(Three) best feet forwards – Self-Isolation and Unfair Dismissal – The Isle of Man Leading the Way

Jackie Reid v The Good Health Store Limited 20/44- EET – (Isle of Man)

In March 2020, on advice from her GP, Mrs Reid entered a period of self-isolation for two weeks. She was particularly concerned about the potential impact of Covid-19 on her family, as she is a Type 1 diabetic and her husband in his 70s. The complainant informed her employers on 17 March that she would be required to self-isolate, potentially up to 12 weeks, but would update them when she knew more. On 31 March, having been informed that she only needed to isolate for the two weeks, she had an appointment with her employer, informing them that she was able to return to work immediately. This was rejected, and Mrs Reid received no contact from her employer. On advice from the Manx Industrial Relations Service (an ACAS equivalent it seems), she wrote to her employers to ask what her employment status was. Her employers were of the view that she had resigned on 16 March.

The employer maintained the defence at trial that Mrs Reid had resigned on 16 March. The tribunal disagreed, noting that Manx law and English law are as one on this point, that the employer must accept the repudiatory conduct and terminates the contract. Therefore, the date of termination by the employer was 31 March, not 16 March.

However, the fundamental question was whether the employee’s conduct could be taken to be repudiatory conduct in the circumstances prevailing in March of this year. Was it reasonable and consistent with the equity and substantial merits of the case to consider that there had been repudiatory behaviour?

The Employment and Equality Tribunal decided that Mrs Reid’s conduct was not repudiatory conduct, she had taken the appropriate advice from government and her doctor, and had followed it correctly. (The tribunal noting that the advice at that point in time, “whether from experts on the Island or from the United Kingdom or indeed from other countries in Europe, was far from clear or consistent – something that still prevails to an extent even now.”)

Therefore, the employer’s decision to terminate Mrs Reid’s employment on 31 March was the employer’s alone and there were no fair circumstances justifying such a termination without warnings or notice.

Although a separate legal system from that of England and Wales, Manx employment law is heavily influenced by English law, and borrows many key concepts. As a result this case, in my view, likely carries a similar weight to a first instance decision from an English or Welsh Employment Tribunal. (It appears that the Manx Tribunals may not be so heavily backlogged as ours are, so have had the opportunity to consider this issue at an earlier point in time.)

Therefore, this case is a good indication of how tribunals will treat employees who have done the right thing and followed the relevant medical and government advice as best they could; it would be somewhat perverse to treat an employee who self-isolated as having committed repudiatory conduct.

There are also good policy reasons for this decision to be followed on the mainland. At this point in time, it is important that people know, when they face the need to self-isolate in accordance with both guidelines and legal requirements, that at the end of it they will still have a job to return to.

Alec Small