Sanctioning staff for flouting social distancing rules – can it be done?

Melanie Morton, Nelsons

Melanie Morton, Nelsons

Not complying with COVD-19 regulations and social distancing rules outside of work could well justify official disciplinary action from employers – according to Melanie Morton, legal director and solicitor specialising in employment law at Nelsons law firm.

It comes after a Personnel Today report detailed how 31 police officers were facing fines, and two were facing further investigation, for breaking lockdown rules by having haircuts by a professional barber at a London police station.

What can employers do in a situation like this?

“The issue of compliance raises legitimate questions about how far employers can go in reprimanding and formally disciplining employees who they suspect are breaking COVID-19 or social distancing regulations while they are away from the workplace.

“Employers have a duty of care to protect the health, safety and welfare of their staff and customers, therefore they should do what is reasonably practicable to try and achieve this. In practice, this means ensuring everyone is protected from anything that may cause them harm by controlling any risks to injury or health that could arise in the workplace.

“In the current climate, this focus has extended to include measures such as installing sanitisation stations and making sure that social distancing measures are being adhered to by those who are still physically attending the workplace.”

How far can employers go in formally disciplining employees for breaching COVID-19 regulations outside of work?

“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.

“For the most part, what someone does in their own spare time is a matter for them unless, as in the case of Singh v London Country Bus Services Ltd 1976, ‘in some respect or other it affects the employee, or could be thought likely to affect the employee when doing their work’.

“An example of this would be if an employee is convicted of speeding outside of work. This is unlikely to be amount to a fair reason to dismiss or discipline them unless driving forms part of their contractual role.

“Notwithstanding this, these are extraordinary times and we’re of the view that non-compliance with COVID-19 regulations and social distancing outside the workplace could well justify disciplinary action in certain situations. For example, 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.

“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. Therefore, the employer would be justified in taking disciplinary action against that individual in this situation.

“Proving an employee has not complied with the regulations in these kinds of situations is not always going to be easy but, 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.”

What’s the best approach for employers to adopt when a team member is breaching COVID-19 regulations?

“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.

“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.”