A recent employment tribunal case in Scotland raised two questions with some very interesting answers.
Q1: Should an employer dismiss an employee for reporting for duty?
A1. Yes, if that employee is in breach of Covid self-isolation rules by turning up to work, because a household member is awaiting Covid test results and is displaying symptoms.
Q2. But what if the employee thinks the household member is faking it?
A2. Read on…
Covid Self-Isolation Workplace Rules
It involved an employee with 23 years of service who breached Covid self-isolation rules to attend work. His son was awaiting the results of a PCR test after displaying symptoms of Covid, including a cough and loss of sense of taste and smell. His son lived at home with his father, so under Scottish Government guidelines they both should have self-isolated at least until the PCR tests came back.
However, the employee reported for work as normal while awaiting the test results, as he thought his son was faking the symptoms to get a few days off.
When the results came back, the employee informed his employer, who deduced that he had been attending his workplace in contravention of the guidelines. The employee was suspended on full pay, pending investigation.
The investigation concluded, the employee was found to have committed a serious breach of health and safety processes and was dismissed without notice for gross misconduct.
The company had clear and explicit guidelines, alongside those of the Scottish Government, regarding self-isolation and attendance at work. The guidelines state that employees “who live in the same household as a person with symptoms should also isolate straight away.”
Employment Tribunal Findings
The employment tribunal judge conceded that the employee should have erred on the side of caution, even though he did not believe his son.
Despite this, the tribunal found in favour of the claimant (employee) and awarded him compensation of £23,978.19 for unfair dismissal, having reduced the basic award by 25% for the employee’s contributing conduct.
The employment tribunal took into account the employee’s work records, noting that he had a clean disciplinary record in 23 years’ service apart from a warning issued around 17 years ago concerning the scanning of a pallet. He also had an excellent attendance record.
The judge noted that there was no advantage to the claimant in attending work or disadvantage in not attending work as he would get paid either way, so there was no motive to attend work in breach of guidelines.
Crucially, the tribunal took the view that because the claimant did not believe his son’s claim about Covid symptoms, he was not therefore in breach of any rules regarding self-isolation if any member of a household displays symptoms. His son was subsequently found to have Covid, whereupon his father believed him and complied with rules and guidelines.
If you have any employment law issues, as an employer or employee, don’t leave it to chance or trust ‘common sense’. Play it safe and contact our Head of Employment Law, Ivona Supernat at Ardens Law to guide you through the law and best practice. at Ivona@ardenslaw.com or on 020 7100 7098.
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