While more and more businesses are starting up their operations, the reality is many are still prevented from trading during level 4 lockdown. As far as possible, companies have taken to continuing to operate by having their employees work remotely. When an employee works remotely, the employment relationship is still very much ongoing, and employees remain subject to certain standards of behaviour. It is unfortunately a reality that, during this time, some employees will be suspected of committing forms of misconduct and a disciplinary hearing will need to be convened. Where staff are working remotely, the entire hearing process will need to be done electronically. These are our tips on how best to achieve fairness and still be “corona-friendly”.
THE HEARING PROCESS
Issuing the notice
An employee is entitled to a notice of hearing which clearly details the allegations/charges to which he or she will need to answer, and which specifies his or her rights in the process. We suggest that the employer schedules a video call (or normal call if video is not possible) and explains what is being sent to the employee via email (i.e. the notice). It would be preferable to send the notice to the employee while you are on the call so that the employee can confirm receipt and can ask any questions.
Ordinarily, the rule of thumb was that this should take place at least two full working days before the hearing takes place. In light of the limitations of the lockdown, in some cases this period may need to be longer. We just recommend exercising discretion as to whether the period given will provide the employee with enough notice to prepare a defence. The employee will require time to obtain documents and evidence for the hearing, and potentially to consult with a fellow employee to represent him or her (this may be limited or slowed by what access the employee has to documents and colleagues remotely).
Conducting the hearing
The hearing must take place via video conference. This is extremely important that all parties can see one another. For this purpose, it is necessary to ensure that all involved in the hearing have access to sufficiently fast internet and some form of electronic device (such as computer, tablet, or mobile phone). Where an employee does not normally have access to these facilities, the employer will need to provide access in order to convene the hearing remotely. The alternative if these facilities cannot be arranged would be to postpone the hearing until the parties can meet in person. However, given that couriers are fully functional under level 4 lockdown, it should be feasible to provide an employee with data to ensure sufficient internet access and speed.
Shortly before the hearing is to commence, the employer should send the appointed independent chairperson and the employee a link to the video conference platform the employer wishes to use. At the scheduled time, all parties should dial into the call. From here, the chairperson will guide the process and hearing will run in a relatively similar manner to a normal hearing. Witnesses can also be added to the call as and when appropriate in the process.
One aspect to bear in mind is the documentary evidence bundle of each side. The easiest way to do this would be to compile a hardcopy version of the bundle and scan it. A softcopy can then be sent via email to all involved at the commencement of the hearing. However, most of us do not have access to printers and scanners at home. The alternative that we suggest is utilising google docs. The idea behind this is that you can turn any piece of evidence into a google doc by copying across the content. Thereafter, you can compile a timeline of events (your version of the facts) and you can insert the appropriate link to each respective google doc as you go. This allows you to send the parties one document, but this document gives the reader access to each item of supporting evidence by clicking on the appropriate links provided. Essentially, enabling you to collate and compile in a logical format, despite having numerous separate documents.
Things to watch out for
A chairperson conducting a hearing via video conference should be vigilant in terms of being able to see all the parties and hear the evidence. Body language is more important than persons may realise in determining a witness’s credibility. If the chairperson feels that information is being lost due to poor connectivity, the chairperson may need to consider postponing the matter. Further to this, it may be necessary to ask the parties involved to sit back from their laptop. This will somewhat assist the chairperson to know whether other persons are in the room and whether testimony is being interfered with.
Issuing the outcome
The chairperson should send their recommendation report to the employer as per normal. The employer then deliberates and makes a decision whether or not to follow the recommendation. Once the employer has decided on the way forward, the employee should be provided with the decision and the report. While this does not need to be done “in person”, we would recommend this if possible. Therefore, another video call will suffice to issue the outcome. If this is not possible, the important aspect with issuing an outcome is that the decision is clearly communicated, and the employee understands the reasons for the decision taken.
THE SHOW MUST GO ON
These are uncertain and unusual times, but we must not forget that our obligations as employees and employers remain. Employees must continue to adhere to the standards of conduct required by their employer. Where an employee does commit misconduct, the employer should still address this timeously and not wait until lockdown has been lifted unless conducting a hearing remotely is simply not feasible. This can be judged on a case-by-case basis. We would recommend seeking advice as to whether you are able to convene a corona-friendly remote hearing in your particular circumstances – we are able to assist with any hearing-related compliance.