The carer was one of a team employed by the mother to look after her daughter, who suffers from cerebral palsy and is particularly susceptible to infection. On Friday, 20 March 2020, she went to the pub with her partner and a friend. At almost exactly the same time, the Prime Minister addressed the nation and urged people to avoid pubs, bars, clubs and restaurants. Lockdown was imposed three days later.

After the carer had been on furlough for some months, she was suspended on the basis that there had been an irretrievable breakdown in her relationship with her employer. Following a disciplinary process presided over by a consultant, she was dismissed. The dismissal letter made no mention of her visit to the pub.

In upholding her unfair dismissal complaint, an Employment Tribunal (ET) found that the principal reason for her dismissal was the mother’s conviction that she had gone to the pub in breach of the Prime Minister’s guidance and that, in turn, could impact on her daughter’s health and wellbeing. That amounted to some other substantial reason that could potentially have justified her dismissal.

The Prime Minister had previously warned against congregating in hospitality venues but there was no cogent evidence that the carer heard his speech on the relevant evening. At most, people were at that point being encouraged not to gather in pubs and other crowded spaces. Her trip to the local pub was entirely lawful and not in breach of any instruction given to her by her employer.

She had testified that she observed social distancing in the almost empty pub, also using hand sanitiser, and the ET gave some weight to her assertion that she had been at no greater risk of infection than if she had been out shopping. She did not return to work before being placed on furlough the following Monday and her action had thus put her charge at no additional risk.

Given the special nature of personal care relationships, the ET acknowledged that it was not an easy case and cautioned itself against substituting its own view of the carer’s conduct for that of the employer. Overall, however, it found that her dismissal did not fall within the range of responses open to a reasonable employer.

The ET ruled that the amount of the carer’s compensation should be reduced by 20 per cent to take account of her own culpable conduct. Given the Prime Minister’s previous warning, it would have been wise for her to stay away from the pub and she could have given a more comprehensive explanation of her conduct during social media exchanges with her employer. The amount of her award would be assessed at a further hearing, if not agreed.