In a recent decision, the Glasgow, Scotland, Employment Tribunal held that an employee who suffered from vertigo and consequently refused to comply with the employer’s policy of requiring the wearing of face coverings in the workplace, was dismissed fairly and without discrimination.
The employer operates a number of warehouses that produce and distribute lifesaving medication for use in hospitals, U.K. National Health Service health services and pharmacies. During the pandemic, demand for products increased significantly and the staff employed were classed as key workers.
The claimant was employed as a warehouse operative.
Given the nature of the product manufactured, which was likely to be taken by vulnerable patients, it was essential that the employer took as many precautionary steps as were practicable to minimize—if not extinguish—the risk of COVID-19 in the workplace. The employer therefore took COVID-19 and risk seriously and expected staff to do so the same. As part of this, mandatory wearing of face masks was introduced.
The claimant refused to wear a face mask and was therefore sent home. The claimant subsequently reported as sick and disclosed that she suffered from vertigo, meaning that she was unable to wear a face mask.
The employer consulted with the claimant in an attempt to find an alternative and facilitate a return to work. Working alone was not possible and given the nature of the claimant’s role she was unable to work from home. Staggered start and finish times were not feasible, as staff needed to pass through communal areas to get to their workstation. The employer suggested different types of face coverings but the claimant refused to give them a try. After being absent for 12 months, the claimant resigned and brought claims of constructive unfair dismissal, indirect disability discrimination and failure to make reasonable adjustments.
The tribunal found that the claimant’s vertigo amounted to a disability. However, the tribunal was satisfied that, although the employer had applied a policy requiring the mandatory wearing of face masks in the workplace, it was justified. The policy had a legitimate aim to protect the health and safety of the workforce by reducing the risk of the virus spreading, which in turn also protected the supply chain and the vulnerable people who depended on the employer’s products. Further, there were no other options that could have been adopted that would achieve this aim.
The tribunal was also satisfied that the employer had done all it reasonably could to consult and work with the claimant to remove any disadvantage caused to her by the policy. This included offering other types of face masks that were not in contact with her nose or mouth but still reduced the risk of transmission.
With respect to the constructive unfair dismissal claim, the tribunal held that the claimant was unable to return to work because she was unable to comply with the employer’s policies, which had been introduced for cogent, fair and lawful reasons. Accordingly, there was no fundamental breach of contract by the employer.
Therefore, all claims were dismissed by the tribunal.
While only a first instance decision and therefore other tribunals are not bound to follow it, this case gives a level of comfort to employers that may wish to adopt similar policies where the risk of transmission of COVID-19 and other infectious diseases could have serious consequences, such as for those working in health and care. The decision appears to show that, even in the absence of compulsory government guidance, in appropriate settings, the courts are willing to balance the rights of individuals with the rights of the employer where there are compelling reasons for doing so, such as in circumstances where there is a resurgence of COVID-19 and flu and the need to protect staff in order to maintain staffing levels to provide adequate care.
However, this case also highlights the importance of identifying staff who may be disadvantaged by such a policy and consulting with them to seek an alternative solution, as the duty to make reasonable adjustments remains.
Helen Badger is an attorney with Browne Jacobson LLP in Birmingham, England. © 2023 Browne Jacobson LLP. All rights reserved. Reposted with permission of Lexology.