Dismissal for breaching self-isolation rules unfair

David Lewis, a forklift truck driver of 23 years in a dry goods warehouse, was dismissed for gross misconduct following an investigation which found he had come into work when he should have been self-isolating at home, as per government guidelines. In this case, Lewis v Benriach Distillery Company Limited, the employee went to work whilst his son was awaiting the result of a Covid test, despite the Scottish Government guidance requiring anyone who lived with someone displaying Covid symptoms to isolate.

However, Lewis felt that his son was pretending to have Covid symptoms, saying that he was “at it” because he wanted to skip work for the day and spend time with his friends. He did not believe his son was ill and said his complaints of a headache and cough were fake. Nonetheless, Lewis took his son to get a PCR test to be sure. When the results weren’t returned by Monday morning, Lewis went to work as usual. It wasn’t until the next day that the results came back to confirm that the son was indeed Covid-positive.

As soon as Lewis was aware of this, he contacted his manager informing him of the need to take time off work to isolate, to which he got an email response calling him ‘highly irresponsible’ and ‘reckless.’ Following an investigation, Lewis was dismissed without notice for a serious breach of health and safety policies. Lewis appealed the decision and re-explained his misunderstanding with the situation, but his appeal was denied.

The Employment Tribunal (ET) accepted Lewis’s claims that he did not believe his son was showing Covid symptoms or that he needed to isolate. It found that he would not have gained anything from pretending his son didn’t have symptoms since he would have been paid in full for isolation periods. It further accepted that Lewis would not have attended work if he believed his son was genuinely suffering from Covid. As such, the employment judge upheld his claim for unfair dismissal and ordered the organisation to pay him £23,978.19 in compensation.

This case highlights the importance of not jumping to conclusions when determining the outcome of disciplinary matters. The organisation was right in inviting the employee to an investigation meeting as soon as it discovered he may have been in breach of self-isolation rules. However, had they carried out an effective evaluation of background factors relating to the case and took time to fully understand the employee's version of events and explanations, they may have been able to avoid tribunal claims being raised. When dismissing an employee with over 2 years' service for gross misconduct, it's imperative for employers to show they have considered lesser sanctions and can justify why these were not feasible. The three key tests to apply in such situations include looking at whether the employer genuinely believed the employee was guilty of the alleged misconduct; if the employer had genuine grounds for this belief that they were guilty; and if a reasonable investigation was carried out before making a final decision. 

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