E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4109705/2021 Heard by CVP on and October 2021 Employment Judge J D Young Mr David Lewis v , Advocate Instructed by Ms M Gribbon, Solicitor The Benriach Distillery Company Limited — 2021

David Lewis, a fork lift truck driver with continuous service from 1998, was dismissed without notice on 25 February 2021 after attending work on 8 February 2021 when his son had taken a COVID test. The respondent treated the matter as a serious breach of health and safety and self-isolation guidance, relying on the view that the son had symptoms of COVID and that the claimant knowingly breached the rules. The claimant maintained throughout that his son had only a headache and a brief "mock cough", that he did not believe the son had qualifying symptoms, and that he had no reason to think he was required to self-isolate at the time he went to work.

The tribunal upheld the unfair dismissal claim under s.98 ERA 1996. It accepted the claimant as credible on the central issue and found that the respondent did not have reasonable grounds for believing that the claimant knowingly breached the Scottish Government self-isolation guidance adopted by the respondent. The tribunal found no evidence that the son's symptoms met the guidance definition of a new continuous cough, fever, or loss or change of smell or taste, and it considered that the investigation had not established a sufficient factual basis to disbelieve the claimant. It also held that if the respondent had relied on the brief reference to a cough in Helen Farmer's email, further enquiry should have been made about what was meant, because a cough in the guidance context had to be a qualifying symptom.

The tribunal rejected the claimant's separate procedural challenge based on Simon Briggs' involvement. Although it accepted that Mr Briggs had expressed a view and had intervened at the disciplinary hearing, it found that Laura Grew made the dismissal decision and Lucas Avery made his own decision on appeal, so there was no procedural irregularity sufficient to invalidate the dismissal. On wrongful dismissal, the tribunal said that if it had not already found the dismissal unfair, it would have found that there was no repudiatory breach by the claimant and that notice pay would have been due.

On remedy, the tribunal reduced both the basic award and the compensatory award by 25% for contributory conduct because the claimant knew his son had booked and taken a COVID test and, in the tribunal's view, should have considered erring on the side of caution or seeking advice before attending work. It assessed the basic award at £10,178.49 and the compensatory award at £13,799.70, making a total award of £23,978.19. The compensatory loss included past wage loss, future loss, past pension loss and £500 for loss of statutory rights; the prescribed element was £11,426.34 for the period 25 February 2021 to 9 November 2021.