4 minute read
Russell-Cooke looks at Covid rules in the workplace
Working out the rules at work
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In the midst of the pandemic what can employers do if employees breach Government guidance or rules outside of work?
As cases of COVID-19 continue to rise, new rules on what people can do are being introduced and will likely continue to change. With various areas of the country entering different levels of restrictions, employers will need to address issues that arise from employees who breach lockdown regulations, even if they do so outside of work.
As an employer, can you discipline your staff for what they do in their own time?
The short answer is yes, but usually only if an employee’s behaviour has, or could, put their colleagues at risk. You have a duty of care to all your employees. When your staff come into contact with one another, an employee who breaches lockdown rules could put their colleagues at risk.
There have been instances of employers disciplining employees for their actions outside of work. For example, when a staff member makes inappropriate or offensive comments on social media or engages in criminal conduct.
Your employees have responsibilities under health and safety law to cooperate
with you in complying with your legal obligations. Those employees who act irresponsibly outside of work and risk spreading the virus at work could breach these responsibilities.
What questions should you consider when deciding whether or not to discipline an employee who has breached COVID-19 rules?
What is appropriate will always depend on the facts of the case, including the nature of your business, the employee’s role, and the restrictions that applied at the time of their actions. Consider the following before taking action:
• Has your employee breached Government guidance or the law? If it is the latter, then it may be easier to justify dismissal or other disciplinary action.
• What did the employee do and why did they act in this way? Did they fail to wear a mask and receive a fi ne? Did they attend a large social gathering?
Did they break the rules exceptionally to look after a vulnerable loved one? If an employee claims that the breach was justifi ed by caring duties or connected to their own disability they might have a discrimination claim if they are disciplined.
Jeremy Coy
• Did you issue up-to-date guidance and were your staff aware of it? It is good practice for employers to inform employees of their expectations each time
Government guidance and rules change. If you have issued clear rules you may also consider whether the employee’s actions are a failure to follow reasonable instructions.
• Have the employee’s actions harmed you or your business’ reputation?
Are there photos on social media, for example? If so, this is likely to be relevant in deciding on any disciplinary sanction.
• Is the employee a regulated professional (like a lawyer, a doctor or an accountant)?
If so, a breach of the rules could impact on their fi tness to practice.
• Have you acted consistently? If there is evidence that breaches by other employees have gone unpunished, there could be a greater risk of an unfair dismissal claim or an internal grievance if action is taken against others in similar circumstances.
Can you dismiss an employee who breaks the rules?
Again yes, in certain circumstances. You will need to consider the following: • The employee’s length of service. If the individual has been employed for less than two years they will not have the right to fi le a claim for unfair dismissal. Depending on the circumstances, however, they may have claims for discrimination.
• Has the employee been given warnings either directly following previous conduct or in the form of employer guidance sent to employees as the rules change in their local area?
• What policies do you have in place? In light of the pandemic, employers should consider revising a number of their policies, including disciplinary, health and safety and home working policies, to make it clear that breaking the rules could result in disciplinary action.
In these unprecedented times it can be extremely diffi cult to navigate the novel regulations and rules that seem to appear on a weekly basis. The employment team at RussellCooke can provide expert legal advice to help you fi nd your way. n
Jeremy.Coy@russell-cooke.co.uk russell-cooke.co.uk
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