We are currently operating a hybrid working model with most employees working three days in the office. However, we have agreed that high-risk employees or those living with high-risk individuals can remain working from home on a fulltime basis. A disciplinary issue has arisen with one of those remote employees. Given their high-risk status we have arranged a remote disciplinary meeting rather than requiring them to attend a face-to-face disciplinary meeting in our offices. They have refused to attend the remote meeting on the basis that remote hearings are not specifically referenced in the Employee Handbook. We believe that this is a tactic to try to avoid the disciplinary process. How should we handle this?

The company’s Employee Handbook should clearly set out the steps in your disciplinary process to include all meetings that should take place. It is possible to carry out these steps remotely. However before commencing a remote process, you should consider the circumstances and whether the employee’s rights are likely to be impacted by completing the process remotely. We understand the employee has not alleged that their rights would be prejudiced by using a remote process. We also understand that there are specific health and safety reasons which may justify using a remote process in this case.

When conducting a remote process, you must ensure that all fair procedures are complied with to include the employee’s right to have allegations put to them, the right to respond, the right to representation and the right to an unbiased decision. This is particularly important in remote processes as the WRC may apply a slightly higher standard of scrutiny to those processes. When conducting remote processes preparation is key.  When carrying out a process remotely you should ensure that the employee receives all relevant documents well in advance of any meeting to ensure that they have sufficient time to review them. It is also important to ensure that the employee has access to and is comfortable using the relevant online communication platform such as Microsoft Teams or Zoom. In order to avoid technical issues, it is advisable to complete a trial run in advance of the meeting. If the employee has any concerns regarding the remote process, they should be asked to outline them in advance of conducting any meetings.

In this case the employee has refused to attend the remote meeting but has not set out any specific concerns. In the first instance the employee should be asked to outline those concerns in detail. The company should then endeavor to address those issues. If, having addressed the issues, the employee still fails to attend the disciplinary meeting they should be informed that the meeting will be re-scheduled and that if they choose not to attend the re-scheduled meeting that it will proceed in their absence. All communications to the employee should be in writing.  It would also be helpful to set out the employer’s reasons for conducting a remote process in this correspondence. In the event the employee still refuses to engage the employer may be left with no option but to make a decision in the employee’s absence based on all information to hand.

In order to mitigate against the argument that the employee was not given the opportunity to respond to the allegations made against them the employer could give the employee the option to set out their responses to the allegations in writing. If the employee refuses to engage it will strengthen the employer’s argument that they had no option but to conclude the disciplinary process in the employee’s absence.

NOTE: Sinead's colleage Jennifer Cashman, Partner and Head of Employment Law at RDJ, is delivering two sessions at this year's Annual Review of Employment Law conference.

The conference takes place online via the world-class Hopin platform on 30th November and 1st December