Conducting virtual meetings in a virtual workplace – thoughts on handling formal processes remotely
In this new world of remote working, one of many challenges has been how to conduct formal meetings with employees, such as disciplinary and grievance meetings, or redundancy consultations when the workforce is not on work premises. The current uncertainty as to when many workplaces will be able to return to normal means that reasonable alternatives need to be considered, in order to avoid intolerable delays to carrying out processes in person. Meetings being held online is one possible means of enabling the process to continue but the video conferencing of formal meetings does bring both advantages and disadvantages for all involved.
ACAS has recently published guidance https://www.acas.org.uk/disciplinary-grievance-procedures-during-coronavirus for employers on handling disciplinary and grievance procedures during the coronavirus pandemic. Whilst the guidance is more cautious than we think is strictly necessary in many cases, it is a useful starting point when planning a meeting online. The guidance cautions employers to consider whether it would still be fair and reasonable to carry on with or start a disciplinary or grievance procedure while:
- people are on temporary leave because of coronavirus (on ‘furlough’);
- following social distancing and other public health guidelines, if they’re in the workplace; and
- people are working from home, meaning it would have to be carried out remotely.
ACAS’ advice is that the employer should first consider if a virtual hearing can be done in a fair way, advising employers to consider whether:
- everyone involved has access to the technology needed for video meetings, such as a laptop/pc and internet connection;
- anyone involved has any disability or other accessibility issues that might affect their ability to use video technology, and whether any reasonable adjustments might be needed;
- any witness statements or other evidence can be seen clearly by everyone involved during the hearing;
- it will be possible to fairly assess and question evidence given by people interviewed in a video meeting;
- it’s possible to get hold of all the evidence needed for the investigation or hearing, for example records or files that are kept in the office; and
- it’s possible for the person under a disciplinary investigation or who raised a grievance to be accompanied during the hearing.
Overall, whilst the ACAS guidance is applies to disciplinary and grievance procedures we consider it to be best practice advice for consultation meetings too. Bear in mind as well that some parts of the guidance may be a little more cautious than the law actually requires.
In some instances, employers may have no choice but to proceed with disciplinary matters during this difficult period, especially if the allegation amounts to gross misconduct. From a legal perspective, natural justice requires the employer to establish that:
- the employee understands the allegation that’s been made against them,
- they’ve had a reasonable opportunity to responding to that allegation,
- their response is considered in good faith by an impartial hearing,
- that there’s an impartial decision-making process applied to what they’ve said.
Additional factors to consider include:
- if they are working from home and have childcare responsibilities, does the employee have sufficient time and opportunity to take on board the allegations and respond to them, especially if they have childcare responsibilities?
- Will they be able to participate effectively without distractions?
- Will they be able to achieve sufficient privacy for the meeting to be held if they share accommodation with others, for example?
Right to be accompanied
ACAS has also highlighted one area which could prove difficult, which is whether the employee has access to potential colleagues in order to ask them to be their representative. If everyone is working from home, is there a way for the employee to contact colleagues? This may well be more straightforward if they’re a member of a union and the union can assist with this. Otherwise, the employer may need to take greater care than usual that the employee has the opportunity to make contact with potential companions, or even suggest a suitably objective candidate if the employee has no other options. Generally speaking, it’s entirely the employee’s responsibility to obtain the representation or to persuade a colleague to accompany them to a meeting, but perhaps in this difficult context employers will be able to assist to a greater extent to ensure fairness, to enable the employee to participate as effectively as possible and assist with the smooth-running of the meeting.
Conversely, employers will have limited ability to control participation in the meeting of others who would not normally be permitted. It would be of no great surprise if a family member is in attendance and while, the employer would be able to ask that the meeting is restricted to the usual participants, a view may have to be taken in each case as to whether to require a ‘closed’ meeting and this potential further delay to the process, or to take a more flexible approach if the objective of the meeting can still be achieved.
A dress rehearsal
A run-through of the meeting in advance makes even more sense than usual, to ensure that you are prepared for all eventualities. Timings, scripts and likely outcomes which are rehearsed in advance of the formal meeting will all help for much smoother running. The technology obviously needs to be working for all the participants and a back-up plan, such as moving to an audio-only conference may also be necessary. The person chairing the meeting needs to be familiar with the platform, with a firm grasp of how to put participants on ‘mute’, how they can confer privately and how to share documents.
As part of the preparation, a set of ground rules sent out in advance to all participants is helpful. Depending on the platform being used, provision for asking questions, clarifications and dealing with unexpected interruptions should be considered.
Finally, allow plenty of time for the meeting. Given the challenges of dealing with sometimes emotional subjects, unreliable technology and domestic interruptions, allow twice as long as you would normally block out of your diary for such a meeting. Do be realistic about the amount of time which people can concentrate on a video call and manage the time robustly, but allow for breaks and adjournments if appropriate.