Gross misconduct: Breaching Covid-19 restrictions outside of work

Thursday 28 October 2021

Despite the relaxation of Covid-19 restrictions across the UK, a legal requirement to self-isolate remains in force for all those that test positive for Covid-19. If the individual is asymptomatic, the requirement is to isolate for 10 days from receipt of a positive test, and, if symptomatic, 10 days from the onset of symptoms.

For this and other reasons, employers continue to grapple with circumstances in which employees have breached Covid-19 restrictions whilst outside of work. Determining whether such conduct constitutes gross misconduct can prove difficult.

The default position in the UK is that an employer will not normally be able to discipline an employee for conduct outside of work unless the conduct in question impacts on the working relationship in some way.

Nevertheless, it is possible for an employer to discipline an employee for failing to adhere to Covid-19 guidelines whilst outside the workplace. This is particularly likely to apply in circumstances in which an employer has issued clear guidance to all employees that they expect total compliance with any government guidance in place at the time, meaning that any employee non-compliance could be regarded as a failure to follow reasonable instructions from their employer.

What is considered reasonable will depend on the facts of the given situation, such as the type of business carried out, the employee’s role and the state of current guidance, amongst other factors.

Employees also have a duty to take reasonable care for the health and safety of colleagues around them. Any conduct outside of work that flagrantly breaches Covid-19 restrictions will clearly conflict with this duty if it increases the likelihood of the employee infecting people at work. Examples of employee behaviour that could potentially amount to misconduct include: attending the workplace (contrary to guidance that they should self-isolate); endangering the health and safety of colleagues; and breaching restrictions that causes them to be unable to attend work (thus disrupting the employer’s natural course of business). Employee behaviour that contravenes Covid-19 restrictions may also have a damaging impact on an employer’s reputation, which could be a separate cause for disciplinary action.

If you have any questions about how the Covid-19 restrictions impact your business,  please email or call our Employment Law team today on 0113 207 0000.