Partner & Employment Lawyer
With differing lockdown restrictions developing throughout the UK, it is possible that some employees may not be fully adhering to the imposed rules.
In theory, it is possible for an employer to take disciplinary action against an employee for breaching the Government’s COVID-19 rules and restrictions outside of the workplace. Indeed, as a general rule, the actions of an employee outside of the workplace can be considered misconduct if there is a genuine connection to the employment relationship.
By way of examples, disciplinary action could be taken against an employee for flouting COVID-19 restrictions outside of work in the following scenarios:
- The employee is coming into the workplace after breaching the rules, potentially putting the health and safety of other staff at risk;
- The employee cannot work/come into the workplace (if this is necessary to carry out their work duties) because they breached the rules, causing disruption to your business; and/or
- The employee has posted comments and/or photos online showing that they breached the rules, and these posts can be linked to their employment, causing reputational damage to your business.
Owen John, Partner and Employment Lawyer at Darwin Gray, outlines important legal considerations when dealing with an employee who you suspect has breached the COVID-19 rules outside of the workplace:
1. Before starting the disciplinary process, consider whether this action is disproportionate to the circumstances. Do you know for sure that the employee has breached the rules? Or is it a suspicion? In the first instance, you may wish to have an informal conversation with the employee about their conduct/suspected conduct and explain your concerns. Remember to keep a note of this conversation. This approach could save you from having to deal with an employee grievance at a later date, if they think immediately resorting to disciplinary action was unfair in the circumstances.
2. If formal disciplinary action is necessary because of the nature and certainty of the breach, then make sure that you follow your disciplinary policy and procedure. If you haven’t already, update your policies and procedures to deal with COVID-19 related matters, including breaches of the rules both in and out of work, and the consequences of doing so. Ensure that your staff are aware of the changes in your policies and procedures, so they cannot claim that they weren’t aware of the consequences of their actions and that it could lead to disciplinary action being taken against them at work.
3. If you uphold the allegation of misconduct against the employee, then ensure that the sanction is proportionate to the situation. Depending on the breach, an informal warning or a formal written warning could be sufficient. However, if the breach of the Covid-19 rules is so serious that it amounts to gross misconduct, then you could have a fair reason for dismissing the employee.