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30th March 2022

Case update: Employment Tribunal finds in favour of an employee after he was accused of lying about COVID-19 symptoms

Watford Employment Tribunal has found that a care home breached the implied terms of trust and confidence when a manager, after an incident, accused a care home employee of lying about his absence due to COVID symptoms and threatened to be ‘on his back every 5 minutes' Safiya Sidat of Napthens reports.

 Case summary

The employee was employed as a Domestic Assistant in a nursing home from 31 October 2006 until he resigned with immediate effect on 7 May 2020.

In March 2020, the employee presented COVID-like symptoms, upon reporting this to the NHS he was advised to self-isolate. He presented the appropriate isolation notes, however, as his symptoms did not subside his GP signed him off as being unfit for work due to ‘suspected COVID-19’ until 29 April 2020.

On 5 May 2020, the employee returned to work. The employee noticed that the kitchen staff were not wearing facemasks. He spoke about it with a colleague, who stated that it has been like that for some time. The employee, as a joke, said that if the matron did not take action, he would file a complaint with the Care Quality Commission (CQC).

The Tribunal heard witness evidence from the employee who stated that following this exchange, his manager questioned him about his conversation with his colleague about the CQC. The employee stated that the conversation then escalated when the manager told the employee that he was ‘not a loyal employee’ and ‘accused the employee of lying to his GP’, ‘lying about having COVID and falsifying doctors’ notes’. The employee claimed that his manager shouted at him and pointed his finger in his face. The Tribunal also heard witness evidence from the manager who, during cross examination, was unwilling to confirm whether he had accused the employee of dishonesty.

Tribunal finding

In considering the evidence presented to it, the Watford Employment Tribunal found in favour of the employee; concluding that the employee’s version of events are the more likely circumstances and that the manager ‘was angry and behaved in an aggressive fashion’.

The Tribunal found that it could not identify any reasonable or proper cause for the manager to accuse the employee of lying to his GP about having COVID or providing false information for his GP’s notes. The Tribunal also found there to be no reasonable or proper cause for the manager to shout at the employee, to point his finger in the employee’s face, to make the employee fear that his working life would be made difficult or to respond to the employee ‘in a way that belittled his employment in front of his colleagues’. The Tribunal also acknowledged that it may be reasonable and proper for an employer to raise serious allegations with employees, however, the tone and manner in which these issues are addressed ‘may be relevant’.

Commentary

Constructive unfair dismissal claims are notoriously difficult for claimants to succeed in. Each case would turn on its own facts and there is a high legal threshold for the claimant to convince an Employment Tribunal that the employer had breached an actual or implied term of their employment contract, and this said breach resulted in their employment being untenable.

COVID-19 has presented large disruptions for both employers and employees within the health and social care sector. This case exhibits the importance of appropriate communication between staff. Raising voices and pointing in people’s faces are never the correct way to manage an individual.

From an employer’s point of view, the main take away from this case is to ensure that they have adequate processes in place and to put in place training and refresher training for their employees. The training should cover what internal policy and procedures are in place and how they are to deal with situations in an appropriate manner.

If you have any queries or are in need of specific advice in relation to any employment law query, please contact a member of the Napthens Employment Team who are able to offer 30 minutes of free advice to QCS members.

 

Napthens Health and Safety is a trading name of ATG Health and Safety Consultants Limited.  ATG Health and Safety Consultants Limited is a limited company incorporated in England and Wales with registered company number 5172986. It is a business providing Health and Safety consultancy which is not regulated by the SRA.

VAT Reg No. 842 0852 39 Scot

*All information is correct at the time of publishing. Use of this material is subject to your acceptance of our terms and conditions.

Napthens LLP

Employment Law Specialists

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