Forklift driver sacked for breaking Covid rules wins unfair dismissal

Forklift driver sacked for breaking Covid self-isolation rules after going to work when he wrongly thought his son was faking virus symptoms is awarded £24,000 for unfair dismissal

  • David Lewis had been employed at Benriach Distillery in Newbridge, Edinburgh
  • He was there for 23 years before sacked this year for breaking lockdown rules
  • The father went to work while his son was awaiting the results of a Covid-19 test
  • An internal investigation found him to have committed a ‘serious breach’ of rules
  • But an employment judge ordered the firm to pay £23,978.19 in compensation

A forklift driver has been awarded nearly £24,000 after an employment tribunal found he was unfairly sacked for breaking self-isolation rules.

David Lewis had been employed at Benriach Distillery in Newbridge, Edinburgh, for 23 years before he was sacked earlier this year for breaking lockdown rules.

The father went to work while his son was awaiting the results of a Covid test and had been complaining of a cough and a loss in his sense of smell – which Mr Lewis did not believe.

An internal investigation found him to have committed a ‘serious breach’ of health and safety rules and he was sacked for gross misconduct.

Mr Lewis said he did not believe his son was ill and thought he wanted to skip a day of work when he complained of a headache and a ‘mock’ cough.

He took his son to get a Covid test on February 6, after he complained of a headache and the following day began to cough, which Mr Lewis believed was ‘mock coughing’ and lost his sense of smell.

David Lewis (pictured) had been employed at Benriach Distillery in Newbridge, Edinburgh, for 23 years before he was sacked earlier this year for breaking lockdown rules

He did not receive results by Monday morning and Mr Lewis went into work and did a full shift, despite Scottish Government guidance requiring anyone who lived with someone displaying symptoms to isolate.

The test was positive when results came back on February 9 and during an internal inquiry Mr Lewis said he had thought his son was ‘at it’ and was faking being ill.

HR worker Simon Briggs accused him of being ‘highly irresponsible’ and ‘reckless’ in an email to a colleague before launching an investigation.

Mr Lewis said: ‘To be honest I didn’t think he needed a test. One of his pals was going for a test and he said he had a sore head. I thought he was trying to get off work.

‘Later on he said his head had got really sore and he had booked a test (this was on Friday) I thought it was a pal thing. I gave him some Paracetamol.

‘Then I took him to the testing centre on Saturday. We came back and he went to his room.

‘On the Sunday he didn’t get his results. I said there was nothing wrong with him but he said he had a sore head still.

‘On the Sunday night he said he had a cough. I said he didn’t have a cough. Then on Monday he said he still had a bit of a cough.

‘On Monday I phoned the number on his letter and they said the result were not back yet.

‘They said results can take up to six days. They also told me that I then needed to self-isolate. He says he’s lost his sense of smell.’

The father went to work while his son was awaiting the results of a Covid test and had been complaining of a cough and a loss in his sense of smell – which Mr Lewis did not believe. Pictured: File photo of the distillery

After being told to isolate Mr Lewis told the firm which began an investigation.

Mr Lewis was sacked on February 25, 2021, without notice pay after the firm accused him of committing a ‘serious breach of health and safety policies’.

He took his former bosses to an employment tribunal after an internal appeal was shot down.

Employment judge Jim Young, who presided over the case, ordered the firm to pay £23,978.19 in compensation for unfair dismissal.

The judge accepted Mr Lewis’s claims he did not believe his son was showing Covid symptoms and so believed he did not need to self isolate.

But he said he should have self-isolated when he learned his son had taken a Covid test on the Saturday morning – even if the results had not returned when Mr Lewis went into work on the Monday.

Mr Lewis was sacked on February 25, 2021, without notice pay after the firm accused him of committing a ‘serious breach of health and safety policies’. Pictured: File photo of the distillery

The judge said Mr Lewis would not have gained from pretending his son did not have Covid symptoms because he would have been paid for time off spent self-isolating.

Judge Young said: ‘I consider that there is some blameworthy conduct on the part of the claimant in him going in to work against the possibility that a test might prove positive albeit his son was not displaying any symptoms.

‘There was no background motive to the claimant requiring to come into work on February 8, 2021.

‘He would have been paid if he had stayed at home so he did not have to pretend that his son did not have Covid symptoms so there was no need for him to self-isolate.

‘He was aware of the guidelines and knew that if there were symptoms then he should have self-isolated.

‘I accepted his position that if he had thought his son was suffering from Covid symptoms he would not have attended work.

‘I did not consider that there was a deliberate act to attend work when he knew his son was displaying symptoms of Covid and that he should have self-isolated.’

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