What can an employer do when an employee breaks the current Covid rules?

With the re-imposing of restrictions and heightening of sanctions imposed on those who do not self-isolate when instructed, employers need to consider whether and to what extent it is appropriate to take action against employees who break the rules.

What happens if an employee wilfully breaks the rules?

If an employee

• is wilfully refusing to adhere to social distancing within a workplace;
• has attended the workplace when they have received an instruction to self-isolate; or
• has attended the workplace when they have tested positive for COVID-19

an employer will be well within its rights to view the situation seriously and consider the issue as a serious disciplinary matter. Such behaviour will in most circumstances amount to gross misconduct considering the risk the individual will pose to the health and safety of his or her colleagues, the employer’s workplace and reputation.

Non-compliance with an instruction to self-isolate from the NHS teams north and south of the border may also be considered a disciplinary matter even if the employee is not physically present at the workplace, where the employer has made it clear that employees are expected to comply. It has been clearly communicated to the UK public that they are required to comply with the NHS Test and Trace instructions and significant financial penalties may be imposed for non -compliance. Employers are also required to support the Test and Trace service by requesting that workers self-isolate if they have been asked to do so and supporting workers when in isolation. An employee who refuses to comply with such a request will be failing to obey a reasonable management instruction.

What should employers do in situations which are less clear cut?

Employers are, however, likely to face less obvious situations. For example, an employer finds out that an employee resident in Scotland hosted a gathering of friends at their home or in England, met with a group of 8 people instead of 6. Would this give the employer a right to discipline the employee? And does it make a difference if the employee is working from home or at a workplace?

The general position is that employer does not, as a matter of course, have jurisdiction to discipline someone for what they do in their spare time, even if their actions amount to criminal misconduct, unless ‘in some respect or other it affects the employee, or could be thought likely to affect the employee when he is doing his work’ (Singh v London Country Bus Services Ltd 1976 ILR 176 EAT). For example, an employer is unlikely to be entitled to discipline an employee for speeding at the weekend unless they drive as part of their role for the employer or there is a risk of reputational damage to the employer as a result of press coverage. That said, we consider there could well be scope for non-compliance with social distancing to amount to a disciplinary matter. However, the circumstances in which such disciplinary action will be considered reasonable will be fact dependant.

For example, disciplinary action is likely to be justified in such situations if the individual who has flouted the rules

• is physically attending a workplace therefore putting the health and safety of their colleagues at risk
• is unable to attend work because of the breach and thereby disrupts the employer’s business
• has posted ill-judged photographs on social media, surrounded by large groups of people and has identified themselves as an employee of the employer

Such behaviour takes us into misconduct territory on the basis that the employee’s behaviour could jeopardise the employer’s workplace, employees, customers and reputation. 

This does have the potential to create a two-tier workforce with different rules applying to those who can work from home and those who are attending an employer’s premises. As we know, consistency of disciplinary treatment is important and therefore an employer may decide that the prevailing circumstances necessitate all employees being treated in the same way for alleged social distancing breaches, provided that the employer’s position on breaches of the social distancing rules has been made clear.

Key steps for employers

We recommend employers giving some thought now to how they would handle social distancing or self-isolation breaches and issue a communication to staff to put them on notice of the action that may be taken should they fail to comply. This will help to leave employees in no doubt as to where they stand and ensure that fair notice, one of the cornerstones of fairness for disciplinary action, is satisfied.

Our overall view is that each situation is likely to have to be assessed on its own facts. There is an obvious distinction between someone who hosts 7 family members for Sunday lunch versus someone who attends an illegal rave with 500 other people. The rules are challenging, at times difficult to interpret and are impacting the very fabric of our normal lives. Balance is key while ensuring that the safety of staff, customers and the wider public is maintained.