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Fairness of the disciplinary process put to the test after positive Covid result

Published 23 February 2022

When shop assistant Imran was pressured to attend work despite feeling ill he had no idea how much trouble it would lead to.

He was ordered by his deputy manager to come into work despite feeling unwell with Covid symptoms during the first lockdown.

Just days after his last shift and two negative lateral flow tests, a PCR test produced a positive result for the virus.

After self-isolating  Imran was eager to return to work. However, he was informed he was suspended from work. It was for deliberately ignoring government guidance and putting colleagues and the public at risk.

Subsequently he was invited to attend a disciplinary hearing and warned dismissal was a potential outcome.

Imran contacted the Castle Associates Employee Support Centre.

Our representative successfully defended Imran against the allegation and he was eventually cleared of any wrongdoing.

During the disciplinary investigation process, the deputy manager denied she ordered or pressured  Imran to come in.  Imran was adamant that she had.

He explained to our representative how she got him to do a lateral flow Covid test in work. It was when he started coughing and said he felt ill during a shift.  The result was negative.

Imran felt worse the next day, and sent a text to his deputy manager to inform her. She messaged back and told him to call her, which Imran did.

During the call he said he felt unwell, was still coughing and so he would not be able to come in.

The deputy manager said they were short staffed, the test he did was negative and so he had to come in. She said they could do a test when he got there.

Imran resisted but felt pressured and bullied by the deputy manager and succumbed. The test he did was negative, so Imran soldiered on and completed his shift.

Imran then had a few days off before he was next due in work. He got a PCR test, and the day after received a positive result.

He immediately contacted the shop, where he had worked at for four years, to inform the deputy manager.

Imran later made a full recovery and it was when he was ready to return to work that he was informed he had been suspended. The disciplinary process was then started.

Imran’s biggest problem was it was a case of effectively his word against that of the deputy manager.

However, our representative felt there was enough evidence to allow the employer to reach a reasonable belief, the burden of proof required, that Imran was telling the truth.

Ahead of the disciplinary hearing our representative requested the deputy manager attend as a witness in accordance with section 12 of the ACAS Code of Practice. The company refused the request.

After an exchange of correspondence it said questions could be put to the deputy manager in writing. Our representative compiled a list of questions, which were answered.

The deputy manager maintained she did not order Imran to come in. She said when they spoke he assured her he was ok and ‘quickly’ said he would come in.

The hearing was presented with screenshots of the text message exchange and a printout of Imran’s call log, which our representative had asked him to obtain.

It showed the call to the deputy manager lasted nine minutes. It was asserted that was not evidence of Imran ‘quickly’ agreeing to come in, and was in fact evidence of him resisting and being persuaded, pressured and bullied to do so.

Details requested by our representative in relation to staff numbers helped to show a number were off and the shop was short staffed at the time, which supported that it was why Imran was ordered to come in.

The hearing was told the pressure applied to Imran from a senior member of staff was excessive, unwarranted and grossly unfair. It was argued it was those actions that created a situation that put others at risk.

Imran was eventually cleared of the allegation. When he returned to work the deputy manager had been replaced. There were plenty of rumours about the reason why.

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