Background:

The claimant was employed by the respondent from 1999 until his dismissal for gross misconduct in December 2020.   He had been promoted during his employment from General Assistant to General Manager in the respondent’s store.  In his role as General Manager he supervised some 80 staff.  This required the claimant to maintain high levels of responsibility and integrity in his duties.

The respondent’s store remained open during lockdown periods.  There was a risk assessment document circulated to all management including the claimant in Summer 2020.   This included self-isolation requirements for symptoms, testing positive or being advised through the Track and Trace Service.

The claimant stayed in a hotel in Ballymena on 10-11th September.  On 11th September there was a spike in the number of cases in Ballymena and the area was put into lockdown.  On 13th September the claimant was playing football and he subsequently developed a temperature.  The claimant put this down to sunstroke rather than anything else.  However, under cross-examination he did say that it could have been a symptom of Covid-19.   Despite this the claimant attended work the next day on Monday 14th September.  On 16th September the claimant’s ill-health was noticed by colleagues but the claimant stated that he had a ‘bit of a cough and a sore head’.  He states that his croaky voice was due to his singing of ‘Old Town Rock & Roll’.  The claimant booked a Covid test for 17th September but stated it was precautionary.  The Tribunal did not accept that considering that tests were only available for those with symptoms and that the claimant must have been aware that there could be a link between his symptoms and Covid-19.  Despite this, and against the guidance, the claimant attended work on Friday 18th September.

The claimant was informed that morning that he had tested positive for Coronavirus.  He immediately left work and telephoned a number of directors.   Donna Carlisle, the director, wished him well.

A disciplinary process was established regarding the claimant being present in the workplace with symptoms and whilst awaiting the outcome of a Covid-19 test.    The claimant adopted a position that he had done nothing wrong.  The claimant was suspended and he issued a grievance against that suspension.

A joint disciplinary/grievance hearing was constituted with an external HR professional acting as Chair.  The claimant was given all information in advance.   The claimant was found to have committed gross misconduct relating to health and safety matters and he was summarily dismissed.  The claimant brought a claim for unfair dismissal.

Outcome:

The Tribunal was satisfied that the statutory minimum procedure had been adopted.  On the substance, it was found by the Tribunal that the principal reason for the dismissal was the misconduct of the claimant. There was an issue raised when a Director of the Respondent well before this incident had stated that they wanted the claimant ‘out’.  Yet there was no nexus shown between that statement and the disciplinary procedure.   It was found that despite the claimant’s long service the decision to dismiss fell within the band of reasonable responses.  The lives of other staff and employees had been put at risk by the actions of the claimant.  Additionally, the claimant failed to display any remorse for his actions. Accordingly, the claimant’s case was dismissed.

Practical Guidance for Employers:

This case demonstrates the view of the Tribunal when it comes to issues arising from the failure to follow the guidance during the pandemic.  The guidance in 2020 (at the time of the claimant’s issue) was clear about when an individual should isolate and despite the symptoms, booking the test and waiting for the result the claimant continued to attend work.   This was clearly seen as a health and safety risk and the Tribunal has accepted this as the reason for the gross misconduct and as a fair reason for dismissal.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/