The UK has been in a national lockdown for the entirety of 2021 with no fixed end (yet) in sight. However, the rules of Lockdown 3 are different from the preceding two lockdowns in England, not to mention the rules in place within the “Tiers” system which preceded the current lockdown.
Anyone can be forgiven for inadvertent breaches of the rules, especially when it involves behaviours which would have been unthinkable as carrying criminal sanctions just 12 months ago. A further difficulty with sticking to the rules comes from the frequent confusion and inconsistency between the slogans of the government, comments in the media and the lockdown guidance which accompanies the rules. These are often out of sync and not reflective of the underlying law.
Knowing the difference between the guidance and the law is essential, as criminal sanctions for lockdown breaches must be based on the regulations and not the guidance. This distinction was ignored by the police and others on several occasions which have made news headlines.
If you are questioned
Should you find yourself being questioned by law enforcement in connection with a suspected breach of the regulations, it is important to remain professional in all circumstances. The police have a certain amount of discretion when enforcing the law and the government has encouraged police officers to resolve matters through engagement and communication and issue fines as a last resort. Nevertheless, acting in complete disregard for the law or demonstrating an unwillingness to cooperate with instructions from the police risks provoking the exercise of enforcement powers to issue fines or arrest. This includes circumstances where it would be in the interests of public health to arrest and if individuals fail to provide their name and address.
What are the implications for professionals of a fine or conviction?
For businesses which are regulated (such as financial services and law and accountancy firms), if you or one of your employees is fined or convicted of a breach of the regulations there may be ramifications for your or their professional standing with a regulator. Individuals should consider whether the conduct (including conduct outside the workplace) triggers the duty to inform their employer or self-report to the regulator.
It is possible in some situations that criminal conduct may amount to a breach of the employment contract or an internal policy, particularly if an employee’s actions bring the firm into disrepute. The latter may occur where the employee has made online posts evidencing them breaching the rules where a link can be made to the employer. This may put the employee at risk of internal disciplinary action (and may be grounds for dismissal) or could warrant action by the regulators.
When it comes to the question of dismissal, the general rule is that employers do not have the right to dismiss an employee if he or she is charged or convicted with a criminal offence, unless the criminal conduct relates to the employee’s work or suitability for the role.
However, in some situations the employee’s conduct may be within scope of the grounds for summary dismissal: “committing a criminal offence” is often included in the definition of “gross misconduct” in employment contracts and staff handbooks. Employers will then need to consider the link between the criminal conduct and the employee’s work. This assessment will be less clear cut where the breach of Covid rules has occurred in the employee’s spare time rather than where a breach of the rules has a direct connection to the employer, such as breaching self-isolation to attend the workplace.
Practical do’s and don’ts for professionals:
There are a handful of overarching lessons for directors and managers from all of the pitfalls we discuss above. Most importantly, you should where possible anticipate the hazards posed by the pandemic and its economic consequences before they arise. However, when problems do arise, they can be dealt with much more easily when the issues can be detected via clear reporting lines and properly mapped responsibilities. Otherwise, valuable time and energy might be diverted to the blame game and exercises to pass the buck elsewhere, instead of focussing on remedying the problem. Seeking professional advice at an early stage is of course important to mitigate any issues which have arisen.
If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak with your usual Fox Williams contact.
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