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COVID Regulations and Employee Misconduct - What are your options as an employer?

A care home manager has lost her employment tribunal claim for unfair dismissal following her attendance at a party held in contravention of government COVID restrictions.

What happened?

The care home manager, T, had been working for her employer for 15 years and there had been no issues with her conduct or performance. She was, as the tribunal said, “in a position of authority…and responsible for the safety of residents and staff”.

On 5th November, the government introduced the 2nd lockdown, with associated restrictions, which lasted till 2nd December.

While on annual leave (from 18th November to 7th December), T received an invitation from P, a care assistant, to a birthday gathering at P’s house. She attended the gathering on 28th November, as did six other more junior members of staff.

T did not inform her employer about the party and did not arrange for COVID testing for the members of staff who had been there. They weren’t tested at all until the next routine test, which was Tuesday 1st December, three days later, during which time some of them had returned to work.

Two days after the party, her employer got an email about the party, with a video attachment that had been seen on social media. T could clearly be seen in the video, which also showed that there was no PPE being used. Neither was any social distancing being observed.

When T returned to work on 7th December, she was told that she was being investigated by the HR department concerning her attendance at the party.

During the investigatory meeting, she was asked why she had not taken action to prevent the party going ahead. She said that it had not occurred to her. She named the members of staff who had attended and said that they had not been wearing masks. She went on to say that she had not thought about the government COVID lockdown rules, although she knew what they were, and that the staff members present at the party were in her work bubble.

Her employer raised the possibility of staff contracting COVID and the delay that had arisen before they were tested. She was also asked about why she didn’t stop the party or tell P that it could not go ahead as soon as she received the invitation. She said that she didn’t think she had the power to do so. At this point in the meeting, she was shown the video.

Two days after the investigatory meeting, T was invited to attend a disciplinary meeting. The allegation was broadly that “she had attended a staff party at a colleague’s house…which was in breach of Government COVID-19 guidelines and potentially brought the company into disrepute.”

She said that she wore PPE at the party and that she only took it off to have a drink, then put it back on. She said that others also did this. However, the video evidence contradicted this, and showed participants in close contact with each other and no evidence of social distancing.

Five days after the disciplinary meeting, T was dismissed with immediate effect, but with pay in lieu of notice. The reasons given were that she had:

1) seriously breached her employer’s trust and confidence in her by breaking government COVID lockdown guidelines and attending a house party without PPE;

2) potentially brought the company into disrepute, and

3) failed to stop the party and potentially endorsed others’ attendance by her own presence.

She appealed. With regard to the PPE, she again said she took her mask off to drink and put it back on again afterwards. She admitted that the party put residents at risk but said they were put at risk every day anyway.

The appeal panel noted her good work record and length of service, and that the other members of staff who had been present at the party were not dismissed. However, such was the seriousness of her conduct that they could not uphold her appeal and her dismissal stood.

The tribunal’s decision

The tribunal considered the reason for T’s dismissal and concluded that it was her conduct. They then looked at whether her employer acted reasonably in all the circumstances in treating that conduct as a sufficient reason to dismiss her.

T had breached Government guidelines and her employer’s infection control practices without good reason. Her attendance at the party, even if only for a short while, had given support to other more junior staff in their breaches. Participants had not observed social distancing and no PPE had been worn, which exacerbated the situation and increased the risk.

T ought to have been setting an example to more junior staff and not participating herself. She ought to have tried to stop the party happening in the circumstances. She did not report the event to her employer, and she did not suggest COVID testing for the relevant staff immediately upon their return to work.

T’s comment that the care home’s residents were at risk anyway came across as flippant and “unbecoming of a person in her position of seniority and authority”.

For these reasons, they ruled that her dismissal had not been unfair.

What employers should consider

In an environment where the threat of COVID is still very much in evidence, and may continue to be for quite some time, a concerted effort to follow government guidance on social distancing and PPE is not just encouraged but expected of all employees, particularly those who, as in this case, are working with extremely vulnerable groups. T was, by her own admission, guilty of misconduct – however, but for the COVID factor, she may have escaped dismissal, since she had a long and unblemished employment record beforehand. Her conduct exposed elderly and vulnerable people to a significant risk of harm and greatly increased the seriousness of her conduct. In the light of these factors, her employer’s action was within the band of reasonable responses.

This case shows that employment tribunals are definitely taking COVID regulation breaches seriously; of course, this cuts both ways, as employers who breach the regulations may find that tribunals are equally firm with them.

The risks of social media

In its judgment, the tribunal also noted that “the video showing the party and attendees was posted on social media. Whether it was done privately or not, there was the potential for it to be shared more widely, thereby risking the employer being brought into disrepute.”

This aspect of the case highlights once again the dangers of using social media in an uncontrolled way. Regardless of the foolish action in filming themselves breaking lockdown rules, to post it to social media, where even private content can quickly escape its bounds and become public, as has so often been the case in recent years, is irresponsible in the extreme. Public feeling about COVID restrictions and breaches thereof was running very high at the time and if T’s employer had been implicated in such an egregious breach, the consequences could have been serious indeed.

How the employer handled the matter

The employer, as noted by the tribunal, did everything right when it came to handling the issue with T. They carried out a reasonable and proportionate investigation and acted in a procedurally fair manner. Although there was a difference in how T and the more junior staff were disciplined, the employer justified this according to the respective seniority and authority levels of the people concerned.

The employer took T’s clean disciplinary record and length of service into account, but this was insufficient to overcome the seriousness of her conduct. This is understandable and reasonable in light of the pandemic and the disregard T demonstrated for the risk to elderly residents’ lives.