A Tribunal has found that a forklift driver who was dismissed after he came to work under the assumption that his son was faking COVID-19 symptoms was unfairly dismissed. David Lewis, who had been employed by The Benriach Distillery Company for 23 years before his dismissal, was accused of being “highly irresponsible” and “reckless” by the company’s HR team when he attended work while his son awaited the results of a COVID-19 test.

However, the Tribunal ruled that Lewis had nothing to gain by pretending his son didn’t have COVID-19 because he would have been paid while he was self-isolating, and that he did not knowingly breach Scottish government guidance.

Lewis, who began working for the Newbridge-based whisky distillery as a forklift truck driver in 1998, had a clean disciplinary record and excellent attendance. His son complained of a cough and a loss of sense of smell, which Mr Lewis did not believe, instead thinking his son wanted a day off work. He therefore went in to work while his son was awaiting the results of the test.

The company’s HR team instigated an investigation and held a meeting with Lewis and other members of senior leadership on 10 February. During this meeting, Lewis was asked why his son took a COVID test, to which he replied, “to be honest, I didn’t think he needed a test”.

Lewis also said he did not self-isolate before this because his son was not showing symptoms – as per Scottish Government guidance – and just had a “sore head”. On 17 February, Lewis was suspended on full pay and invited to a disciplinary hearing on 23 February, having committed “a serious breach of health and safety processes”.

The hearing heard that Lewis’ son had not shown symptoms of COVID-19 prior to Lewis’ attendance at work on 8 February.

On 25 February, Lewis was dismissed without notice with immediate effect because his “explanation [for not self-isolating] was not acceptable” and that the company’s confidence in Lewis had been “completely undermined”.

Lewis appealed the decision on 2 March, saying he would “never knowingly come into work with symptoms”, and it was accepted that there was no clear guidance on isolating while awaiting a test result. However, his appeal was not upheld because his son subsequently tested positive.

Lewis told the Tribunal that immediately after his dismissal he “frequently broke down in front of others” and was concerned for his mental health. Between February and March, Lewis was diagnosed with anxiety and put on medication.

He obtained alternative employment following his dismissal, but had to leave because of his “worsening anxiety issues”. He is still unable to face people because he feels “embarrassed that he has been dismissed” and continues to get upset in front of family and friends.

Employment Judge Jim Young concluded that The Benriach Distillery Company’s decision to find Lewis guilty of gross misconduct was “irrational” and said the decision was one “no reasonable employer could have arrived at”. Additionally, if there was misconduct, Young said it lacked the character of gross misconduct because it was “neither intentional nor gross negligence”.

Generally, misconduct is any type of behaviour or conduct at work that falls below the required standard or where company rules are deliberately breached by the employee. ‘Gross misconduct’ occurs when there is a very serious breach of rules or policies, and entitles the employer to dismiss the employee for a first offence without notice. Employers should make it clear in their policies and rules what behaviour will be regarded as ‘misconduct’ and what is ‘gross misconduct’.

The Tribunal also ruled that there was some “blameworthy conduct” on Lewis’ part because he went into work against the possibility that the test might be positive. The judge ordered the firm to pay £23,978.19 in compensation for unfair dismissal.