Treating a self-isolating employee as having resigned was unfair dismissal.
In Reid v The Good Health Store Limited, the Employment and Equality Tribunal on the Isle of Man found in favour of a claimant in an unfair dismissal and unlawful deductions case (according to the laws of the Isle of Man).
As one of the first reported cases concerning a COVID-related dispute between an employer and an employee, this case makes for an interesting read. Although the case is from the Isle of Man, (under its own legal system), Manx law appears heavily influenced by UK law, and as such it is conceivable that the considerations and outcome of this case could be borne in mind by Tribunals in England and Wales looking to decide similar disputes.
The facts of this case are likely quite commonplace in the current environment and arise from March 2020, during the early days of COVID-19 when initial official guidance was still being formulated. According to the judgment, the claimant had been working for her employer GHS since March 2018 as a sales assistant in a shop and had been a good performer. On 16 March 2020, the Manx Government, in response to COVID-19, advised vulnerable groups to avoid contact with other people. As a diabetic, the claimant considered that she was within a vulnerable group.
The claimant's case was that on 17 March 2020 she spoke to her employer and advised them that she would need to self-isolate for up to 12 weeks, as she was in a vulnerable group. On 20 March 2020, having spoken with her medical practitioner, she then confirmed that the advice was for her to self-isolate for 14 days, and that if she remained symptom-free, she would be able to return to work, subject to social distancing guidance. On 31 March 2020, she met her employer to discuss her return to work, at which point, her employer reacted 'negatively'.
The content of the discussion that day, and in the days leading up to it, were disputed by the employer who put forward a different sequence of events.
GHS's case was that the claimant had walked out and resigned on 17 March 2020, effectively abandoning her job without notice and without regard to other employees or the business. It claimed that she had left the store without reaching an agreement on taking time off and with no formal advice from the Manx Government about individuals in the claimant's position having to stay away from work. It also claimed that the claimant had not mentioned that she was isolating nor that she would be coming back, although GHS accepted that the claimant had not once referred to resigning. It took the view that the claimant could have attended work from 13 March but chose not to do so.
GHS also claimed that there had been a number of conduct issues with the claimant, along with a breakdown in trust and confidence, which it took into consideration when it decided not to 'take her back' during the discussion on 31 March 2020.
The tribunal found in favour of the claimant and decided the following:
- In March, official COVID advice from the Manx Government and the UK was far from clear or consistent, and it was plausible that the claimant had understood that vulnerable groups may well need to self-isolate.
- It would be harsh to criticise the claimant given her health condition, when she informed GHS that she may need to self-isolate for up to 12 weeks.
- The claimant appeared to have followed medical advice along the way and her evidence was preferred in key areas of disagreement.
- The claimant did not walk out or resign on 17 March and there was no repudiatory conduct by the claimant.
- The claimant remained employed until she was unfairly dismissed by GHS on 31 March 2020.
- Compensation was to be awarded of £7,161, including loss of earnings up to August 2020, whilst recognising that it might be longer before a suitable job opportunity came along.
This case shows that a tribunal had no trouble in making a finding of unfair dismissal where it found an employer had effectively dismissed an employee as a result of the employee self-isolating in accordance with medical and national advice. In coming to its decision, the tribunal considered the state of official guidance on vulnerable groups and isolation, the steps taken by the employee to keep her employer informed of her isolation status, and the fact that supporting medical advice had been taken.
The case should perhaps be taken as a cautionary tale of why it is important to properly document key conversations held with employees, and to properly consider one's obligations when it comes to employee health and safety, particularly during the COVID pandemic. Employers should not assume that an employee does not intend to return to work where they claim to be self-isolating, and Employers would do well to follow any relevant government COVID guidance available and seek legal advice where necessary.
The judgement can be found here.