PCS opposes the unfair and potentially discriminatory policy
HR policy guidance has been updated, on 23 April 2020, to include two new paragraphs to apply the principle that the employee has to be at work to serve the normal post-warning review period, to coronavirus related special leave. These paragraphs state:
35. It is recognised that colleagues who are on special leave and are in a review period following a formal warning for either unsatisfactory attendance, poor performance or misconduct (i.e. a live warning is in place) are not at work to be able to demonstrate improvements.
36. Any live warning will be suspended during the period of special leave and resume when they return to work. This means the date on which the review period was due to end will be postponed by the duration of the special leave. This will apply where the absence is for a month or more. Suspension applies to the review period only and not to any subsequent ‘sustained improvement period’.
PCS opposes unfair and potentially discriminatory policy
PCS has not agreed the introduction of this new policy. PCS believes that it is unfair to apply this policy for members who have had no choice but to stay at home due to government and departmental instructions to do so in response to the coronavirus pandemic. PCS is concerned that this new policy for suspending the review period will not provide a fair opportunity for the individual to reach a satisfactory conclusion of that review period. PCS has warned DWP that formal action arising out of this policy will also need to be carefully considered in an individual’s case under the Equality Act 2010. There must be no direct discrimination and indirect discrimination must be objectively justified.
Consultation with PCS
DWP Coronavirus HR policy guidance, and related guidance, is usually updated following consultation with PCS through the Departmental Trade Union Side. Some updates may have to be discussed after immediate implementation but this should usually be updates required by new guidance from Public Health England. PCS is engaged in continuous consultation with DWP on a daily basis on coronavirus HR related issues. This does not mean that PCS has agreed all HR policy guidance. But it does mean that PCS has usually amended, improved or persuaded DWP to introduce better guidance to support members. PCS will also update Branches where there is disagreement with a DWP policy.
Managers should be flexible and practicable
DWP expects managers to be flexible and practicable. Current HR policy guidance for procedural easements confirms:
34. Managers should be flexible and practicable in applying deadlines in procedures. Discretion should be applied, based on the circumstances, to allow reasonable additional time for things to get done in the current situation. This might apply to deadlines for submitting grievances, notice of meetings and time allowed for trade union reps. or note-takers to be obtained. In line with the latest guidance (link is external), travel between sites for meetings should be avoided, with participants expected to agree telephone, VC or Skype meetings.
Questions and answers for line managers
Current DWP Coronavirus Questions and answers for line managers include:
How should I manage HR processes such as discipline and grievance, do we need to follow the normal procedures?
Normal procedures for HR processes such as attendance management, discipline and grievance and should be followed as closely as possible, however due to employees being absent from work or working at home it may be difficult to comply with the timescales set out in the policies. For example, it may not be possible to arrange a face-to-face meeting or for an employee to find a TU rep to accompany them to a formal meeting within the usual timescale.
Managers should be flexible and pragmatic in applying the policies and explore alternative, agreed ways or working such as holding meetings by phone or Skype, allowing longer timescales to arrange meetings or allowing an employee to appeal against a decision. Managers can contact the CSHR Casework team for advice.
Common line manager scenarios
Current paragraph 19 of DWP Coronavirus Common line manager scenarios covers:
You should be flexible and practicable in applying deadlines in any procedures, not just Grievance. Your discretion should be applied, based on the circumstances, to allow reasonable additional time for things to get done in the current situation. This might apply to deadlines for submitting grievances, notice of meetings and time allowed for trade union reps. or note-takers to be obtained. To the greatest extent possible, travel between sites for meetings should be avoided, with participants expected to agree telephone, VC or Skype meetings.
PCS advice for Branches
Warnings must not be given for sickness absences attributed to coronavirus (COVID-19) under Coronavirus HR policy guidance paragraph 11.
PCS and DWP expect managers to apply reasonable flexibilities to normal procedures during the coronavirus outbreak. All flexibilities must continue to apply basic standards for procedural fairness, including natural justice. The HR Decision Maker’s Guide and Appeal Manager’s Guide provide guidance for these basic principles:
- Natural justice – the rules of natural justice require that a fair process is followed i.e. that the employee knows the allegations and is given a fair opportunity to state their case (HR Decision Makers guide, Glossary 8)
- Consistency must not be confused with uniformity - decisions must be consistent with policy and comply with procedures to ensure they are lawful, reasonable and fair. However, consistency must not be confused with uniformity. Decision making which aims to produce identical outcomes can be fundamentally unfair when making a decision in an individual employee’s case. (HR Decision Makers guide, paragraph 3)
- Procedural correctness – Managers must follow procedures correctly when making any decision. Following a fair procedure supports making a fair decision. But procedural errors only sometimes automatically render the original decision unfair (e.g. attendance management warning given when the employee has not reached or exceeded their trigger point).[See Appeal Manager’s Guide Checklist]
Also, after a decision is made to give a warning the subsequent post-warning review period must provide a fair opportunity for the individual to reach a satisfactory conclusion of that review period.
Members have the right to appeal where there is a procedural right of appeal and, if not, to dispute unfavourable decisions in their personal case using the Grievance and Appeal Procedures. Members have the right to PCS advice, support and representation.
PCS will make every effort to support you with PCS Briefings on new developments and key issues. All content on the DWP coronavirus intranet pages is being updated on an on-going basis in response to updated NHS and Government guidance and proposals from PCS for improvements. Up to date official DWP information and Coronavirus HR Policy guidance is on the DWP intranet.
PCS may be contacted by email when there is an urgent need to do so via: email@example.com