A care home worker who joked about reporting his employer to the Care Quality Commission (CQC) for not enforcing the wearing of facemasks at the height of the pandemic has won his claim for constructive unfair dismissal.
Mr R Galang had been employed as a domestic assistant at Kestrel Grove Nursing Home for 14 years when he resigned with immediate effect on 7 May 2020. His manager, Paul Tripp, described him as a ‘good worker’.
In March 2020, Galang began experiencing Covid-19 symptoms. He was advised to self-isolate by the 111 service. He continued to feel unwell and was issued with a further isolation note. In April, Galang produced two ‘fitness to work’ notes from his GP citing ‘suspected Covid-19’ and covering the periods 7-15 April and 15-29 April.
Galang returned to work at Kestrel on 5 May 2020. The company conducted a risk assessment, describing that Galang as ‘high risk due to his underlying health conditions of diabetes, a heart condition and high blood pressure’. The risk assessment noted that Galang’s GP advised he was safe to return to work and could do so if he felt well enough. Galang told the Watford employment tribunal he could not recall any discussion around the risk assessment; however, he had signed it, and Judge Skehan decided, on the balance of probabilities, that it reflected the discussions that took place.
On the day of his return, Galang asked his colleague, Petrota, why kitchen staff weren’t wearing facemasks. She replied that it had been like that for a while. Galang said he would raise the matter with the matron and ‘added jokingly that if this was not actioned by the matron he would make a complaint to the CQC’ [which regulates and inspects the care sector].
Galang’s comments were reported to Tripp, who called a meeting with him to explain the guidance on PPE and discuss his recent sick leave. Galang told the tribunal that Tripp questioned him about his conversation with Petrota. Galang initially denied the comment about the CQC but subsequently admitted it. Tripp told Galang he was not a loyal employee and accused him of lying about his Covid symptoms and falsifying doctor’s notes. Tripp was angry: he shouted and pointed a finger in Galang’s face. Tripp told Galang he was going to be ‘on his back every five minutes’.
Tripp denied Galang’s version of events, but the judge found that in the absence of much detail from Tripp himself about the meeting, Galang’s version was more likely to be true.
Following the meeting, Tripp wrote to Galang, issuing an informal warning for unsatisfactory conduct for falsifying sick notes and talking to a colleague about reporting a breach of PPE rules when he should have discussed the matter with management.
On 7 May, Galang submitted his letter of resignation, describing Tripp’s behaviour towards him as ‘distressing’ and ‘abusive’. He wrote: ‘I had done nothing to deserve the treatment I received and all I did was raise issues relating to PPE that can impact on staff and most importantly the service users.’
Upholding Galang’s claim for constructive unfair dismissal, on the basis that Tripp’s behaviour breached the implied term of trust and confidence, Judge Skehan concluded: ‘Allegations of dishonesty without any reasonable and proper cause accompanied by aggressive behaviour, and a threat to “be on the claimant’s back every five minutes”, [constitute], in my view, behaviour that is likely to destroy or seriously damage trust and confidence…
‘I conclude that the claimant resigned in response to the repudiatory breach of his contract of employment.’
When asked for comment on the case, Jon Cooper, partner at Womble Bond Dickinson LLP, told IOSH magazine: ‘In my opinion employers should always deal with concerns and complaints raised by employees as to PPE very carefully.
‘In my experience complaints tend to be based on two issues. The first is where an employee raises concerns as to the absence of PPE. In those circumstances, the employer needs to review any risk assessments which concluded that PPE was not required. If that review leads to the conclusion that PPE is required – or if there is already PPE available but it is found to be insufficient or unsuitable – then appropriate PPE should be provided.
‘The second basis of PPE complaints by employees, in my experience, is where an employee raises a concern (as was the position in this case) that PPE provided is not being worn by fellow employees. In those circumstances, again, the employer should take action. If a risk assessment process has decided that PPE is necessary, then it is not sufficient for the employer simply to provide that PPE; its use must be enforced.
‘In those circumstances it's also worth bearing in mind the obligations placed on employees under section 7 of the Health and Safety at Work Act. Those obligations are to take reasonable care for their own health and safety at work and for others who may be affected by their acts or omissions. Failing to wear PPE provided by an employer, particularly in a health or care setting where PPE is provided to guard against transmission of infection, would, on the face of it, put an employee in breach of Section 7(a) of HSWA.
‘The second limb of section 7 (7(b)) is the obligation on employees to cooperate with their employer so as to ensure that the employer meets its obligations under health and safety legislation. Again, in the circumstances of employees not wearing PPE provided that would amount to a breach of the employee's duty under section 7(b).
‘Accordingly, section 7 is a very useful tool for employers to use in enforcing health and safety policies, including requirements to wear PPE.
‘There is an overlap between health and safety and employment law because it is important that disciplinary processes allow an employer to take action against employees for breach of health and safety policies or requirements. The fact that a breach of section 7 on the part of an employee is in effect a breach of the criminal law adds weight to an employer's ability to take action.’