The miner (or the pool) is also running a full node that doesn't accept version 1 witness program on its old node since it would see it as non-standard.
The only possible outcome of not upgrading is building on top of an invalid block. This is also unlikely because as I said above miners won't include anything they can't validate so it is already unlikely to see an invalid block.
A malicious miner could mine an invalid block intentionally but it costs a lot of money (wasted) and again we have the same arguments about propagation, the nodes won't propagate the block to reach the other miner to build on top of.
The miners' nodes are also more-or-less all connected to each other because the miners all want to be able to start mining on top of the most recent block as quickly as possible and waiting for blocks to naturally propagate throughout the network can take precious seconds (or longer) that a miner would be spent on building on top of what is not the most recent block. This means that any block that is propagated by a major miner, valid or otherwise will generally be seen by the other miners.