Ms Jennifer Lafferty v Represented by:10 Ms L Bain - Solicitor Simon Community Scotland — 2022

Ms Jennifer Lafferty was employed by Simon Community Scotland as a support worker from 1 December 2008 until her summary dismissal on 27 October 2021. The tribunal found that the reason for dismissal was conduct: she attended work between 31 August and 3 September 2021 while her son, a household contact, had COVID symptoms and later tested positive, and she did not self-isolate in line with the guidance the respondent was following. It rejected her case that the dismissal was connected to the concerns she had raised with the Director of Services in July and August 2021.

The tribunal found that the respondent’s service users were a vulnerable group and that the respondent had circulated and expected strict compliance with public health guidance on self-isolation. It found that the claimant knew the guidance required household contacts of a symptomatic person to self-isolate and book a PCR test, but that she instead continued to work and visit respondent premises and service users’ homes. Her explanation that she believed she and her son were immune after earlier COVID infection was rejected as having no reasonable basis, and the tribunal also noted that her contacting Test and Protect and arranging tests for her son undermined that account.

The tribunal accepted that the respondent carried out a fair investigation, disciplinary hearing and appeal, and that the claimant was given an opportunity to explain her position at each stage. Applying section 98(4) ERA 1996, the Burchell test and the range of reasonable responses approach, it found that the respondent had a genuine belief on reasonable grounds that she had failed to follow public health guidance and had exposed colleagues and vulnerable service users to risk. It also found that the respondent acted in compliance with the Acas Code of Practice and that the dismissal was not unfair.

The wrongful dismissal claim also failed. The tribunal held that by attending work instead of self-isolating the claimant disregarded an essential condition of her contract of employment and undermined the trust and confidence inherent in the relationship. It therefore found that her conduct amounted to a repudiatory breach, accepted by the respondent when it summarily dismissed her. Both claims were dismissed and no monetary award was made.