Can An Employee Be Disciplined For Breaking Social Distancing Rules?

It was reported by the BBC that a school in Oldham has threatened to withdraw places for pupils who have told their teachers that they have been visiting people outside of their households. The obvious concern held by the school is that those attending who may be breaching Covid-19 regulations outside of school, could be subjecting their peers and teaching staff to unnecessary further risk.

This report came on the same day that Personnel Today, a UK HR website, detailed how 31 Police Officers were facing fines for breaking lockdown rules as a result of having haircuts done by a professional barber who had attended a Police station in London. Those officers have been fined in accordance with the Covid-19 regulations, though it is not known if the Metropolitan Police have also treated this as a disciplinary issue.

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

Employers’ duty to protect the health, safety and welfare of their employees and customers

It is an employer’s duty to protect the health, safety and welfare of their employees and other people who might be affected by their business. They should do what is reasonably practicable to try and achieve this. This means making sure that workers and others are protected from anything that may cause harm, effectively controlling any risks to injury or health that could arise in the workplace.

In the current climate, the focus for employers has extended to include things like ensuring sanitisation stations and social distancing measures are being adhered to for those still physically attending the workplace.

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

An employee who has attended work when they are under a legal obligation to self-isolate plainly runs the risk of facing disciplinary action on the basis that they are arguably contributing to an endangerment of the health and safety of their colleagues. However, employers may not feel confident in how to address a situation where an employee is flouting the social distancing rules outside of work.

For the most part, what someone does in their own spare time outside of work is a matter for them, unless ‘in some respect or other it affects the employee, or could be thought likely to affect the employee when he is doing his work’ (Singh v London Country Bus Services Ltd 1976 IRLR 176 EAT). For example, if an employee is convicted of speeding outside of work, this is unlikely to amount to a fair reason to discipline/dismiss them, unless driving forms part of their role.

Notwithstanding this, these are unusual times and we are of the view that noncompliance with Covid-19 regulations and social distancing rules outside of work could well justify disciplinary action in certain situations.

Consider for example an employee who is openly attending mass gatherings, flaunting their social escapades on their Facebook page (which displays the name of their employer) and continuing to attend the office as normal. This has scope both to potentially damage the employer’s reputation and to endanger the health and safety of colleagues who share the same workspace. An employer would probably be justified in this situation taking disciplinary action against that employee.

It is not always going to be easy to prove an employee’s guilt but where there are suspicions, formal disciplinary sanctions could be applied where an employer has a reasonable belief, following a fair investigation, that misconduct warranting action has been committed.

What approach should employers adopt where employees are breaching Covid-19 regulations?

Each case would turn on its own facts but employers should try to adopt a consistent approach with these types of issues and consider all information available to them before deciding whether something should be progressed as a formal disciplinary matter.

Given that as a nation we are unlikely to be completely free of some level of social restriction for some time, it would do no harm for employers to send staff a memo to their workers, setting out the basic expectations on them, both while they are in work and outside of work, and the potential consequences of them not following the rules.