Mr David Lewis v Benriach Distillery Company Limited

Dismissing an employee for breaching self-isolation guidelines found unfair

Dismissing an employee for breaching self-isolation guidelines found to be unfair

The decision to summarily dismiss an employee for being ‘highly irresponsible’ and ‘reckless’ in breaching self-isolation guidelines was found to be unfair.

An employee was successful in their claim for unfair dismissal despite the tribunal finding ‘blameworthy conduct’ on his part.

Background of the case

The Claimant was employed as a Forklift Truck Driver in the Respondent’s warehouse in Newbridge, Scotland. His employment began on 5 January 1998 and was continuous until 25 February 2021.

On 8 February 2021, the Claimant’s line manager emailed Mr Simon Briggs (HR) to explain that his son had taken a test for Covid-19 two days prior on 6 February 2021. Mr Briggs responded in a chain of emails to say that the Claimant had been ‘highly irresponsible’ and ‘reckless’ for attending work on that date when his son ‘must have’ been showing symptoms of Covid-19.

On 10 February 2021, the Claimant attended an investigation meeting with Mr Briggs. When asked why the Claimant’s son had taken a test for Covid-19, he responded to say, ‘to be honest I didn’t think he needed a test. One of his pals was going for a test and he said he had a sore head. I thought he was trying to get off work’. The Claimant confirmed he was aware of the rules regarding self-isolation namely that if a member of his household displayed symptoms of COIV-19 that they would need to, ‘get a test and self-isolate’ and that he would ‘need to self-isolate’. When asked why the Claimant had attended work on 8 February 2021, he responded to say that his son, ‘wasn’t showing symptoms. He just had a sore head. He booked the test himself’.

At this time, the guidance of the Scottish Government advised the following: ‘Who needs to self-isolate? Everyone who develops symptoms of Covid-19 – a new, continuous cough; fever or loss of, or change in, sense of smell or taste…People who live in the same household as a person with symptoms should also isolate straight away.’

On 17 February 2021, the Claimant was suspended. On the same date, in a separate letter from Mr Briggs, the Claimant was invited to attend a disciplinary hearing to consider the following allegation:

‘You committed a serious breach of health and safety processes, specifically attending work on Monday 8 February when a household member had informed you they were displaying symptoms of Covid-19 and had booked a Covid-19 test. That household member’s test result was positive for Covid-19. You also stated in your Track and Trace interview that you were always wearing a face covering on Monday 8 February but we have evidence to the contrary.’

The Claimant attended the disciplinary hearing on 23 February 2021 chaired by Ms Laura Grew with Mr Briggs in attendance. Ms Grew heard how the Claimant’s son hadn’t shown symptoms of Covid-19 in advance of his attendance at work on 8 February 2021.

In fact, the Claimant had said that his son had made a ‘mock cough and started laughing’ on 7 February 2021 and was still not showing symptoms.

The Claimant was dismissed with immediate effect on 25 February 2021 because his ‘explanation [for not self-isolating] was not acceptable’. Ms Grew added that confidence in the Claimant was completely undermined because he knowingly breached company and Scottish Government guidelines.

The appeal

The Claimant’s appeal was heard by Mr Lucas Avery. Mr Avery rejected it highlighting how the Claimant’s son then tested positive and that he’d clearly been worried enough about the situation to have chased his result later on 8 February 2021, after having already attended work.

The result

Judge Young concluded that the respondent’s decision to dismiss the Claimant with immediate effect was ‘irrational’ and was a decision that ‘no reasonable employer could have arrived at’. He added that even if the Claimant’s actions amounted to misconduct, this lacked the character of gross misconduct because it was ‘neither intentional nor gross negligence’.

Judge Young also criticised the continued involvement of Mr Briggs throughout the proceedings, noting his prejudged view of the Claimant’s conduct and the availability of those views to dismiss and appeal managers. Separately it was also contended that the dismissal was procedurally unfair as the Claimant had not been notified that he was being accused of deliberately breaching policy/ procedure and there was a failure to identify and or produce that policy/procedure.

However, the tribunal also ruled that there was some ‘blameworthy conduct’ on the Claimant’s part because he went into work despite the possibility that his son’s test might be positive.

What we can learn from this case

Amidst changing Covid-19 restrictions, it is still imperative that to dismiss with immediate effect, an employer must genuinely believe there to be misconduct, that belief must be based upon reasonable grounds and this must follow a reasonable investigation.

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