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Forklift driver wins unfair dismissal claim after mistakenly breaking Covid rules

Makbool Javaid, Partner - Simons Muirhead & Burton

In the case of Lewis v The Benriach Distillery Company Limited, David Lewis was employed as a Fork Lift Truck Driver in the dry goods warehouse in Newbridge. He had continuous employment with the company between 5 January 1998 and 25 February 2021. At the beginning of February 2021 Mr Lewis’ son took a Covid test after suffering from a cough which Mr Lewis did not really believe. While his son was waiting for his test results Mr Lewis went to work as usual.

The test was positive when results came back on Tuesday February 9 – and during an internal inquiry the dad said he had thought his son was ‘at it’ and that he was faking being ill to get off work. HR worker Simon Briggs accused him of being ‘highly irresponsible’ and ‘reckless’ in an email to a colleague before launching an investigation. The confused dad 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.”

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 failed.

The judge accepted David’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 David 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 David came into work on the Monday. The judge also said that David 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.

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

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