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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 70804
Experience:  Qualified Solicitor
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I have a question regarding breaking self isolation while

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hello, i have a question regarding breaking self isolation while waiting for covid test result
JA: Where are you? It matters because laws vary by location.
Customer: london, UK
JA: What steps have you taken so far?
Customer: I booked an NHS covid test for Friday 9 Oct stating in my test request that i had symptoms but i did not have symptoms. I wanted to use the certificate to travel abroad. I went to work while waiting for results but the test came back positive and i have been self isolating since. I got an email from my employer today inviting me to an investigation next week why I went to work on Mon 12th if I was waiting for test results.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: no

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

How long have you worked there for? Please note this is not always an instant service and I may not be able to reply immediately. However, rest assured that I am dealing with your question and will get back to you today. Thanks

Customer: replied 5 days ago.
are you asking about the lenght of the shift? 7.5hrs

Hi, no sorry I meant how long have you worked for that employer in total?

Customer: replied 5 days ago.
12 years
Customer: replied 5 days ago.
Can I be dismissed for that?

Ok thank you very much, leave it with me please and I will reply tomorrow with your legal position and rights

Many thanks for your patience. I am pleased to be able to continue helping with your query now. First of all, I am sorry to hear about the situation you have found yourself in.

The official legal position is that if you have symptoms and are awaiting a Covid test then you should start self-isolating whilst you are waiting the test results. I appreciate that you did not have symptoms and wanted the certificate for another reason but that then creates other issues, such as dishonesty because you were taking advantage of the system for other purposes.

So either way, there has been wrongdoing on your part - if you told the employer that you had symptoms and were taking a test, you should have self-isolated whilst waiting for the test results. If you go back on this and say you did not actually have symptoms, they can ask why you. Were taking a test in the first place and there is a risk they may find out the real reasons behind it.

The issue with coming into work whilst awaiting the results is that you could be positive and therefore are unnecessarily exposing your colleagues at risk by being in work. It is a health and safety breach on your part and the employer can investigate this and consider taking further action.

The best approach would be to apologise for any errors in judgement and try to play on the apparent confusion with the situation, with ever-changing rules, to say that you were unsure of exactly what is expected of you and had you known you should not be in work, you would of course not have come in.

In terms of dismissal, I would hope the employer does into go that far considering this is all relatively new and the rules can be confusing, plus you have been there a long time.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.

Ben Jones and 4 other Law Specialists are ready to help you
Customer: replied 4 days ago.
Thank you for your advice and prompt reply. I do not think I can play being confused as I did take test and self isolate 2 weeks prior to the current situation. I came back from abroad on 25 Sept and fell ill 28 Sept while at work. I told the employer that I was going to self isolate and take the test as I had some of the symptoms. The test result was negative and went back to work 3 days later but with this I demonstrated that I do understand the process.
I am considering owning up especially as I have unused flight tickets to confirm my story. By this I will be admitting trying to take advantage of the system but not exactly being dishonest to my employer. I checked with one of private test providers if I have to self isolate while taking the test for travel purpose and they said not if I don't have the symptoms. I can however say that I was confused regarding where I can test privately and did not know that I was not supposed to use NHS testing for travel and this is actually true because I rushed to do the test first to get the results in time before my planned flight and only researched the details and found that I should not do it later. As for the length of service - I have always been extremely honest and reliable employee however my long service can be a two-edged sword I am afraid. In current situation when lots of employers have to consider redundancies my 12 years means that they would have to pay me 12+ weeks of redundancy pay so they may look for opportunities to get rid of some employees with no extra cost to the company...
What would be your advice in this situation? Is my taking advantage of NHS reason enough to be dismissed?
Customer: replied 4 days ago.
if I do get dismissed will I stand a chance taking my employer to Employment Tribunal?
Customer: replied 4 days ago.
to add to the story, I could not find a pharmacy or a clinic doing covid tests in my area. I found some doing the antibody tests but not the PCR swabs so I really did not know where to get the test

Hello, thank you for your further queries, I will be happy to answer these. The issue with predicting what the outcome may be is that it depends entirely on the employer – how they view this, how serious they believe it is, have they lost trust in you completely, do they have ulterior motives for potential dismissal and so on. What may not be considered serious enough for dismissal by one employer may be seen as sufficient to justify that by another. Until you know whether there is a dismissal and specifically, the grounds used by the employer, it is difficult to say what to do to take it further and if it is worth it

Customer: replied 3 days ago.
Hello, thank you for helping me with my query. I appreciate your insight in this matter. I do have one more final question for you. As we both think the outcome of my investigation depends entirely on my employer, I am worried that if they are looking to made some staff redundant I am an easy target now and it would be easy to dismiss me for dishonesty even if the dishonesty itself was not towards my employer. However, this can only happen if it can be proven that I deliberately misused the NHS service (is this even a punishable crime?) rather then was not aware of that I cant use it for traveling purposes. Am I right here?
So, I am probably worried excessively about it but assuming the worst scenario - a dismissal, can I take the matter to Employment Tribunal? Would it stand a chance? Or should I rather offer my resignation, if given the chance and thus save my work references score?
I would appreciate your opinion on this.
Customer: replied 3 days ago.
My employer is a high street bookmaker and my role in the company is a Betting Shop Branch Manager

Hello again, it is not quite correct that the employer has to prove your intentions before they can dismiss. I will explain how the process works.

Alleged misconduct is a common reason for dismissing an employee and it is also one of the potentially fair reasons for dismissal under the Employment Rights Act 1996. It could be either due to a single serious act of misconduct or a series of less serious acts over a period of time.

In order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:

- Conducts a reasonable investigation

- Follows a fair disciplinary procedure

- Has genuine belief the employee was guilty; and

- Shows that dismissal was a decision that a reasonable employer would have taken in the circumstances

The requirements of proof are not as stringent as in criminal law and an employer is not expected to prove beyond reasonable doubt that the alleged misconduct had definitely occurred. A decision on the balance of probabilities will be sufficient and a dismissal can be fair if the employer can show that it had met the above criteria, namely conducting a reasonable investigation, following a fair procedure and holding a genuine belief that the employee was guilty. Finally, it must show that dismissal was an outcome, which a reasonable employer would have taken in the circumstances.

Only if there is evidence that the employer has not followed a fair procedure as outlined above, the outcome can be formally appealed with the employer. After that, a claim for unfair dismissal can potentially be made in the Employment Tribunal but only if it is clear that a fair procedure has not been followed.

If you are convinced they are looking to dismiss, you could indeed try and negotiate with them over a mutually agreeable exit, to at least prevent a dismissal being on your record.

I hope this clarifies things for you a little bit more.