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Cleaner wins unfair dismissal claim after going to work with Covid

Makbool Javaid, Partner - Simons Muirhead & Burton

In Murphy v Private and Industrial Cleaning Services, Philip Murphy was a cleaner at a cleaning contractor with a contract to clean Lidl. He had been for a PCR test the day before his shift at the discount supermarket store in Runcorn, Cheshire, but he had not received his results when he arrived at work.

Mr Murphy claimed he had experienced no symptoms, although witnesses said he appeared unwell on the day and the Lidl store manager, Philip Buxton, described seeing him ‘coughing in the canteen’. Mr Murphy, who is autistic and dyslexic, claimed he took a test on a whim after passing a testing site the previous day.

Employment Judge Jennifer Ainscough found Kevin Cross, who runs Widnes-based Private and Industrial Services Ltd, had not carried out a fair investigation or invited Mr Murphy to a disciplinary meeting before sacking him.

She found Mr Cross had “engineered” a situation to keep the contract with Lidl after Mr Buxton warned the company their contract could be terminated if Mr Murphy turned up to work at his store again.

In her ruling, Judge Ainscough wrote: “Philip Buxton was unhappy that the claimant had entered the Lidl workplace. Mr Buxton informed Kevin Cross that he had seen the claimant that day coughing. Kevin Cross apologised to Philip Buxton and stated he had not known that the claimant had been for a test.”

Two colleagues at the Lidl store, Sarah Murray and Stephen Ainsworth, gave statements to the tribunal saying they believed Mr Murphy was visibly unwell during his shift.

Judge Ainscough concluded the failure to conduct a proper investigation meant that Mr Murphy was unfairly dismissed and said the fact he had taken a PCR test was not clear evidence he had symptoms.

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