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21 Dec 2020

Pandemic-proof performance and disciplinary management

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Amongst the myriad of practical difficulties faced by employers as a result of the Covid-19 pandemic, managing performance and disciplinary issues remotely is a particular challenge. Huge numbers of employees are now working from home which means identifying and resolving conduct issues is more complex than before the pandemic, when most employees worked at least part of the time from the office.

In this update, we consider the unique issues which arise in a home-working context and how best to manage them in each of the following jurisdictions:

United Kingdom

What kind of performance or disciplinary issues arise when employees are working from home?

At the start of the Covid-19 pandemic, large numbers of office-based employees abruptly became home-working employees and had to quickly change their working practices. This has been a year of unprecedented challenges with many employees facing a number of different pressures aside from their normal workload. Coupled with remote working, and in particular, the lack of oversight from employers this may have contributed to a drop in performance or other issues arising such as:

  • Being uncontactable;
  • Failing to attend online meetings;
  • Taking a disproportionately long time to respond to emails or calls;
  • Not engaging in their tasks and producing work of a poor quality;
  • Carrying out domestic tasks instead of working;
  • Spending too long on internal instant messaging platforms or sending inappropriate messages to colleagues;
  • Breaching company or client confidentiality;
  • Making copies of sensitive internal information; or
  • Preparing to leave their employer for a competitor or working for a different employer.

In addition, under the rules of the UK’s furlough scheme, any employees who are on furlough leave must not carry out any work for their employer.  If they do, the employer may be committing “furlough fraud” and may have to repay the grant plus penalties to HMRC.  Employers should make it clear that if employees do not follow their instructions during furlough leave this will be treated as a disciplinary matter. This also includes furloughed employees seeking alternative employment without their 'original' employer's permission.

Almost any performance or conduct issue which arises in an office-setting can also occur when employees are working from home so it is important for employers to be able to adapt their usual policies and procedures to suit a remote context.

Employers should also try to identify the reason for the performance or disciplinary issue. Could the fact the employee is working remotely be contributing to or cause the issue? For example, employees who live alone or who have to self-isolate may be more likely to suffer from depression which could be affecting their performance. This could amount to a disability under law so employers should consider whether they should make any reasonable adjustments to remedy the issue before proceeding with a performance or disciplinary process. If an employer does not do this, there is a risk that the employee will be able to bring a discrimination claim against them.

Other reasons such as childcare responsibilities could also be contributing to the issue. Statistically caring responsibilities fall primarily on women and they are more likely to be interrupted during paid work than men. Poor management of these situations exposes employers to claims of both direct and indirect discrimination.

How should employers carry out a fair performance or disciplinary process?

All the usual guidance applicable to fair performance and disciplinary processes continues to apply in a remote context. For example, everyone attending a formal performance or disciplinary meeting should be supplied with copies of any documents or evidence a reasonable amount of time in advance. A virtual performance improvement plan should be drafted in a similar way to one for an employee working from the office and should include achievable targets within reasonable timescales.

ACAS has published additional guidance on conducting disciplinary and grievance procedures during the coronavirus pandemic. Although this guidance does not have the same status as the ACAS Code of Practice, it should still be considered by employers whilst the pandemic is ongoing.

This guidance also states that if there is no safe, fair or reasonable way to go ahead with a disciplinary procedure then the employer should consider suspending the procedure. The employer should regularly review any decision to suspend a procedure and should do this in consultation with those involved.

Internal investigations should be approached with the same vigour as they would be when carried out at the office. Employers should not take more time to carry out processes just because their employees are physically separate from each other; issues still need to be resolved within a reasonable timeframe. If an employer is too slow to carry out a disciplinary investigation and procedure, this may constitute a breach of the ACAS Code of Practice (which applies to remote as well as in person disciplinary and grievance procedures) meaning an Employment Tribunal could award a successful claimant employee a 25% uplift to their award.

What are the challenges of conducting performance and disciplinary processes remotely?

Difficult conversations are always easier to have in person – attendees are better able to read body language and hear different tones of voice. However, performance and disciplinary meetings should continue to go ahead, preferably by video call.

If an employee is on furlough leave, they can still take part in a disciplinary investigation or hearing, provided that the Coronavirus Job Retention Scheme rules and guidance is followed by everyone involved.

