Mrs Nadine Jolly v The Secretary of State for Justice — 2023

The claimant was employed as a prison officer entry level trainee from 4 May 2021 until her resignation on 18 June 2021. She had asthma and said she could not wear a face mask. The respondent required staff, including trainees, to wear fluid resistant surgical masks in specified red areas during the Covid-19 period, and made interim arrangements for the claimant to work and access training from an external office while it sought occupational health input and considered options.

The tribunal was not satisfied that the claimant had proved a qualifying disability at the material time. It accepted that she had asthma, but found the medical records and other evidence did not establish a substantial and long-term adverse effect on normal day-to-day activities. It gave limited weight to the occupational health statement on disability because it was unreasoned and the disability issue was for the tribunal.

On the section 15 claim, the tribunal found the claimant had not shown that her decision not to wear a mask was something arising in consequence of asthma. It also found that the respondent's legitimate aims, including protecting staff and others from Covid-19 risk and complying with health and safety guidance, were made out and that the mask requirement was proportionate.

The reasonable adjustments claim failed because the claimant had not established that asthma prevented her wearing a face mask or substantially disadvantaged her in carrying out prison officer duties. The proposed visor would not have avoided the alleged disadvantage given the justified requirement for masks in red areas, and the tribunal considered the respondent's interim arrangements reasonable. The indirect disability discrimination claim failed because the claimant had not shown she was within the comparison group of disabled persons unable to wear masks by virtue of disability; the tribunal also said the PCP would have been justified.