Taking disciplinary action against an employee breaching COVID-19 restrictions outside work

Posted in : Seamus Says - Employment Law Discussion on 6 November 2020
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Coronavirus/COVID-19; Disciplinary action; Breaching COVID-19 restrictions

Q: Are we within our rights to take disciplinary action against an employee who is breaching the COVID restrictions whilst they are not at work?

Scott: "We employ care assistants and have informed them that we expect them to act in an appropriate manner in line with the restrictions so as not to put anyone in their care at risk". In the situation here is the employer saying, look, we're sticking by our part. We've got vulnerable people in our care, as well as employees who could catch it and so on. But we know that there are certain people who are going out there and they're going to parties or whatever at the weekend, and they're not being COVID safety aware. So can they take action against those individuals? And if they do, should it be on the basis of some other substantial reason or is that a disciplinary issue, because they've issued a warning?

And going back to that poll just to keep it going a little bit longer, Seamus. Make it more complicated for you, going back to that poll there about would it matter whether it's in the disciplinary procedure, or not, because we have 50% of the people at the start who did our poll didn't actually upgrade their health and safety or disciplinary issues or procedures, sorry.

Seamus: I mean, I do think that it is appropriate. And if you are working in a certain setting where you're working with vulnerable adults like this is in a care setting. And I do think that it's appropriate for the employer to ask their employees to be, you know, very aware of what the guidance is and to follow it. I don't think that there's any problem with the employer asking them to do that.

Look, these things are always balanced off in relation to a person's right to their private life and what they do in their private time. And one of the issues would be though that if they are working within this setting if they are doing something or undertaking activities in their private time that could put, you know, residents in a care home, or for people that they are looking after at risk. And right up to if they're elderly. I mean, those are the most vulnerable people in our society, right up to, you know, these people may be contracting COVID, and subsequently dying or having to be under serious medical treatment. So it is a serious issue.

And I think that absolutely just what I mentioned earlier on that it's really important that staff are made aware of what the expectations are and what the potential ramifications are so back to that point of making sure that you have a policy and procedure in place and that your employees are made aware of it is important.

Focusing just on the fact that these are actions that are not taking place in work. And, you know, the contract will generally govern the internal aspects of the employment but that extends beyond the workplace, certainly, if they were wearing a uniform at the time. So if they were working for an organisation and they were wearing the organisation's uniform, and they were taking these actions that were in clear breach whilst wearing the uniform, there's certainly the concern of bringing the business or the organisation in disrepute. Or alternatively, if they were maybe attending events, parties, or doing things that they were putting up on social media, that could also raise concerns for the employer because the threat and the risk would be very real of them coming into work the next day.

So I do think that there's certainly an ability for the employer to look at disciplinary proceedings if it was such a serious matter that something came out and later on that the someone had got sick, and that was as a direct result of somebody that had a positive test and then decided to come on in to work. I do think that those are matters that you could take the employee to task on, and there could be certainly some other substantial reason if it's not set out within the disciplinary policy and procedure, or it doesn't fall within the realms of that, you are looking at some other substantial reason, or you know, fundamentally, it's a breakdown of the trust and confidence between the parties.

And so, you know, I do think that that even if there isn't something in writing if it's so obviously serious and my other thoughts go to what would be the mind of a tribunal in this setting as well. I am looking at you know reductions in terms of, you know, even if it was a failure to follow certain procedures or what a tribunal was looking at in compensation. They may reduce that down to zero on the basis of the person being responsible for their own actions. So I mean I wouldn't be rushing to say to everybody if something happens, get into a disciplinary process straightaway. I think you need to carefully reflect. And there's an opportunity at the minute to look at your policies and procedures and possibly updating them.

Scott: Yeah, there is that other option that we have under the 96 orders to look at some other substantial reason, which to some extent might be easier and those that were the Annual Review yesterday, we had Mark McAllister talk about the Lafferty and Nuffield Trust case where they looked at an employee could be charged with serious sexual offense and they said look, this has reputational damage. It's not conduct. It's outside work. It's got nothing to do with your work but the impact it's had on us is such that there's nothing much we can do but terminate this contract. I wouldn't necessarily say that just because somebody does something outside work that that's the right option to go to, but you still even within Northern Ireland, we have to remind people. We still have 123 procedures, and it's automatically unfair if you don't follow those, so, you know, you still got to go through them and of course you're doing it remotely.


This article is correct at 06/11/2020

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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