Tribunal win for Ninewells Hospital worker docked pay over wife’s Covid test

A hospital worker who was docked pay after he refused to go to work while his partner was awaiting a Covid test result has secured a payout from an employment tribunal.

Colin Hosie, a former waste operative at Dundee’s Ninewells Hospital, refused to go in after his wife Helen O’Sullivan – a domestic at the same hospital – was asked to take a PCR test due to an outbreak in a ward where she worked.

He was initially told by supervisors that he should stay at home until the test result came back, but was then asked to attend work later the same day.

Mr Hosie refused and the absence, on October 23, 2020, was treated as “unauthorised”.

He has now won part of his case at an employment tribunal after claiming that he suffered a detriment for exercising his right not to attend work due to health and safety fears.

However, he has been awarded just £71.34 – one day’s pay.

In a written judgment, Employment Judge Russell Bradley said: “In our view the claim of detriment for the non-payment of salary on 23 October succeeds.

“We first asked the question; were there circumstances of danger? In our view there were. There is little doubt that Covid-19 is a dangerous virus. It is well known to be fatal and to be highly contagious.

“[NHS Tayside’s] invitation to Ms O’Sullivan to be tested was because of its presence in a ward in which she worked. The claimant was in her household. There was a danger that Ms O’Sullivan had the virus, hence her test. There was a danger that if she had the virus so would the claimant have it.

“We next asked; did the claimant believe that those circumstances were serious and imminent? In our view he did. It was clear from his reaction at the time that he regarded it as serious.

“Had he returned to work on 23 October, he believed he could have been placing his work colleagues in danger.”

The judge added: “It was reasonable for the claimant to treat his understanding of the First Minister’s advice as correct. That advice was clear. It was this; if a person was called for a COVID-19 test they should; go home; stay at home; do not take public transport or a taxi; and anyone else at home with them should also stay at home and await the result of the test.

“[NHS Tayside] did not lead any evidence to suggest that this was not the advice of the Scottish Government at that time.”

Mr Hosie tried to claim that he had been unfairly dismissed by the hospital shortly after the incident, however Judge Bradley rejected this.

The tribunal heard that the bin man began working for NHS Tayside on an agency basis in June 2019, before being moved on to a six month contract in May 2020.

On October 22 that year, Ms O’Sullivan received a call from her supervisor asking her to attend early at work for a covid test as there had been an outbreak of the virus in ward 2 where she had been working.

She attended and took the test before completing her shift.

Afterwards, she told Mr Hosie about the test and he said they should both isolate until the test result came back.

Mr Hosie told his supervisor about the situation and the following morning he was advised that he should stay at home until they had the result.

He later received another call around lunchtime and was advised that, following advice from infection control, he should attend work as normal. The couple did not believe that was in line with government advice and decided not to attend.

Ms O’Sullivan was later told that she would face disciplinary action, while Mr Hosie’s pay was short as the absence was put down as unauthorised.

In subsequent discussions about what happened, Mr Hosie indicated to supervisors that he might not accept any contract renewal offered to him. He later received a letter from NHS Tayside accepting his “verbal resignation”.

However, the tribunal did not accept that this amounted to unfair dismissal.

NHS Tayside did not comment.

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