Failing to Adhere to Covid-19 Hygiene Rules – How Do I Handle It?

For October 2020, we have asked the employment team at Tughans to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal from time to time with the less common place disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination or constructive dismissal or some other serious difficulty.

I am a Human Resource Manager in a small company. A number of colleagues have complained about an employee who does not follow social distancing and they say there is no evidence that he washes his hands as required. The colleagues are now refusing to work with this employee, and the atmosphere is dreadful. Can I dismiss the employee?

I would suggest before taking any formal action against this employee, you properly investigate the nature of the complaints and whether the staff have had appropriate training on the requirements to assist in stopping the spread of Covid-19. For example, has the Company undertaken any specific training: have you issued guidelines/directions and undertaken a risk assessment?

Before considering any official steps, you should also consider whether anyone has spoken to the employee concerned and advised him of these requirements. The Company should be able to demonstrate that the employee is aware of the requirements and his alleged failings and has been allowed an opportunity to improve his behaviour. It would also be helpful if you could show that the employee, having been advised about his conduct and its impact on his colleagues, has not offered a valid reason for failing to observe the requirements, and he has been warned also about the possible consequences if he fails to comply with requirements.

The Company may be able to consider dismissal of this employee if the matter is so serious that there is a fundamental and irretrievable breakdown in the working relationship between the employee and his colleagues. While such a ground may be a fair reason for dismissal, it would not be fair to simply dismiss the employee on that ground without first carrying out a full investigation, following a fair process and considering alternatives to dismissal e.g. can the employee’s behaviour improve with training and further advice, might mediation help, or would it be possible to allow him to work from home for  a period or move him to another part of the Company? I appreciate you have said you work in a small company and this latter course of action may not be possible, but you should demonstrate that you have considered alternatives before moving to dismiss this employee.

You should also observe the 3 step dismissal process and, whilst I have suggested that dismissal due to an irreparable breakdown in the working relationship may fall within a range of reasonable responses, a failure to follow the 3 step dismissal process, including allowing the employee the right of appeal, will render his dismissal automatically unfair.

If you have you gone as far as amending the Company’s disciplinary policy to identify as misconduct a failure to observe government guidance of good social distancing or regular hand washing, it could be that you have an alternative ground on which to fairly dismiss the employee - misconduct.  If you have already disciplined the employee, dismissal may be fair in the circumstances, but I would normally advise against dismissal as a first disciplinary sanction, unless there is evidence of gross misconduct. Again, it would be necessary to examine the allegations of misconduct; the steps and time taken to allow the employee to improve his behaviour; previous warnings and consequences relayed to him and as mentioned above, whether the Company’s disciplinary  policy and process is sufficiently wide to allow allegations of behaviour of this kind to constitute misconduct under that policy, which if sufficiently serious  and repeated could allow the Company to move to dismiss him. As you will know, conduct can constitute a fair reason for dismissal and the Company should follow the 3-step dismissal procedure, and their own disciplinary policy, in the dismissal process.

From the information available, it appears to me that it would be wise to speak with the employee again and advise him of the consequences of his conduct before considering any possible dismissal. I appreciate you may have already done so and there is no prospect of an improvement in the working relationship. Of course, all this should be properly documented to reduce the risks of a finding of unfair dismissal, assuming the employee has at least one year’s service. Please check the Company’s internal policies and the employee’s contract to review the required process, his right to notice/pay in lieu and other contractual requirements should the Company move to dismiss the employee on either of the grounds discussed above.