The decision to dismiss a cleaner who went to work while infected with Covid-19 was unfair because his employer did not follow a fair process, an employment tribunal has found.
Private and Industrial Cleaning Services, which faced losing its contract with Lidl because of the incident, did not conduct a reasonable investigation or follow a fair procedure when it decided to dismiss claimant Mr P Murphy.
Murphy, who is dyslexic and has autism, claimed he did not have Covid symptoms but decided to get tested for Covid-19 on 6 January 2021 because he was passing a coronavirus testing site. He said he did not realise that the test he had taken was a PCR test, and was able to enter the site and take the test even though he did not have symptoms.
The following day, he attended his cleaning shift at the Lidl store in Runcorn, Cheshire. There were signs throughout the store stating that if staff had particular symptoms or thought that they had Covid, they should not enter.
After finishing his shift, he received an NHS text which stated he had tested positive and had to self-isolate for 10 days. He reported the test result to the cleaning company’s owner Kevin Cross and the colleagues he had worked with that day.
Later that evening, Cross contacted the manager of the Lidl store, Philip Buxton. Buxton was unhappy that the claimant had attended work after having a Covid test and told Cross that he had seen Murphy coughing that day. Other staff who worked with the claimant that day also suggested he had cold-like symptoms.
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Murphy was informed that Lidl had refused permission for him to go back onsite as he had broken their guidelines as well as government guidance.
A few days later, Buxton asked the cleaning company to investigate the situation. Buxton said that if the claimant attended the Lidl site then the cleaning contract it held would be in jeopardy.
Senior staff at Private and Industrial Cleaning Services held a meeting to determine what would happen to Murphy, which Murphy was not invited to. Cross concluded that the claimant had breached the health and safety policy and put staff in unnecessary danger. Co-owner Lisa Cross confirmed that this amounted to gross misconduct and said the claimant would be dismissed.
Murphy appealed the decision. He asked for evidence from the disciplinary procedure and the minutes of the conversations with staff. Although most of the statements from staff were received in January, a witness statement from Buxton was not received until March 2021, almost two months after Murphy’s dismissal.
At the tribunal hearing, Murphy’s representative argued that the respondent had not updated its health and safety policy in light of the pandemic and there was no specific guidance about what to do when having a test.
It was suggested that there was a “contradiction between the witnesses”, which the tribunal agreed. The tribunal said that had a proper investigation taken place, this contradiction could have been explored further.
The claimant also argued that the company had not followed the Acas Code of Practice when it investigated the incident and dismissed him, and the tribunal agreed that it did not conduct a reasonable, fair process because it did not invite him to the meeting.
The respondent accepted that it should have suspended the claimant at the time, but maintained that it would have ultimately dismissed him regardless of any suspension.
It said there had been pressure to make a decision because it was at risk of losing the Lidl contract, which amounted to 45% of its work.
It was also noted that the claimant had completed training relating to Covid procedures and had signed documents confirming his understanding.
“Whilst the respondent relies on the fact that the claimant had a PCR test and was therefore symptomatic, there was a lot of confusion in the midst of the pandemic, and particularly in January following a second lockdown, as to the tests available. In fact, Merseyside, was a pilot site for testing,” the tribunal noted in its judgment.
“In January 2021 the government guidance was that if you had symptoms, you should isolate. However, it is not clear whether the claimant was offered a PCR test in error and the fact that he took a PCR test does not lead me to conclude that he had symptoms and was required to isolate.
“The respondent’s witnesses admitted that the health and safety policy had not been updated to deal with the Covid tests. Instead, the respondent’s witnesses gave evidence that staff were provided with verbal instructions. The claimant has no recollection of receiving verbal instructions.
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“The respondent did not have reasonable grounds for fixing the claimant, particularly in light of the fact that the claimant is dyslexic and slightly autistic, with definite knowledge of the procedure to follow after taking a test and therefore, the respondent did not have reasonable grounds for a belief that the claimant’s behaviour amounted to gross misconduct.”
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