How should employers address the challenges of conducting processes remotely?

Conducting a performance or disciplinary process remotely requires greater consideration of the logistical and practical arrangements. Does everyone who needs to attend the meeting have a good enough internet strength for a video call? Should the meeting be held during school hours so that the employee will not be disturbed by their children at home? Taking time to think in advance about the challenges posed by conducting a remote meeting and how to resolve them will help to ensure the meetings run smoothly.

It is also sensible for the employer to ask the employee at the outset of the meeting whether they are recording it – something which is much easier to do when a meeting isn't in person. The employer should also make it clear that recording the meeting without permission could amount to misconduct in itself. The employee should also show that no one else is in their room, unless they have been allowed to bring a companion.

A note taker should attend the meeting and the notes should be shared with the employee for comment afterwards.

Do employees have the right to be accompanied to a performance or disciplinary meeting?

Yes, employees must be permitted to bring another employee, a trade union representative or an official employed by a trade union as a companion to any formal disciplinary meeting. This includes formal performance meetings if the performance issue is being treated as a disciplinary matter.

If a companion is unable to attend the meeting, an employer should offer the employee the chance to suggest another date and time, as long as this is reasonable and not more than five working days after the original hearing date.

If an employee is seeking to delay the meeting by a longer period because their chosen companion is not unavailable, then an employer should consider whether a delay of more than five days is reasonable in the circumstances.

What if the employee is unable to attend a meeting because they are sick or self-isolating without good online access?

Employees who are unwell are entitled to go on sick leave. An employee who is too ill to attend an in-person meeting may also be too unwell to attend a remote meeting. The meeting should be re-arranged for a time when the employee is well enough to attend.

If it is likely that the employee will be too unwell to attend a disciplinary meeting for a long time, it may be reasonable to ask the employee to provide written submissions instead and/or for the disciplinary hearing to go ahead without them. However, holding a disciplinary hearing without the employee should be a last resort and employers should carefully consider whether this is really reasonable in the circumstances. Before proceeding without the employee, the employer should ask an Occupational Health Provider for their medical opinion and offer the employee alternative arrangements to facilitate their participation.

If an employer decides to dismiss an employee after holding a disciplinary hearing in their absence and the employee brings a claim for unfair dismissal, the decision to dismiss could be deemed to be procedurally unfair by an Employment Tribunal and the employee may be awarded compensation for the amount of time it would have taken their employer to have followed a fair procedure.

Dubai

For the purpose of this alert, we have focussed on the legal requirements that currently apply to:

  1. Private sector employers and employees subject to Federal Law No. 8/1980 (the “UAE Labour Law”) and the Ministry of Human Resources and Emiratisation Resolution (“MOHRE”) No. 281 of 2020 on remote working in the private sector during the application of precautionary measures to limit the spread of COVID-19 (the “Remote Working Resolution”). Employers based in free zones should take advice on whether the Remote Working Resolution applies to them; and
  2. Private sector employers and employees subject to the Dubai International Financial Centre (“DIFC”) Law No.2/2019 (the “DIFC Employment Law”).

What kind of performance or disciplinary issues arise when employees are working from home and how should these be prevented and/or addressed?

In broad terms, the same range of employee performance or disciplinary issues can arise whether employees are working in the office or remotely; however, it's fair to say that remote working can exacerbate certain issues.

When employees are working remotely, including working from home ("WFH"), the lack of physical day-to-day contact can mean that employers have less oversight or control of employees' work - or at least employees can perceive that to be the case.  Some employees may be tempted to exploit their new-found sense of freedom by:

  • Carrying out work for other employers (particularly in difficult times, such as the COVID pandemic, when there may be an increased need to supplement their regular income) which is potentially in breach of work permit and visa restrictions;
  • Making arrangements to set up in competition with their employer;
  • Breaching confidentiality obligations, whether in the home with family members or in a public space - and whether intentionally or by mistake; and
  • Making dishonest assertions about the work they have done, or the hours that they have worked.

