A hospital porter whose absence was treated as unauthorised while he awaited the results of his wife’s coronavirus test has won his claim at an employment tribunal.
Mr Hosie, who removed clinical waste from wards at Ninewells Hospital in Dundee, refused to attend work until it was confirmed that his wife had not been infected with Covid-19, as he believed doing so would breach Scottish Government advice.
On 22 October 2020, the claimant’s wife, who also worked at the hospital, was told to take a Covid-19 test as there had been an outbreak of the virus on one of the wards she worked on.
Shortly before this, the couple had watched a daily update from first minister Nicola Sturgeon in which people were advised that they should stay at home if they, or anyone they lived with, had been told to take a Covid test.
The claimant’s wife took the precautionary test at the hospital before her shift and was told to work as normal while she awaited the result.
Covid in the courts
Worker who refused to go to work because of Covid fear loses tribunal claim
Covid-related employment cases: 10 key rulings for employers
Later that evening, as Hosie finished his shift, the claimant’s wife informed him that she was waiting for the result of her test. Hosie was concerned that she had been at work and discussed the situation with three of his colleagues that evening. They told him that he should go home and let his supervisor know.
Hosie sent a text message to his supervisor, stating that he and his wife would be required to self-isolate until they knew the test result.
The following day the portering team leader, Mr Stewart, said that Hosie should stay away from work until his wife had her test result back.
However, Stewart later spoke with a member of the hospital’s infection control team, who said there was no need for Hosie and his wife to be self-isolating while awaiting the result of the test. Stewart later rang the claimant and advised him that as the testing was precautionary, no-one was required to self-isolate and people could work as normal.
The claimant believed that Stewart’s position was based on inaccurate information which was contrary to Scottish Government’s advice. He raised concerns about this with the organisation and emailed the first minister.
Neither the claimant or his wife attended work that day, however when the negative Covid test result came through he emailed Stewart to inform him that he would return to work the next day, 24 October. By this point, the hospital had arranged for his 24 October shift to be covered by somebody else.
When Hosie arrived at work on 24 October, he found that his shift was being covered and went home. However, when Stewart became aware of this situation on 26 October, Stewart said that his expectation was that even where the two members of staff had turned up to cover the same shift, both should have worked.
It was later decided that Hosie’s absence on both days would be treated as unauthorised, but Stewart told him that only 24 October would be recorded as unauthorised. His next wage slip showed a deduction of two days’ pay.
Hosie had a conversation with a portering team lead and verbally indicated that he would not accept an extension to his fixed term contract if it were offered to him.
In November he was declared unfit for work by his GP because of stress.
Safe working
Policy on safe working when attending workplace
Letter to arrange discussion with pregnant employee about safe return to workplace
In a later letter to the claimant, Stewart said the hospital had accepted Hosie’s verbal resignation and that his contract would be terminated.
Hosie raised a grievance which challenged the assertion that he had resigned. He made a separate complaint about being “penalised” for being absent from work on 23 and 24 October 2020, while others who had travelled abroad and had been required to quarantine upon their return had been granted special leave.
Hosie brought claims for failure to pay salary, detriment in respect of the failure to pay salary, and unfair dismissal against Tayside Health Board.
He was awarded one day’s pay – £71.34 – in compensation, but his detriment and unfair dismissal claims were dismissed by the tribunal.
In its judgment, the tribunal recognised that there was a danger that Hosie’s wife had the virus when she was told to take a Covid test, and so might he, and that he would have posed an imminent danger to colleagues had he returned to work that day.
“In our view, the respondent treated the claimant’s non-attendance on 23 [October] as unauthorised and unpaid on the ground that he refused to return to work while that danger persisted. That treatment was a breach 10 of section 44 of the 1996 [Employment Rights] Act,” judge Russell Bradley said.
The judge said that while the hospital could be criticised for failing to adhere to its own fixed term contract policy, Hosie’s dismissal had not been unfair.
“There was no evidence which supported a finding that the reason or principal reason for the non-renewal of the claimant’s fixed term contract was that he had refused to return to work on 23 October,” the judgment says.
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
Tayside Health Board has been contacted for comment.
Latest HR job opportunities on Personnel Today
Browse more human resources jobs
