Reward
Dismissal for breaching self- isolation rules 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 went 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 attended work while his son was awaiting the result of a Covid-19 test. This was despite the Scottish government guidance requiring anyone who lived with someone displaying Covid-19 symptoms to isolate. Lewis believed his son was pretending to have Covid-19 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 polymerase chain reaction (PCR) test to be sure. When the results weren’t returned by Monday morning, Lewis went into work as usual. It wasn’t until the next day the results came back to confirm that the son was Covid-19 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. 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 ET accepted Lewis’ claims he did not believe his son was showing Covid-19 symptoms or that he needed to isolate. It found 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-19. 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 avoiding jumping to conclusions when determining the outcome of disciplinary matters. The organisation was right to invite 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 two 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 ● if a reasonable investigation was carried out before making a final decision. This case highlights the importance of avoiding jumping to conclusions when determining the outcome of disciplinary matters New development on sexual harassment claims A recent ET case, Austin and Newton v Royal Borough of Kensington and Chelsea, sheds new light on sexual harassment claims. In this case, the claimants were working together on the council’s response to the Grenfell Tower fires. They were gossiped about in the office for arriving late and leaving early together, going out for lunch and taking ‘unnecessary’ trips to the tower. Inappropriate comments were made by colleagues about what they were doing while out of the office, including unfounded allegations of them getting a hotel room. The claimants found these comments to be derogatory and offensive, which resulted in them raising a claim for sexual harassment. The tribunal agreed, finding the remarks
by colleagues to be unwanted conduct of a sexual nature, because they referred to alleged sexual activity. The ET conceded that the purpose of the comments probably related to others wanting to vent their frustrations about the relationship between the claimants. However, the conduct, once the claimants found out about it, had the proscribed effect of violating their dignity and created a hostile working environment. The employment judge considered the impact the situation had on the claimants individually. It was concluded it would be reasonable for a manager (Austin) to feel that an allegation he was having sexual relations with a subordinate, rather than working, would violate his dignity. Similarly, it was reasonable for Newton to feel the same effects when colleagues invalidly made allegations of her having relations with a manager instead of working. Previous case law relating to sexual harassment claims focuses predominately on issues solely involving individuals of the opposite sex. Typically, the case background follows a pattern of a senior employee of one sex making inappropriate, unwanted remarks to a junior employee of the opposite sex. However, what’s interesting about this case, is that the misconduct comes from a third-party employee not directly involved in the relationship. As such, employers should pay particular attention to workplace gossip and chatter, where mention is made of two employees having an affair, or any other unconfirmed relationship. Should this happen, employers must take reasonable steps to intervene and shut down potentially offensive conversations. It is beneficial for businesses to review their policies on sexual harassment, bullying and discrimination in the workplace and assess how aware employees are of such policies. A robust policy is the first step in preventing misconduct, however, organisations should also ensure there is a clear, zero-tolerance attitude towards these behaviours. Similarly, workplace training for managers and workers on how to manage, avoid and report inappropriate actions can go a long way in discouraging all forms of workplace misconduct. So can providing effective support to affected employees to raise any concerns they may have. n
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| Professional in Payroll, Pensions and Reward |
Issue 77 | February 2022
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