Often prevention is better than cure, and so we are seeing many employers implementing certain controls and mechanisms in order to try and minimise such issues arising in the first place, and/or to ensure that they can be discovered before they escalate beyond repair. For onshore UAE employers and employees, measures to address such issues were implemented by the Remote Working Resolution (and the accompanying Temporary Guide) in March 2020 in response to the COVID pandemic (see our alert HERE for further details). The Resolution requires the implementation of performance management mechanisms by employers, for example, to manage working hours and to check that employees have worked their required hours and completed their designated tasks.  It also includes obligations on employees, such as to perform duties within specified timeframes, to make themselves available over the phone/by email, and to provide evidence on achievements and productivity - which could assist employers with managing and monitoring their performance when they are WFH.  Whilst the Remote Working Resolution does not apply in the DIFC, it would be good practice for both DIFC-based and onshore employers to communicate expectations of this nature to employees and update any relevant policies accordingly.

The suitability of the working environment also has the potential to lead to performance and productivity issues. Working from home during the pandemic has led to employees having to deal with issues such as:

  • Inadequate IT systems and equipment;
  • Juggling childcare, home schooling, or other difficult home working environments;
  • A lack of support from managers and difficulties with remote supervision;
  • Feeling isolated, stressed and/or with poor mental health; and
  • Keeping themselves motivated during what has been a difficult time.

Employers should be proactive in dealing with such issues before they escalate into performance or conduct concerns; and in any event, investigate the employee’s individual circumstances before taking any formal performance management or disciplinary action.  It is good practice to:

  • Consult with employees on how they might need supported;
  • Offer flexibility with working arrangements where possible;
  • Undertake home-working health & safety risk assessments with employees;
  • Impress upon employees the importance of taking regular breaks and annual leave; and
  • Provide support to assist employees with protecting the boundaries between work and home life.

The Remote Working Resolution also imposes obligations on employers to provide employees with (amongst other things) the necessary technical equipment and a secure technology framework for carrying for remote working.  In the DIFC, employers are under a general duty to protect the health, safety and welfare of their employees in the 'workplace', and a number of more specific duties (including providing a suitable workstation).  A prudent employer will apply these obligations equally when employees are working away from the main place of work, for example, at home.

Many organisations in the UAE have now returned to the office to some extent as restrictions have eased.  Issues that have arisen from full-time WFH arrangements may be addressed by bringing the employee back to work in the office, at least on a part-time basis.

How should employers carry out a fair performance or disciplinary process?

Employees working from home are subject to the same expectations and performance/disciplinary policies as if they were working in the office. Employers should update policies to clarify acceptable behaviour to reflect new remote working practices, and to provide for flexibility in gathering evidence and carrying out meetings/interviews through remote conferencing facilities if this is necessary.

Under the UAE Labour Law, employers are required to provide the employee with an opportunity to comment on any disciplinary allegations against them, and to allow them to provide a relevant explanation or defence.  If an employee’s failure to perform their duties in accordance with their employment contract is serious enough to merit summary dismissal, the employer must give them an opportunity to remedy such failure following a written investigation and a warning.

Whilst there are no equivalent statutory requirements in the DIFC Employment Law, it would be best practice to carry out some form of disciplinary/performance management process. This is particularly so where the conduct in question has the potential to involve underlying health issues that might give rise to allegations of discrimination, whistleblowing, and/or breach of the employer’s duty of care.  Issues related to employees’ physical and mental health are more prevalent in the current climate and should be treated with care. 

Notwithstanding the specific legal positions, carrying out disciplinary proceedings and/or a performance management process prior to any dismissal should mitigate the risk of claims, reduce the amount of compensation that may be awarded for any potential claim, and may be necessary in order to adhere to any international group policy.  Where this is the case, employers should give employees notice to attend a meeting to discuss these issues, via video conference if face-to-face meetings are not possible.  If an employee can’t attend, employers should act reasonably and give them a further opportunity to do so.  As a final alternative, the employee could be invited to make written representations on the allegations against them.  Failing all of this, the employer may have no alternative but to take a decision on their termination under the relevant process in their absence but, as indicated above, that it not without risks, particularly given the onshore UAE Labour Law requirements. 

What are the challenges of conducting performance and disciplinary processes remotely?

