Care home worker accused of lying about Covid symptoms was constructively unfairly dismissed, tribunal rules

Court also heard claimant’s manager shouted at him and threatened to be ‘on his back every five minutes’

An employee was constructively unfairly dismissed after an argument with his manager during which he was shouted at and accused of lying, a tribunal has ruled. 

The Watford employment tribunal found that Kestrel Grove Nursing Home breached implied terms of trust and confidence after a manager accused a domestic assistant of lying about his absence due to Covid symptoms and threatened to be “on his back every five minutes”.

It found that the care home was unable to identify a fair reason for the dismissal and that the allegations of dishonesty “played no part in the claimant’s dismissal”.

Domestic assistant Mr G Galang started his employment with Kestrel Grove on 31 October 2006 and had been described by his manager, Mr Tripp, as a “good worker”.

In late March 2020, Galang experienced symptoms related to Covid-19 and was advised to self-isolate from 23 until 29 March, receiving an isolation note from his GP because of “suspected Covid-19”. He continued to feel unwell, and received a second note from his GP advising him to isolate from 6 April until 12 April. He was also issued with a Fit Note from his GP covering 7 April 15 April, which was then extended until 29 April. 

He returned to work on 5 May. That day, Galang noticed that staff working in the kitchen were not wearing facemasks. He asked a colleague about it, who said it had been like that for a while. Galang then said he would raise the matter with the matron and added jokingly that if this was not actioned by the matron he would make a complaint to the Care Quality Commission (CQC), which regulates care homes.

Get more HR and employment law news like this delivered straight to your inbox every day – sign up to People Management’s PM Daily newsletter

The same day, Tripp heard that Galang had threatened to report the care home to the CQC and decided to speak to him to explain the guidance on PPE and discuss his sick leave. 

Galang told the tribunal that he was scared when Tripp questioned him about his conversation with his colleague and initially denied it but then, when Tripp became angry and started shouting at him, admitted that he had made the remarks about contacting the CQC. 

Tripp produced Galang’s documents relating to his absence from work and, according to Galang, continued to shout at him, pointing his finger in Galang’s face and calling him a liar. Galang also told the tribunal that he was questioned on whether his absence was for a genuine reason and was accused of lying to his GP about having Covid and falsifying doctors’ notes. He also said Tripp told him he was “not a loyal employee”, and that he was ungrateful, referring to previous help Galang had received from the company such as loans and holidays.

At the end of the meeting, Tripp warned that going forward he would be “on his [Galang’s] back every five minutes”. 

The tribunal heard that Galang felt “belittled and hurt” by this and told Tripp that, if he had made a mistake, disciplinary action could be taken.

After the meeting, Galang went to his locker and took out his belongings. As he was clocking out of his shift, he told Tripp that he was leaving and in response, and in front of other members of staff, Tripp told him that he did not care. 

During the tribunal, Tripp denied Galang’s version of events. 

Following the meeting, Tripp sent a letter to Galang, dated 5 May, referring to the meeting and issuing an “informal warning” in respect of “unsatisfactory conduct for falsifying sick notes and absenteeism from work… [and] by talking to a colleague about reporting the home for breach of PPE when you should have discussed this with management”.

On 7 May, Galang sent his resignation letter to the care home which said he “was treated appallingly”.

The tribunal found that there was no investigation into allegations of dishonesty and there was no reason to suspect dishonesty on Galang’s part. 

The tribunal also noted that, while it may be reasonable for an employer to raise serious allegations with employees, there was “no reasonable and proper cause for Tripp to shout at the claimant, to point his finger in the claimant’s face”, which the tribunal said were aggressive behaviours. 

In addition, it said there was no reasonable and proper cause for Tripp to make Galang fear his working life would be made difficult by Tripp being “on his back every five minutes”. 

As a result, Judge Skehan ruled that Tripp’s actions constituted a breach of the implied term of trust and confidence which meant a breach of the employment contract, and considered that the care home was unable to identify a fair reason for the dismissal. 

Commenting on the case, Martin Williams, head of employment at Mayo Wynne Baxter, said that any concerns raised by employees about health and safety needed to be heard in a considered way, advising that maintaining a calmer head and following proper process could save “the embarrassment of the employer being held to account in the public forum of an Employment Tribunal”.

Yvonne Gallagher, partner at Harbottle & Lewis, added: “Where an employer behaves in an aggressive manner and makes unjustified assertions of dishonesty along with threats to the employee, the employee can succeed in claiming that the conduct amounts to constructive dismissal.”

Kestrel Grove Nursing Home and Galang have been contacted for comment.

A remedy hearing for this case is due to be set.