Supermarket cleaner who tested positive for Covid 'unfairly sacked' for working shift with virus

By Jonathan Humphries & Chloe Burrell

A cleaner who turned up to work at a supermarket while infected with Covid-19 was unfairly sacked, an Employment Tribunal ruled.

Philip Murphy had been for a PCR test the day before his shift at a Lidl store and had not yet received his results when he arrived at work.

Mr Murphy claimed that he had experienced no symptoms, although witnesses said that he appeared unwell on the day and the Lidl store manager in Runcorn, Philip Buxton, described seeing him "coughing in the canteen", as reported by Liverpool Echo.

The cleaner, who is autistic and has dyslexia, was employed by the cleaning contractor Private and Industrial Services Ltd, owned by Kevin Cross.

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

However in a written ruling, Employment Judge Jennifer Ainscough found Mr Cross had not carried out a fair investigation and sacked Mr Murphy without inviting him to any disciplinary meeting.

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

When the Liverpool Echo asked about the judge's conclusions, Mr Cross said: "In hindsight maybe I should have suspended him.

"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 was driving on Wednesday, January 6 last year, when he passed a Covid-19 testing station.

According to Mr Murphy, 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 for his shift the following day at 6am and completed his shift but that evening, at 7.07pm, received a text from the NHS stating his test result was positive.

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

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."

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

Angry about the incident, Lidl manager Mr Buxton told the company Mr Murphy was now banned from the store and warned them not to send him to cover shifts there, or the cleaning 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.

In fact Mr Murphy, who also worked part time at another cleaning contractor, later produced statements from colleagues at that company who said he told them about his positive test but said he was not experiencing any symptoms.

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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