Disciplinary procedures – employers beware of the effect of furlough.

12th October 2020 Employment

For many employers, the pandemic, lockdown and furlough will have raised a myriad of questions in respect of how best to continue to manage their workforce. In the midst of trying to protect jobs and deciding which employees should be furloughed it would be understandable if you have omitted to consider what effect the furlough system may have on employees who have received a warning, prior to being furloughed. By way of an example, imagine the situation whereby an employee was disciplined and given a 6 month warning in March, only to then be furloughed for 6 months. The employee has not therefore “served” the warning as they have not been undertaking any work during this period, due to the restrictions of the furlough scheme.

Where formal action has been taken against an employee resulting in a first or final written warning, the employee will have been given a specified period of time in which to make any changes specified to their performance and to refrain from carrying out any other act of misconduct. Following the end of the period specified, provided that there had been no further issues the employees record would reflect that their warning had expired. Usually, this would prevent you from considering this warning in any further disciplinary proceedings. A warning can therefore be a very positive corrective action, giving the employee in question the opportunity to improve their performance and behaviour.

However, where an employee has been furloughed, for a period which overlaps with part or indeed all of the time period of their warning, you may well not be in a position to assess by the expiry of the warning, that they have corrected their behaviour sufficiently. Letting the live warning expire risks putting you back to square one so to speak, if the employee has not in fact improved or commits another act of misconduct.

It is important for employers to be alert to this issue and to ensure that they have taken proactive measures to review employee records, towards the end of the period of a live warning and extend the period where this somewhat unusual situation may apply. Doing so may help prevent situations where an employee’s record is prematurely wiped clean, which could cause you to have to have to commence new disciplinary proceedings at a later date.

If you need advice or have any queries about dealing with any workplace issues arising from the COVID-19 outbreak, please contact Jennifer Smith or another member of the employment team at JMW Solicitors LLP on 0345 646 0342.

This note is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.

JMW Solicitors is a Limited Liability Partnership. The copyright in this note is owned by JMW. Any reproduction of this article should be credited to JMW. All rights reserved.

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Grace O'Driscoll is a Trainee Solicitor located in Manchesterin our Trainee Solicitors department

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Jennifer Smith is a Partner located in Manchester in our Employment department

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