Shanks v Lothian Health Board [2023] EAT 148

Appeal against the dismissal of the Claimant's claim of unfair dismissal. Appeal dismissed.

The Claimant worked as a catering assistant at Edinburgh Royal Infirmary during the pandemic. The Respondent required its employees to wear facemasks in accordance with the prevailing Scottish Government guidance on that topic, underpinned by Regulations promulgated from time to time under the Coronavirus Act 2020. The Claimant disagreed with this requirement, querying the scientific basis underlying the guidance, and providing to her employers material she herself had ingathered that pointed against the necessity for, or efficacy of facemasks. She requested the Respondent to supply her with the scientific basis upon which it asserted masks ought to be worn. She continued to refuse to wear a face mask and was eventually dismissed. She lost her unfair dismissal claim at the ET and appealed. The key question in the appeal was whether there was guidance which obliged the Respondent to act in the way that it did. In short, if they were not bound by guidance or legislation to enforce mask wearing, then they had not acted reasonably in requiring this to be done. The Claimant submitted that an exception to the general power to make regulations included prophylactic treatment and that face masks fell under the definition of prophylactic treatment, therefore the Scottish Government was not empowered to make regulations requiring their use and any purported attempt to do was ultra vires.

The EAT dismissed the appeal. The intention of the exception was clearly to prevent regulations being laid with the purpose of compelling a person or people to submit to medical treatment against their will. The context of the then prevailing pandemic was an important one. The exception was not, read fairly, envisaging health and safety measures directed to minimising the risk of spreading a virus, such as the wearing of a mask.

Published: 12/12/2023 15:06

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