Cleaner 'unfairly sacked' after working in Lidl with Covid, tribunal rules

By Jonathan Humphries & Erin Santillo

A cleaner who worked a shift at Lidl while infected with Covid-19 was unfairly sacked, an employment tribunal has ruled.

Philip Murphy, who was fired from his job at cleaning contractor Private and Industrial Services Ltd, had not received the results of a PCR test when he arrived at the store in Runcorn, Cheshire, last January.

He received confirmation from the NHS that he was positive for the virus after his shift had ended.

Mr Murphy, who is autistic and dyslexic, claimed he had experienced no symptoms and took a test on a whim after passing a testing site the previous day, reports the Liverpool Echo.

But witnesses at the Lidl branch said he appeared unwell on the day, the tribunal heard, and store manager Philip Buxton described seeing him "coughing in the canteen".

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.

Mr Cross said he was disappointed with the tribunal's ruling, adding he believed Mr Murphy had "put lives at risk".

"In hindsight maybe I should have suspended him", he said.

"Mr Boris Johnson told us to stick by the rules. I was trying to stick by the rules, but Mr Johnson didn't stick to them himself, did he?

"I spoke to the council about this case and they used us as an example to other businesses about taking the pandemic seriously.

"It is a lesson learned."

Mr Murphy told the tribunal he passed a coronavirus testing site while driving on January 6 last year.

He said he decided to go and get tested despite not experiencing any symptoms.

Private and Industrial Services Ltd claimed the testing centre was not a walk-in site offering the rapid lateral flow tests but was intended for people experiencing symptoms who had booked the more sensitive PCR tests online.

The tribunal heard Mr Murphy arrived at Lidl the following day at 6am and completed his shift. That evening, at 7.07pm, he received a text from the NHS stating his test result was positive.

He informed his manager, who then spoke to store manager Mr Buxton.

Lidl supermarket on Edwards Road, Runcorn (Google Maps)

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.

Angry about the incident, Mr Buxton told the cleaning firm that Mr Murphy was now banned from the store and warned them not to send him to cover shifts there else their contract "would be in jeopardy".

Although Mr Cross had initially offered to find Mr Murphy work on another site, the company held a meeting on January 18 and made the decision to fire him.

He was not asked to provide evidence and was unable to challenge the claims, including contradictions between the evidence of Mr Buxton and Ms Murray.

Mr Murphy, who also worked part-time at another cleaning contractor, later produced statements from colleagues who said he told them about his positive test but was asymptomatic.

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.

She wrote: "During the course of this hearing the claimant provided evidence of the signs at the test centre which said that it is a non-symptomatic Covid site and a walk-in centre that did not require appointments.

"The claimant gave evidence that he sat alone in the canteen and did not speak to either Stephen Ainsworth or Sarah Murray about any symptoms.

"The respondent was not aware of this evidence because it did not ask the claimant for his account.

"Whilst the respondent relies on the fact that the claimant had a PCR test and was therefore symptomatic, there was a lot of confusion in the midst of the pandemic, and particularly in January following a second lockdown, as to the tests available.

"In fact, Merseyside was a pilot site for testing. In January 2021 the government guidance was that if you had symptoms, you should isolate.

"However, it is not clear whether the claimant was offered a PCR test in error and the fact that he took a PCR test does not lead me to conclude that he had symptoms and was required to isolate."

Judge Ainscough said that, in light of the failure to conduct a proper disciplinary process, the decision to sack Mr Murphy was not reasonable and proportionate.

A further hearing will be conducted to determine how much compensation should be awarded to Mr Murphy.

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