Driver who thought his son was faking Covid wins dismissal case

A forklift operator who was sacked for attending work after his son contracted Covid has won his claim of unfair dismissal. He said he believed his son was just faking symptoms.

David Lewis had worked for The Benriach Distillery Company for 23 years with a clean disciplinary and attendance record.

In February 2021, his line manager learnt that Lewis’ son was awaiting results on a covid test and emailed this to Simon Briggs in the HR team.

Briggs reacted angrily and described Lewis as ‘highly irresponsible’ and ‘reckless’ for attending work.

Lewis claimed his son showed no symptoms and had only had the test because some of his friends had received positive results.

In the following days the son lost his sense of smell and the NHS told Lewis he must too self-isolate until the test results were ready.

He was suspended on full pay for a “serious breach of health and safety processes”.

At the subsequent meeting, Lewis said he initially didn’t self-isolate because his son had no symptoms other than a sore head. He believed his son was “at it” (faking or joking) and that he had done a pretend cough and started laughing. It caused a fallout between the two.

Under this belief, Lewis attended work – as per Scottish Government guidance at the time. He claimed he would “never knowingly come into work with symptoms”.

Despite this, Lewis was dismissed with immediate effect for breaching company and government guidelines.

Lewis found employment elsewhere but could not hold on to the role as he had begun to suffer with embarrassment, anxiety and depression.

His case went before the Employment Tribunal which ruled in his favour.

Judge Young concluded that The Benriach Distillery Company’s decision to find Lewis guilty of gross misconduct was “irrational” and one “no reasonable employer could have arrived at”.

Young added that the prejudgment of Lewis’ behaviour from HR manager Simon Briggs was an influence throughout the proceedings, including on the views of senior figures in the dismissal process.

Lewis had gained nothing by pretending his son didn’t have Covid because he would have been paid while he was self-isolating, and he did not knowingly breach government guidance.

Please contact us if you would like more information about the issues raised in this article or any aspect of employment law.

Employment Tribunals (Scotland)
Case No: 4109705/2021
Heard by CVP on 4 and 5 October 2021
Employment Judge J D Young
Mr David Lewis vs The Benriach Distillery Company Limited