Forklift driver who mistakenly broke Covid self-isolation guidelines by attending work was unfairly dismissed, tribunal rules

Judge decides no reasonable employer would reach ‘irrational’ decision to dismiss despite blameworthy conduct by claimant

A forklift driver who was dismissed after he attended work under the assumption that his son was faking Covid symptoms was unfairly dismissed, a tribunal has found. 

Mr D Lewis, who had been employed by The Benriach Distillery Company for 23 years before his dismissal, was accused of being “highly irresponsible” and “reckless” by the company’s HR team when he attended work while his son awaited the results of a Covid test. 

However, the tribunal ruled that Lewis had nothing to gain by pretending his son didn’t have Covid because he would have been paid while he was self-isolating, and that he did not knowingly breach Scottish government guidance. 

The tribunal found that Lewis, who began working for the Newbridge-based whisky distillery as a forklift truck driver in 1998, had a clean disciplinary record and excellent attendance. On 8 February 2021, Lewis’s line manager emailed Simon Briggs in the HR team to explain that Lewis’s son had taken a Covid test the previous Saturday because he had a cough, to which Briggs responded that Lewis was “highly irresponsible” and “reckless”  for attending work when his son “must have been showing symptoms”. 

Briggs instigated an investigation and held a meeting with Lewis and other members of senior leadership on 10 February. During this meeting, Lewis was asked why his son took a Covid test, to which he replied, “to be honest, I didn’t think he needed a test”. 

He explained that he didn’t think his son had Covid, but took him for a test after some of his friends tested positive and he was complaining of a headache. Lewis chased the test results the following Monday because his son had lost his sense of smell, and the NHS told him that results can take six days, but that he must self-isolate in the meantime. 

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Lewis also said he did not self-isolate before this because his son was not showing symptoms – as per Scottish Government guidance –  and just had a “sore head”. On 17 February, Lewis was suspended on full pay because of a “serious allegation” against him, and was also invited to a disciplinary hearing on 23 February, having committed “a serious breach of health and safety processes”. 

The hearing, which was chaired by Laura Grew, the company’s strategic planning and procurement manager, and attended by Briggs, heard that Lewis’s son had never shown symptoms of Covid prior to Lewis’s attendance at work on 8 February. 

Lewis said he thought his son was “at it” [meaning joking] and they fell out over his suspicions. He also said his son did a “mock cough and started laughing” on Sunday and was still not showing symptoms, so Lewis attended work. 

On 25 February, Lewis was dismissed without notice with immediate effect because his “explanation [for not self-isolating] was not acceptable” and that the company’s confidence in Lewis had been “completely undermined” because he knowingly breached company and government guidelines. 

Lewis appealed the decision on 2 March, and the tribunal heard that he again said he would “never knowingly come into work with symptoms”, and it was accepted that there was no clear guidance on isolating while awaiting a test result. However, his appeal was not upheld because his son subsequently tested positive, and Lewis was clearly worried that the test may come back positive despite his assumptions his son was faking it because he chased the result. 

He told the tribunal that immediately after his dismissal he “frequently broke down in front of others” and was concerned for his mental health. Between February and March, Lewis was diagnosed with anxiety and put on medication. 

He obtained alternative employment following his dismissal, but had to leave because of his “worsening anxiety issues”. Lewis told the tribunal that he is still unable to face people because he feels “embarrassed that he has been dismissed” and continues to get upset in front of family and friends. He said that he remains concerned for his mental health, and that his concentration is poor which affects the interviewing process. 

Judge Young concluded that The Benriach Distillery Company’s decision to find Lewis guilty of gross misconduct was “irrational” and said the decision was one “no reasonable employer could have arrived at”. Additionally, if there was misconduct, Young said it lacked the character of gross misconduct because it was “neither intentional nor gross negligence”.

Young added: “Further, the dismissal was unfair given the involvement of Simon Briggs throughout the proceedings; his prejudgment of [Lewis’s] conduct; and availability of those views to dismissal and appeal managers.”

However, the tribunal also ruled that there was some “blameworthy conduct” on Lewis’s part because he went into work against the possibility that the test might be positive. 

Paul Holcroft, managing director at Croner, said the case highlighted the importance of not jumping to conclusions when determining the outcome of disciplinary matters. 

“The organisation was right to invite the employee to an investigation meeting as soon as it discovered he may have been in breach of self-isolation rules. However, had it carried out an effective evaluation of background factors relating to the case and taken time to fully understand the employee's version of events and explanations, it may have been able to avoid tribunal claims being raised.”

Alan Lewis, partner at Constantine Law, said that in a dismissal for misconduct, the law says that for the dismissal to be fair, the employer must genuinely believe there was misconduct. That belief must be based upon reasonable grounds after a reasonable investigation.