New advice from an employment law firm asserts that employers do have the right to take disciplinary action against staff who do not comply to COVID-19 rules outside of the workplace.
Nelsons, an employment law firm, has expressed that it would be legal for employers to take action against individuals who were caught not complying with COVID-19 regulations outside of work.
This comes after various instances of workers facing disciplinary action or even losing their job altogether as a result of flaunting the rules.
Most notably, news presenter Kay Burley and three of her colleagues were taken off the air after being found breaching COVID rules in December 2020.
Melanie Morton, legal director and solicitor at Nelsons, says there are “legitimate questions” being raised about how far employers can reprimand staff for their actions outside work.
However, Ms. Morton stated that, ultimately, employers have a “duty of care to protect the health and safety of their staff”.
For workers who physically have to go into the office, this could mean that employers should be mindful of this duty through installing sanitisation stations, implementing strict social distancing measures and making a full effort to control the risks and hazards which could cause an employee harm.
When defining how far employers can go with disciplinary action, Ms. Morton continued:
It goes without saying that a team member who has attended work when they’re under a legal obligation to self-isolate is running the risk of facing disciplinary action, on the basis that they’re contributing to an endangerment of the health and safety of their colleagues.
However, employers may not feel quite as confident in how to address a situation where the employee is flouting the rules outside of work.
She outlines that what employees choose to do in their spare time is their own decision unless, as in the case of Singh v London Country Bus Services Ltd 1976, it affects the employee’s ability to do their work.
This could certainly be the case in situations where employees chose to disregard COVID-19 safety regulations and then return to their office which could put other staff at risk.
Ms. Morton gives an example of an “employee who openly attends mass gatherings and posts about it on their social media, which displays the name of their company, and continues to attend the office as normal”. By doing so, this has the potential to “not only endanger the health and safety of colleagues who share the same workspace but to potentially damage the employer’s reputation as well”.
However, the law firm warns that proving that an employee has not complied with the rules is not always an easy situation to navigate. It states that “where there are suspicions, formal disciplinary sanctions could be applied where an employer has reasonable belief – following fair investigation – that misconduct warranting action has been committed.”
When questioned about the optimal approach to take when an employee has seemed to have breached the rules, Melanie Morton stated:
Every case is different and each one would turn on its own facts, but employers should try to adopt a consistent approach with these types of issues and consider all the information available to them before making a decision as to whether a formal disciplinary matter needs progressing.
However, the advice suggests that the protocol surrounding discipling staff who have not followed COVID-19 rules should ideally be established and made clear to workers before the situation arises:
Given that, as a nation, we’re unlikely to be completely free of some level of social restriction for some time yet, it’s crucial employers take action in this matter before any such predicaments may arise.
We would recommend communication be sent to those still coming into the workplace that sets out the basic expectations on them – both in and outside of work – and the potential consequences of them not following the rules.
*This advice was provided by Nelsons, an employment law firm. Nelsons provides support to businesses, individuals and families with their legal and investment needs.
Monica Sharma is an English Literature graduate from the University of Warwick. As Editor for HRreview, her particular interests in HR include issues concerning diversity, employment law and wellbeing in the workplace. Alongside this, she has written for student publications in both England and Canada. Monica has also presented her academic work concerning the relationship between legal systems, sexual harassment and racism at a university conference at the University of Western Ontario, Canada.
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