Written by partner Paul Reeves, professional support lawyer Leanne Raven and trainee Louisa Blundell.

There is no doubt that COVID-19 has posed unprecedented challenges to employers. One challenge is how to deal with an employee who doesn’t follow public health guidance or breaches the coronavirus regulations.  An employer deciding whether to take any disciplinary action, and what type, is likely to consider whether the employee’s actions occurred in the context of their employment, whether they put at risk the health and safety of colleagues and the circumstances surrounding the situation. 

We’ve seen recently a number of stories in the media about individuals who have breached regulations whether it be the SNP MP Margaret Ferrier flouting self-isolation rules or England footballers breaking the “rule of 6”.  These may well be issues coming to a workplace near you – so how should employers deal with it?

Misconduct or gross misconduct?

The term gross misconduct generally throws up visions of employees committing theft, physical violence or harassment. However, in the current covid-19 context an employee attending the workplace and interacting with colleagues during a period where they should be self-isolating, and doing so without a reasonable excuse, is likely to amount to gross misconduct (as well as a criminal offence under the self-isolation regulations). That’s because it will amount to a serious breach of health and safety rules given it endangers others and it may also bring the organisation into serious disrepute if it is reported in the press or clients/customers become aware.  

Breaches of health and safety or bringing a company into disrepute may be examples of gross misconduct which are specifically covered in disciplinary policies or even employment contracts.  Even when they are not, they may still be considered as a reasonable basis for a finding of gross misconduct.  (The relevance of an action being deemed to be “gross misconduct” – as opposed to just misconduct – is that this may justify the employer dismissing the employee without notice.)

Let’s take a different scenario. How should an employer treat a situation where, for example, an employee uploads a photo to social media of themselves attending a party with 20 other people?

This would clearly be against the “rule of 6” but should that lead to disciplinary action by the employer? Generally, conduct outside work is only considered misconduct if it is connected in some way to the employment relationship. On the face of this scenario, employers may consider that this does not constitute misconduct. However, if the employee has stated on their Facebook profile that they are employed by X then this may change the landscape. The actions of the employee are then linked to the employer and may cause reputational damage. If the attendees of the party are fellow employees, this could further muddy the waters.

As would be expected in this unprecedented time, there are a number of grey areas.  The above scenario may not automatically give the employer justification to dismiss on the grounds of gross misconduct and the employer should always ensure a reasonable, proportionate and fair response.  Another layer of complexity is added for those in regulated industries, where an employer may be under a duty to report to its regulator any employee offences (which may include breaches of the coronavirus regulations).

Each type of breach will be fact specific and employers would be well advised not be rash in painting all such breaches with the same brush. Dismissing in haste without properly considering the facts and consequences could lead to subsequent employment tribunal claims.

Considerations for employers

Employers should ensure that employees are well versed on what is expected of them in the current climate as well as the individual’s legal obligations (e.g. notifying their employer if they are required to self-isolate and would otherwise be expected to attend a place of work). Ensuring clear communications supported by training or policies, where appropriate, should decrease the risk of issues arising in the first place, and if they do arise, strengthen the employer’s position in potential claims.

Employers should also take steps to ensure that they impress upon employees their expectations with regard to conduct, the use of social media and corporate image. A robust social media policy is recommended.

Finally, employers should take care to ensure that disciplinary rules are updated to give examples of behaviours that they will consider to amount to gross misconduct.  Employees should be made fully aware of the changes and directed to the relevant parts of the policies.