Is there action you can take if you discover an employee failing to comply with current COVID-19 rules when away from work?
Alongside how to appropriately handle employee actions and behaviours, whilst actively engaged with work for their employer, some law firms are looking at what, if any, action you can take if you discover employee non-compliance with COVID-19 rules when away from work.
The rationale for this is based on the employer requirement to have a “duty of care to protect the health and safety of staff”. Under current circumstances for workers physically attending the workplace, this includes actions such as: –
- providing sanitisation stations,
- making available appropriate PPE,
- the implementation of strict social distancing measures,
- maintaining operational procedures which identify and minimise risks and hazards which might bring harm to employees.
In the example of an employee attending work when they are required to self-isolate. The employee runs the risk of disciplinary action, on the basis they may be contributing to the endangerment of the health and safety of their colleagues.
How far employers can reprimand staff for their actions outside work?
Dealing with issues in the workplace or when an employee is directly operating on your organisation’s behalf is one thing. However, what you can do in the situation where an employee is found failing to comply with the COVID-19 rules outside work can be more difficult to determine.
In most circumstances, employers do not have jurisdiction to discipline someone for activities carried out in their spare time, unless ‘in some respect or other it affects the employee or could be thought likely to affect the employee when doing their work’. The case law behind this is in the employment tribunal Singh v London Country Bus Services Ltd.
You are unlikely to be entitled to discipline an employee for speeding at the weekend unless driving is part of their job role or there is a risk of reputational damage to your organisation because of press coverage.
Nevertheless, there is the potential for non-compliance with social distancing regulations whilst away from the workplace to become a disciplinary matter. You should always critically review the individual circumstances before taking formal action as these will play a significant part in determining whether you took’ fair and reasonable’ steps toward disciplinary action.
In the instance of an “employee who openly attends mass gatherings and posts about it on their social media, which displays the name of the company, whilst continuing to attend the office as normal”. This might have the potential not only to “endanger the health and safety of colleagues who share the same workspace but to potentially damage the organisation’s reputation as well”.
Along with determining the possible impact employee actions might have on co-workers or organisational reputation, law firms warn proving an employee has not complied with COVID rules is not always an easy situation to navigate. You may apply disciplinary sanctions where you have ‘a reasonable belief’ – following fair investigation – that misconduct warranting action has been committed. As each situation is different, it is important when determining ‘a reasonable belief’ you make every effort to collect all available information before taking any decision to carryout formal disciplinary action. During the process you must also take steps to preserve objectivity and impartiality to give you a fair and consistent approach.
What steps should you take?
Clearly communicate to employees your basic expectations of them – both in and outside of work – along with any potential consequences. This will reassure employees currently in work and those returning in the near future. Employees will be no doubt as to where they stand and they will have received sufficient notice from you which will help satisfy one of the elements of fairness for any potential cases of disciplinary action.
For additional guidance on how to handle complex employee relations issues contact us at Solution22 – HR Consultancy Services
Government guidance can be found at Coronavirus (COVID-19): guidance and support
Source Materials – Journals: – HR Review 4th February 2021, People Management 26th February 2021, Legal:- Swinburne Maddison LLP and Nelsons employment law firm.