Disciplinary Issues Around Covid

With most of us at pains to do the responsible thing when it comes to minimising the spread of Covid-19, perceived breaches of rules by others can be a problem.

In work, as much as anywhere else, tensions are created when people feel those around them are not doing as they should. And with huge pressures on employers to maintain as safe a workplace as possible, HR may well take the view that any ‘loose cannon’ behaviour should be dealt with as a disciplinary issue.

There are a few points to bear in mind here. For employees to be disciplined fairly, they should know that their action or inaction could lead to some sanction. Disciplinary policies need to be readily available and communicated to staff.  And where, as in the case of an unexpected pandemic, certain ‘new’ types of behaviour could fall to be dealt with as a disciplinary issue, it’s wise for employers to update policies to factor that in.

Employees must be in no doubt about what is and isn’t acceptable at work and when and how they might be subject to a disciplinary. If employees know, for instance, that failing to self-isolate after a positive Covid test would trigger the disciplinary process, not only could that deter that behaviour in the first place but it would also give the employer good grounds on which to take action against that individual. No surprises. That’s the key message.

With any disciplinary issue it’s so important to take things step-by-step. A thorough and well-documented investigation into the circumstances is vital, even if the situation you’re dealing with seems cut and dried. Don’t make any assumptions; look into the facts and decide whether disciplinary action should be considered. In some cases, things can be resolved informally. But beware of setting a precedent that could tie your hands when dealing with similar situations in the future.

That applies whether the alleged misconduct happened in work or in the employee’s spare time. The big difference, however, is that while it will usually be right to deal with workplace-based misconduct via your disciplinary policy, conduct outside work isn’t always sufficiently connected to the employment relationship so as to warrant the employer getting involved.

This is an issue that lots of employers have asked me about in recent weeks. And the challenge is in correctly judging the employment link. If the employee’s behaviour has enough of a connection to the workplace, the employer will be justified in  taking action (and could even be obliged to). That might be the case if, for example, an employee posted on Facebook photos of a party they had attended (in breach of lockdown rules) and subsequently came into work, potentially bringing Covid with them.

The final piece of the disciplinary jigsaw is the sanction. There is a range of potential outcomes, from no sanction at all, to a written warning, to dismissal. When judging overall fairness, not only will the employer’s process be scrutinised, but the reasonableness of the outcome will be in the spotlight. What are the mitigating factors? Is this a long-serving employee with a clean disciplinary record? What explanation has he or she given? How have similar situations been dealt with? What does the disciplinary policy say? These are the types of questions that an employer should have in mind throughout. Ultimately, it’s about doing the right thing – being thorough, fair and reasonable.

Of course, disciplinaries are a well-trodden path for employers everywhere. But what this pandemic has demonstrated is that workplace rules are a moving feast. Employers must stay on their toes and make sure not only that their office, factory, shop or site is geared up to be legally compliant and to minimise risk, but that the paperwork and people management follows suit. And, aside from the practical aspects like installing hand sanitiser and desk screens, if there’s one thing that stands businesses in the best stead to work through Covid, it’s communication. Talking to staff, informing them, consulting them, involving them. It really is key to getting everyone on board and playing by the rules.