G Masiero & Ors v Barchester Healthcare Limited
[2024] EAT 112
Karen Shanks v Lothian Health Board
24 November 2023
[2023] EAT 148
Employment Appeal Tribunal
A worker was fired for not wearing a mask at work during the pandemic. She argued the company wasn't legally required to enforce mask-wearing. The court disagreed, saying mask-wearing isn't 'medical treatment' and the company acted reasonably in firing her.
Key Facts
- •Karen Shanks, a catering assistant, was dismissed by Lothian Health Board for refusing to wear a face mask during the COVID-19 pandemic.
- •Shanks claimed unfair dismissal and breach of contract.
- •The Employment Tribunal dismissed her claims.
- •Shanks appealed, arguing the Health Board's mask policy was not legally mandated and therefore her dismissal was unreasonable.
Legal Principles
Unfair dismissal: An employer's actions must fall within the range of reasonable responses.
Iceland Frozen Foods Ltd v Jones [1983] ICR 15
Statutory interpretation: Words in statutes should be given their plain meaning.
Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61
Risk assessment: In the absence of specific regulatory definition, common law principles (e.g., Montgomery v Lanarkshire Health Board) may apply.
Montgomery v Lanarkshire Health Board [2015] UKSC 11
Coronavirus Act 2020, Schedule 19, paragraph 3: Regulations cannot require medical treatment, including prophylactic treatment.
Coronavirus Act 2020, Schedule 19, paragraph 3
Health Protection (Coronavirus) (Restrictions and Requirements) (Scotland) Regulations 2020 (SSI 344): Addresses face covering requirements.
Health Protection (Coronavirus) (Restrictions and Requirements) (Scotland) Regulations 2020 (SSI 344)
Outcomes
Appeal refused.
The court found that the requirement to wear a face mask was not 'medical treatment' as defined in the Coronavirus Act 2020, and therefore the Health Board's policy was not ultra vires. The Employment Tribunal's approach to unfair dismissal was deemed correct.