The preferred approach should always be to conduct performance/disciplinary meetings face-to-face, which should currently be possible in the UAE, subject to adhering to any necessary precautions and social-distancing requirements.  Employers may consider holding any such meetings at a neutral venue, particularly if sensitive matters are involved.  If for any reason this is not possible and a remote meeting is necessary, some challenges may include:

  • Difficulties engaging with the employee due to distractions at their end, from family or others in the room, or from laptops and/or phones that they may not have put aside/switched off.
  • Ensuring that the employees are attending the meeting on their own.
  • Ensuring that the employees are not recording the meeting, which can not only give rise to confidentiality issues but is also a criminal offence in the UAE (under Article 378 of Federal Law No.(3) of 1987 of the Penal Code) punishable by fines and imprisonment if the parties don’t consent to the recording in advance.
  • These meetings can often be an emotional experience for employees, and they may switch off their video or hang up the call or video completely when pressed on difficult points.

How should employers address the challenges of conducting processes remotely?

As above, meetings should be conducted face-to-face where possible, and if an employee refuses to do so then the employer should consider whether such a refusal is reasonable (in the same way that they would if an employee refused to return to the office, as covered in our alert HERE).  If it is necessary to carry out the meeting remotely, then employers may address the above challenges by:

  • Ensuring that employees have all relevant information and documentation sufficiently before the meeting so that they have time to prepare and can focus on the issues.
  • Sending the employee any applicable performance/disciplinary policy in advance and reminding them that the meeting will be conducted, as far as possible, as though it was taking place face-to-face.  This means that they should ensure that they are in a quiet, private room on their own (subject to the advice on being accompanied, below) and at a time when they are unlikely to be distracted.  They should ensure that their phone is switched off and emails shut down whilst the meeting takes place.
  • Employers should consider whether or not they will allow the meeting to be recorded, and this decision will likely depend on the nature and sensitivity of the matters being discussed.  This should be addressed with the employee before the meeting starts. If recording is permitted and agreed, then the terms of the recording should be documented in writing before and after the meeting, and should include strict confidentiality obligations, and state the purpose of the recording and who will have access to it whether internally or externally.  It should also include an obligation on the employee to send the recording to the employer after the meeting to be typed up, to avoid the risk of tampering.  If the employee is not permitted to record the meeting, then they should be reminded that doing so may constitute a criminal offence.
  • Be mindful of the employee's emotions and allow them to take breaks at necessary intervals.

Do employees have the right to be accompanied to a performance or disciplinary meeting?

Employees don't have any legal right to be accompanied at any such meeting, however this may be permitted under the relevant policy.  If not, an employer may otherwise consider it reasonable to allow the employee to be accompanied by a colleague or family member if they think that the support is likely to assist with the meeting running smoothly.  If the employee is to be accompanied, then the employer should be clear on what the companion's role is (e.g. to support the employee and clarify questions asked, but not to answer questions on the employee's behalf); and be clear that they will be subject to strict confidentiality obligations.  Depending on the nature of matters being addressed, you may also want to require the companion to sign a confidentiality undertaking in advance.

What if the employee is unable to attend a meeting because they are sick or self-isolating without good online access?

See our alert HERE for further information on how to deal with employees who are sick during disciplinary or other proceedings.  Employees should generally be given a reasonable opportunity to attend the meeting and offered a further opportunity to attend a meeting if they are sick when it is due to take place; however being sick does not necessarily mean that they are not fit to attend the meeting (or at the very least provide written representations regarding the allegations against them).  Employers should however consider delaying or making adjustments to the process to take account of the employee's particular illness or injury.

If the employee is self-isolating with no online access then the meeting can either be delayed until they are free, or carried out by telephone if matters need addressing more urgently.

Hong Kong

What kind of performance or disciplinary issues arise when employees are working from home?

The main concern which employers may have when employees are working from home is how they are spending their time. Employers should recognise that when working from home, employees may not be able to devote their time solely to discharging their contractual obligations and have other concerns which compete for their time. Work output may become an issue especially where the employee has young children who may need to be supervised during online school lessons. For this reason it is important that employers make clear to employees who work from home what their expectations are and any flexibility which they are willing to extend to employees in the discharge of their duties.

