Background:

The claimant was employed by the respondent as a catering assistant.   During the pandemic, the respondent required employees to wear face masks in compliance with the Scottish Government Regulations under the Coronavirus Act 2020.  The claimant disagreed with this and asked the respondent to provide the scientific basis for wearing masks.

Disciplinary proceedings were brought against the claimant for her refusal which led to dismissal for gross misconduct.  The claimant brought a claim for unfair dismissal.

Outcome:

The claimant made an argument based upon Schedule 19, Paragraph 3 of the Coronavirus Act 2020 which stated that individuals could not be required to undergo medical treatment including vaccination or other prophylactic treatments. She argued that the requirement to wear a mask fell within this exception and in turn the Scottish Government mandating the wearing of masks was beyond their powers.  The Tribunal, at first instance, rejected this argument and rejected the claimant’s claim.  The claimant appealed to the EAT.

The EAT rejected the appeal.  The EAT held that the words in the statute should be given their plain meaning.   To this end, medical treatment could not be regarded as having the connotation outlined by the claimant vis-à-vis wearing face masks.  The exception within the 2020 Act was not designed to restrict health and safety measures designed to minimise the risk of spreading the virus.

Practical Guidance for Employers:

There are still cases coming through the Tribunals relating to actions and inactions during the pandemic.  This case was the thorny issue of mandatory mask wearing and the Tribunal held that there was no legal basis for an outright refusal or exception based upon it being ‘medical treatment’.   Therefore, the Tribunal were able to find that the dismissal in the circumstances was fair.

The full case is available here:
Karen Shanks v Lothian Health Board: [2023] EAT 148 - GOV.UK (www.gov.uk)