Care home worker accused of lying about Covid symptoms wins constructive unfair dismissal claim

An employee was constructively unfairly dismissed after an argument with his manager during which he was shouted at and accused of lying.  It was found that a Nursing Home breached implied terms of trust and confidence after a manager accused a domestic assistant of lying about his absence due to Covid symptoms and threatened to be “on his back every five minutes”.

The employee had always received positive feedback on performance when conducting his duties.  In late March 2020, the employee started to experience symptoms related to Covid-19 and was advised to self-isolate from 23 until 29 March, receiving an isolation note from his GP because of “suspected Covid-19”. He continued to feel unwell and received a second note from his GP advising him to isolate from 6 April until 12 April. He was also issued with a Fit Note from his GP covering 7 April 15 April, which was then extended until 29 April.

He returned to work on 5 May. That day, it was noticed by the employee that fellow colleagues were not wearing facemasks in the kitchen area. The employee approached a colleague about it, who said it had been like that for a while. The employee announced that he would raise the matter with the manager and added jokingly that if this was not actioned he would make a complaint to the Care Quality Commission (CQC), which regulates care homes in England.

The same day, the employee’s line manager overheard him say he was threatening to report the care home to the CQC and decided to speak to him to explain the guidance on PPE and discuss his sick leave.

The employee claimed that the manager shouted at him, pointing his finger in the employee’s face and calling him a liar. The employee also claimed that he was questioned on whether his absence was genuine and was accused of lying to his GP about having Covid and falsifying doctors’ notes. He also said that the manager told him he was “not a loyal employee”, and that he was ungrateful, referring to previous help the employee had received from the company such as loans and holidays.

The tribunal heard that the employee felt “belittled and hurt” by this interaction and after the meeting the employee went to his locker and took out his belongings. As he was clocking out of his shift, he told his manager that he was leaving and in response, and in front of other members of staff, the manager responded that he did not care.

Following the meeting, an informal warning letter was issued to the employee in respect of “unsatisfactory conduct for falsifying sick notes and absenteeism from work… [and] by talking to a colleague about reporting the home for breach of PPE when you should have discussed this with management”.

The employee submitted his resignation letter to the care home in which he said he “was treated appallingly”.

The tribunal found that there was no investigation into allegations of dishonesty and there was no reason to suspect dishonesty on the employee’s part. The tribunal also noted that, while it may be reasonable for an employer to raise serious allegations with employees, there was “no reasonable and proper cause for the manager to shout at the employee, to point his finger in the employee’s face”.

As a result, this constituted a breach of the implied term of trust and confidence which was a breach of the employment contract.

Employers should ensure that any concerns raised by employees must to be heard in a considered way.  121 HR Solutions can support employers with this type of situation, on 0800 9995 121.

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