Ensuring that an employer’s information/data remains confidential and is not inadvertently shared with others may be difficult where an employee does not have their own room which they can work from when working from home. Setting up a workspace on the family dining table and having family members overhearing phone calls with clients may breach an employer’s policies relating to keeping an employer’s confidential information secure. Employers need to ensure that employees understand that when working from home, the employer’s policies still need to be adhered to and where necessary should remind employees what steps they should implement when working from home to ensure compliance with its policies.

How should employers carry out a fair performance or disciplinary process?

In Hong Kong, there is no legal requirement that employers should carry out a fair performance or disciplinary process prior to imposing disciplinary sanctions on its staff. However, if an employer has a written policy set out in its Employee Handbook, it must follow its policy before taking any measures to discipline its staff, failing which, any disciplinary action may be challenged.

A fair performance or disciplinary process would normally consist of the following:

  1. identifying the performance or disciplinary issue;
  2. appointing a separate and independent person to carry out an objective investigation. Where the matter is complex, professionals may be appointed as external investigators;
  3. obtaining relevant evidence from witnesses or other sources;
  4. providing a hearing at which the evidence collected can be presented to the employee who should be given an opportunity to respond to the findings of the investigation;
  5. assessing the employee’s response;
  6. making an objective finding;
  7. explaining the decision to the parties involved, preferably in writing and imposing a disciplinary sanction which is commensurate to the breach committed;
  8. updating the company’s records; and
  9. maintaining confidentiality throughout the process.

What are the challenges of conducting performance and disciplinary processes remotely?

Conducting performance and disciplinary processes remotely may prove difficult especially where witnesses are being interviewed as it is more difficult to gauge a response from interviewing a person through telephone calls/video conferencing. Additional issues which may complicate matters is where the person who is interviewed has an unstable internet connection or is distracted from events in the home environment such as young children or other persons in the vicinity. The employee who is the subject of the disciplinary may be unwilling to deal with the process remotely and may request that the process be delayed until they are back in the office. Where disciplinary policies of the employer have been drafted so as not to encompass remote hearings, the employee may be able to rely on the wording of the policy to the detriment of the employer.

How should employers address the challenges of conducting processes remotely?

The employer should try and understand the reasoning behind why an employee is unwilling or unable to attend the process so that they can provide reasonable assistance to minimise any unfairness to the employee resulting from a remote hearing. However, where an employee unreasonably resists the process, the employer may consider making a decision objectively on the basis of the evidence available.

The employer should request that the employee attends the hearing in a private room where they will not be disturbed by any family member. Any documents shared with the employee for the purposes of the hearing should be password protected to prevent unauthorised access by third parties.

The employee should be reminded of the prohibition on recording the hearing and the potential breach of trust and confidence in the event that they secretly create a recording.

Do employees have the right to be accompanied to a performance or disciplinary meeting?

In Hong Kong employees do not have a right to be accompanied at a performance or a disciplinary meeting. Only if the Employee Handbook allows the employee the option of being accompanied can the employee insist on being accompanied by a third party at the meeting.

What if the employee is unable to attend a meeting because they are sick or self-isolating without good online access?

Where an employee is sick and the period of sickness is supported by a medical certificate, the employer should delay the disciplinary process to a later date when the employee has resumed work. Once the employee has ceased claiming sick leave the employer may choose to conduct the disciplinary meeting by phone in the event that the hearing cannot be conducted by video conferencing.

Singapore

What kind of performance or disciplinary issues arise when employees are working from home and how should these be prevented and/or addressed?

There is a lack of visibility on what the employees are doing during working hours. The employee may also be faced with many distractions in the home and therefore have difficulty focusing, inevitably concentrating on the distractions that may include taking care of children or elderly parents or running errands during work hours which the employer may find difficulty in policing. This may then result in a drop in the employee’s productivity.

There may be security issues because the employees have brought home information that is private and confidential. The employers will need to ensure that there is appropriate forms of protection for IT systems such as password, fingerprint or voice recognition for access to the corporate network or data and will have to set clear and proper guidelines on the use of company and corporate information.  

How should employers carry out a fair performance or disciplinary process?

Any performance or disciplinary process should be as transparent as possible and there should be clear communication from the employer to the employees on how the process is to be carried out. The process should be applied consistently across the employees and managers or supervisors should be well-informed and trained as to how to handle such process.

