EAT Upholds Employer's Right to Enforce COVID-19 Mask Policy in Shanks v Lothian Health Board Case

Citation: [2023] EAT 148
Judgment on

Introduction

In the case of Karen Shanks v Lothian Health Board ([2023] EAT 148), the Employment Appeal Tribunal (EAT) addressed the appeal of Ms. Shanks against her summary dismissal for gross misconduct, stemming from her refusal to comply with the respondent’s policy on face mask wearing during the COVID-19 pandemic. The EAT focused on whether the regulations requiring mask use were legally sound and the reasonableness of the employer’s actions in enforcing such regulations.

Key Facts

Ms. Shanks, who was employed by the respondent as a catering assistant, disputed the scientific basis of mandatory mask-wearing per Scottish Government guidance. As a result, disciplinary proceedings were initiated, culminating in her summary dismissal for gross misconduct. Her claims for unfair dismissal and breach of contract were dismissed by the Employment Tribunal, prompting her appeal.

During the appeal, it was contended that the requirement for mask-wearing should be considered ‘medical treatment’ and thus, outside of the legal powers granted by the Coronavirus Act 2020, specifically Schedule 19, paragraph 3. Her representative argued that the failure of the Lothian Health Board to provide scientific evidence for the necessity of mask-wearing was unreasonable and amounted to a breach of the common law principles set in Montgomery v Lanarkshire Health Board ([2015] UKSC 11).

The key legal principles discussed in the appeal were:

  • The interpretation of ‘medical treatment’ within the Coronavirus regulations;
  • The reasonableness of an employer’s actions in enforcing regulations and policies inspired by guidance;
  • The Employment Rights Act 1996 (ERA 1996), specifically section 98(4), which outlines the ‘range of reasonable responses’ test in assessing the fairness of dismissals;
  • The role of the Employment Tribunal in applying this test and not substituting their judgment for that of the employer.

The Tribunal cited Lord Hope in Imperial Tobacco Ltd v Lord Advocate ([2012] UKSC 61), which emphasized giving statutory words their plain meaning. The EAT agreed with this approach, ultimately concluding that wearing a mask did not constitute ‘medical treatment’ within the meaning of the exception in paragraph 3 of Schedule 19 of the Coronavirus Act 2020. Furthermore, the Tribunal upheld the principles laid out in Iceland Frozen Foods Ltd v Jones ([1983] ICR 15), confirming their approach to unfair dismissal law.

Outcomes

The EAT found no error of law in the Employment Tribunal’s judgment. The EAT held that the mask-wearing requirement did not fall within the definition of ‘medical treatment’ as argued by the appellant and was not ultra vires. Therefore, the regulations and guidance were legitimate, and the respondent acted within the range of reasonable responses in enforcing the mask policy. Consequently, the EAT refused the appeal, upholding the dismissal as fair and the Employment Tribunal’s conclusions as legally sound.

Conclusion

The EAT’s decision in Shanks v Lothian Health Board reinforces the principle that employers are allowed to enforce government health guidelines and take disciplinary actions against employees who refuse to comply, as long as such enforcement is reasonable and within the legal frameworks. The case also underscores the importance of adhering to statutory definitions and highlights the limitations of the Employment Tribunal in substituting their assessment for that of the employer when evaluating the fairness of dismissals under the ERA 1996.