witness, may still be furloughed which could cause further delay. In these circumstances, an employer should consider whether those on furlough leave can remain involved in the process without it falling under the definition of “work”. If it is deemed to be work, the employer will be unable to claim under the Coronavirus Job Retention Scheme. If it is deemed to be work and the employer wishes for them to remain furloughed, that member of staff will need to be substituted for an employee who has not been placed on furlough leave to avoid further delay if that is possible depending upon their role in the process.

Disciplinary procedures should be completed as soon as possible taking into account the particular circumstances in accordance with the Acas Code. Where an employee has been suspended from work pending a disciplinary investigation, the employer will need to keep this decision under review and decide whether the suspension should remain in place or whether the employee could work from home, or return to the workplace if others are working from home.

Poor performance/capability processes should be reviewed when an employee returns to work where they were in progress before the employee was placed on furlough leave.  An employer will need to review any current performance targets and increase the timescale for improvement to take account of the time that the employee has spent on furlough leave or any alterations in circumstances such as home working whilst managing childcare or reduced hours.

Employers will need to be mindful of any time an employee has spent on furlough leave when conducting performance reviews and redundancy selection criteria to avoid any unfair treatment.

If you require any advice on furlough leave or internal procedures such as disciplinary, poor performance and sickness absence or any other employment law matter, please contact Farleys’ employment law team on 0845 287 0939 or contact us by email.