Latest in Employment Law>Case Law>Shanks v Lothian Health Board [2023] EAT 148
Shanks v Lothian Health Board [2023] EAT 148
Published on: 14/12/2023
Article Authors The main content of this article was provided by the following authors.
Jason Elliott BL Lecturer in Law and Barrister
Jason Elliott BL Lecturer in Law and Barrister

Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University.  As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal.   At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.

Background

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)

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 14/12/2023