What do we do if we think that our employee is breaching the national lockdown?

We are now at the end of the third week of the latest English lockdown that started on 4 January. If my green recyling bin could talk it would tell you just how well I am coping!

It is known that people’s attitudes towards restrictions can lapse over time as frustrations that our lives are being inhibited take over, and people start to make choices that are not consistent with the message to stay at home.

We will have all heard about people we know who have deliberately broken the rules or bent them to their own advantage, but what if those people are your employees?

What can an employer do if they believe that their employee is breaching the rules?

Firstly, how does the employer find out that an employee is breaking the rules? Has the employer seen them breaking the rules. There could be an innocent explanation for a picture on Facebook showing someone at a party, could it be an old picture posted today as a memory?  Does the source of the information about rule breaking have an axe to grind? etc.

If your employee has a Facebook account with lax settings and parents of your Early Years’ setting as friends it is quite possible to argue that them stating “stuff Tier 4, Bozza won’t tell me what to do” will bring your setting into disrepute and as an employer you may be able to take action as it would be deemed reasonable.

Yes, its what is reasonable again!

You know us HR types love the word reasonable. Well sadly its very valid in this instance. Every case has to be judged on what is reasonable. In one case it may be unreasonable to take disciplinary action, in another it may be entirely reasonable.

For example, we have taken disciplinary action including terminating employment for employees in the last 6 weeks who have failed to self isolate. Self isolation is the law, and an employer who allows an employee to work when they should be self isolating can face fines. This was entirely reasonable.

What if the other staff are fed up?

Firstly, you shouldn’t discipline staff because other staff are putting you under pressure to do so. Ever. If it wouldn’t be reasonable to discipline I would thank the staff who bring the matter to your attention and advise them that you will address their concerns with their colleague. In some instances the following will be appropriate:

1. A memo to all staff (sadly like the sign in the Kitchen saying wash your own Mug, the only one’s who read the memo are the ones who follow the rules!)
2. A worried chat (1-2-1 with the employee explaining you are worried to learn that they are breaking the restrictions)
3. A strong word – a conversation where you stress the importance of your Covid secure workplace and that you will consider further breaches to be a H&S matter. The employee has a duty under HSAWA 1974 towards their own safety, that of their colleagues and members of the public.

If the matter is sufficiently serious and/or has brought the employer into disrepute and disciplinary action is reasonable, investigate, take statements, interview witnesses, gather evidence and then proceed. The usual jazz.

Can I withhold pay to penalise them?

No. Under employment law we can never withhold pay as a punishment. If someone should be quarantining or self isolating that should be given SSP. If you feel they have breached the national lockdown you can suspend on full pay if you really feel that they are a risk to your staff, children or parents, but only after you have fully explored the alternatives as suspension leaves a mark.

Finally…

People are acting out of character at the moment. It’s a strange time. Sometimes the staff member may have no control on what family members are doing. Sometimes they have been told that they are exempt. People can be led astray. Some people are at the end of a very short tether. Be kind.

If you need any assistance with managing staff through a pandemic please do not hesitate to call us on 01527 306066.