For performance review, the employers should set clear expectations of the job scope and responsibility. If possible, policies should be drawn up to set out the working conditions with key performance indicators being set and how these key performance indicators are to be met so that there is no ambiguity on how targets are to be achieved. These policies should also be brought to the employees’ attention so that the employees are aware of such policies. If the employee is not meeting the expected standards, there should be an investigation of the results why the expected standards are not being met (preferably between the employer and the employee). The employer and the employee can then agree on the steps to take to improve or achieve the expected standard and a reasonable time period for improvement.

For the disciplinary process, the employees should first be aware of the standards of behaviour that is expected of them, this could be by way of a company handbook or company policy document setting out a code of conduct. An employer should conduct investigations into any reported incidents and the employee should be given a proper opportunity to be made aware of the allegations and respond to the allegations before a decision is made by the employer as to the kind of sanctions to be faced by the employee, especially if the sanction is a dismissal without notice.

What are the challenges of conducting performance and disciplinary processes remotely?

There will usually be a form of investigation into the conduct of the employee which may involve conducting interviews with witnesses of the conduct / other employees. Ideally the investigation should be confidential and conducted without delay.

There will inevitably be a delay in scheduling a virtual face to face meeting with witnesses of the conduct / other employees as compared to the person conducting the investigation physically going up to the witness and asking the witness to speak with them immediately.

Further, there is a higher chance that the employee may end up recording a conversation held virtually as there is greater ease in being able to do so. If the employer does not allow the employee to be accompanied by a legal advisor or someone else during the interview, the employee may try to take advantage of a virtual hearing to either have someone physically next to him without letting the employer know or can communicate with such a person virtually and the employer, being at the end of a screen, may be none the wiser.

It may also be more difficult for the employer to assess the truth of what the witness is saying as reading body language over a virtual platform will inevitably not be as accurate as being able to observe the employee physically.

How should employers address the challenges of conducting processes remotely?

If possible, given the easing up of restrictions and COVID-19 measures in Singapore, the employer should conduct the investigations physically while complying with the necessary measures for safe-distancing and working in the office.

If meeting physically is not possible, virtual interviews with potential witnesses should be scheduled as soon as possible and without delay. They should also preferably all be scheduled within a day or two, unless this is not possible because of the large amount of witnesses and limited resources of the employer. This may prevent witnesses from talking to each other before the interviews and collaborating their version of the events.

Employers should be aware that a witness may want to have someone accompany them during the interview or at the disciplinary hearing. If this is not allowed by the employer, the employer should be alert to signs during the virtual hearing that someone else is present with the employee or that the employee is taking the opportunity to seek advice from someone. If the employer detects that someone else is present, the employer should immediately end the interview and caution the employee that such behaviour is not allowed.

Do employees have the right to be accompanied to a performance or disciplinary meeting?

There is no statutory or legal right in Singapore requiring an employer to allow an employee to have someone, whether that person is a legal advisor or not, accompany the employee to a performance or disciplinary meeting.

Such a right may be included in the employee’s employment contract or the employer’s policy documents. If so, the employer should abide by what is stated within such documents.

What if the employee is unable to attend a meeting because they are sick or self-isolating without good online access?

The employer should set a time frame within which the meeting has to be concluded. The employee should be asked to produce proof of being unwell or the self-isolation period. If the employee is still unwell or self-isolating by the end of the deadline and there is sufficient proof of the same, the employer should do its best to make arrangements for adequate online access to be provided to the employee so that the meeting can take place as soon as possible.

If the employer observes that the employee does not look physically competent to be providing the information sought, the employer should wait for the employee to recover before proceeding with any interviews with the employee, especially if the employee is the one who is facing allegations lest the employee complaints that he has not been treated fairly and did not have a proper opportunity to respond to the allegations because he was physically unwell. If the employee is someone who is only a witness to the incidents, the employer will need to access how important the evidence is to the investigation as the investigation should not be unduly delayed.

The Singapore section of the article was written by Jason Yang and Christine Ong at Virtus Law LLP (a member of the Stephenson Harwood (Singapore) Alliance). For more information, please do not hesitate to contact any of the team at Stephenson Harwood (Singapore) Alliance.

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