Jeremy Coy, Employment lawyer at Russell-Cooke, explains what employers can 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.
But before explaining more about employers’ rights, Jeremy Coy, shares an interesting insight into the Royal Household and The Queen as an employer
In September, it was reported that the Her Majesty the Queen had asked 20 staff members to remain with her at Sandringham to form a ‘festive bubble’ over the holidays to support herself, Prince Philip and other members of the Royal Family. In other words, as an employer she appeared to be asking her employees to self-isolate from their own families for four weeks. The staff members in question refused her demands, reportedly leaving her feeling ‘furious’.
This raises the question of whether an employer has the right to ask an employee to sacrifice their personal time in order to fulfil their professional obligations. In this case, it is unlikely that the employees would have been committing a disciplinary offence. Employees have an implied duty to follow reasonable and lawful management instructions, but imposing stringent restrictions on what employees can do outside of working hours would not normally be a reasonable or lawful instruction. If the reports are true the Queen would therefore probably only have been able to ask the Royal Household staff to make this sacrifice, rather than to require it of them.
Attempting to require them to stay away from their families during this period would raise questions under employment law which would be influenced by Human Rights Act considerations (the right of an employee to a private life and family life) and might well be a breach of trust and confidence. It is therefore unlikely that an employee would be committing a disciplinary offence in refusing to make this sacrifice.
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 fine? 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 justified by caring duties or connected to their own disability they might have a discrimination claim if they are disciplined.
- 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 fitness 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, you can in certain circumstances. You will need to consider the following:
- What is the employee’s length of service. If the individual has been employed for less than two years they will not have the right to file 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 difficult to navigate the novel regulations and rules that seem to appear on a weekly basis. The employment team at Russell-Cooke can provide expert legal advice to help you find your way.
Jeremy.Coy@russell-cooke.co.uk
https://www.russell-cooke.co.uk
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