By Andrew Willis, Head of Legal at Croner

With the global pandemic still playing a significant role in people’s lives, unfortunately some individuals are getting complacent when it comes to social distancing and mask-wearing. This means, that even if you’ve set out a perfect plan to make your workplace COVID-secure, it may not matter. The health & safety of your employees is your responsibility, even if they’re the ones putting themselves and others at risk. So how do you manage an employee who is failing to follow your guidelines?

Before everyone returning to work you should’ve conducted a risk assessment.  After this, take a look at the measures you’ve got in place currently. What steps have you taken to prevent the spread of COVID-19? Have you marked floors to highlight two-metre distances? Have you installed hand sanitising stations? Finally, have you communicated all the measures to your employees? Are they aware of them? If your answer to any of these questions is “no”, you should address them before penalising staff.

If you’re certain that you’ve done everything correctly, then you need to have a conversation with the employee. It’s worth trying to handle the situation informally before proceeding to a disciplinary. Inform the employee that failure to comply with the measures you’ve set out may be an act of gross misconduct. Ultimately, their behaviour could lead to dismissal. Hopefully, this alone should be enough to persuade them to follow your health & safety guidelines. If it isn’t, then you need to proceed down a more serious disciplinary route.

As with any disciplinary, you must follow the correct procedure. Failure to do so could lead to a claim of unfair dismissal. Begin with an investigation into the misconduct. It may be necessary to suspend the employee if their presence will interfere with the investigation. Once finished, you should send out a letter to the employee informing them of the allegations and next steps. Don’t make any sanctions during the hearing. The purpose of this meeting is to determine if the employee breached your health & safety measures. Once the meeting is over, you decide whether (based on the evidence) the allegations are true. If yes, you may then decide to dismiss the employee. Employees have the right to appeal against this decision, and you should remind them of this.

Health & safety is vitally important during coronavirus. Failure to act when an employee breaches your COVID-secure measures sets a precedent for others to follow suit and demonstrates a failure to comply with your duty of care towards both employees and non-employees. Treat each case with the severity it deserves and hopefully you won’t see a repeat offence.

Remember, failure to protect your employees is on you and you can be vicariously liable by your employees’ actions or failures. This can result in significant fines from the HSE or worse—an outbreak among your staff.