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Disciplinary, grievance and consultation meetings during furlough

View profile for Julie Temple
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HMRC guidance issued on 30 April 2020 relating to the Coronavirus Job Retention Scheme (or CJRS, or the furlough scheme) clarified that employees on furlough (acting as representatives or companions) can carry out their duties and activities as a companion and this is not work for the purposes of furlough. This is the case provided they do not provide services to or generate revenue for, or on behalf of, their organisation or a linked or associated organisation.

This clarified the position for the companion, but not for the employee themselves (or indeed the position for others who would need to attend). By analogy, it seems the employee the companion is attending with would be able to attend and wouldn’t break furlough if they also do not provide services to or generate revenue for, or on behalf of, their organisation or a linked or associated organisation.

ACAS published guidance on 6 May 2020 dealing with disciplinary and grievance procedures during the coronavirus pandemic. You can read it at: https://www.acas.org.uk/disciplinary-grievance-procedures-during-coronavirus

It poses a question for employers: if the procedures continue, will they be fair and reasonable given some employees are on furlough, social distancing or isolating, or working from home?

This implies (as you might expect) in some circumstances, they will not be and goes on to consider factors to take into account.

It continues that an employee on furlough can take part in a disciplinary or grievance investigation or hearing.

It lists possible roles that are acceptable for employees during furlough: under investigation in a disciplinary procedure, raised a grievance, interviewed as part of an investigation, witnesses at a hearing or an employee’s companion for a hearing.

So far so good, and I think this is consistent with the HMRC guidance.

However, the ACAS guidance also says chairing a disciplinary or grievance hearing and taking notes at a hearing or during an investigation interview would not break furlough either.

All roles are subject to the condition that the employee is acting voluntarily and the meeting is carried out in line with current public health guidance.

It is not clear to what extent the ACAS guidance has been agreed or discussed with HMRC in the context of furlough and the CJRS scheme. I think a chair or notetaker (and certainly any investigator) might break furlough even if they are acting voluntarily (and how many would choose to do so voluntarily?) as they are arguably providing a service. Hopefully HMRC can clarify this but if you want to be on the safe side, I recommend using employees and managers not on furlough to carry out these roles until the position is clarified.

Please contact me if you have questions relating to disciplinary, grievance and consultation meetings during furlough on 01206 217318 or julie.temple@birkettlong.co.uk

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