Multiple self-isolation periods by employee suspected of flouting Coronavirus rules

Posted in : Seamus Says - Employment Law Discussion on 8 January 2021
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Coronavirus; Absence Management

"We have an employee whom we suspect of flouting coronavirus rules, as she's had to self-isolate for coming into contact with someone infected with COVID-19 on four occasions so far". So she keeps meeting people that have the virus. "Do we have to discount this absence or can we include it for absence management reasons?" 

Seamus: Well, we know that we're in very difficult and tricky times, extraordinary times, at present with COVID, and it may be that you just have someone that is very unlucky and have had to self-isolate on four occasions.

You would raise an eyebrow I think, although we were talking briefly before, Scott, in relation to some localities in Northern Ireland where maybe they're saying that 1 in 40 people might have COVID. And you can imagine the volume and number of people that are having to self-isolate as a result of that where the figures are very tight.

Scott: That's where I live. I've rarely crossed the door. I have to send my mother-in-law to get my paper. It's too dangerous for me.

Seamus: But the other side of it is that taking any disciplinary action against an employee should always be justified. We've lots of various examples of potential misconduct in the workplace as a result of COVID-19. But there are some instances that are less clear-cut when an employee has been engaged in behaviour outside of the workplace. That tends to be what we're looking at. It's not so much the behaviours that happen internally because of they're at work. It's what happened outside the place of employment.

And in general, the employer is not really entitled to take disciplinary action for what an employee does in their own time unless those actions are having a negative impact on the employer or the ability for the employee to do their work.

So looking at it sort of generally where COVID-19 is concerned, disciplinary action I think could be justified in and around three scenarios.

One, where you're physically attending a workplace and therefore you're putting the health and safety of colleagues or residents or whoever it is at risk.

Two, where you're unable to attend work because of a breach, and thereby you're disrupting the employer's business, and that would have to be at a high-end level. You're looking here at four occasions. You'd be wanting to test the legitimacy of that, although I appreciate that that's difficult at the minute because the GPs aren't providing any sick lines and things like that.

Or the third one where perhaps somebody has posted ill judged photographs on social media surrounded by large groups of people, and they can be identified as an employee of that employer.

I think those sorts of behaviours do take us into the misconduct territory and could put the employer's business, their customers, their clients, or their residents at risk and certainly could potentially damage the reputation of the employer also.

But it is worth saying that you should tread carefully, especially when you can't prove that the employee has flouted COVID rules. A person could test positive for COVID simply after a trip to the supermarket, as you were saying there, Scott. It just doesn't happen through social gatherings.

So take a cautious approach. Take a reasonable approach. Four is a lot, but I think it's worthwhile having that conversation with the employee and getting to the bottom of how the periods of self-isolation are happening. 

Scott: Yeah, there are issues there just around people coping and behaviours. It's one of those difficult conversations that you might have in the past, take away COVID, where somebody simply isn't looking after themselves or they seem to have an alcohol issue or whatever it happens to be. You're in that kind of area perhaps, but I can understand where some employers are saying, "I'm just fed up. This person is never at work because they're always self-isolating because they keep going out". And that would become quite infuriating. I would imagine that's what's behind that question that came in there.


This article is correct at 08/01/2021

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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