Mr M Scharf v JOP Ltd and 1 other — 2023

This was an open preliminary hearing to decide whether Mr M Scharf was a disabled person for the purposes of s.6 Equality Act 2010, whether any disability caused an inability to wear a mask, and how to deal with an amendment application. The tribunal noted that the claimant had withdrawn any religion or belief claims and relied instead on seasonal asthma and anxiety/depression in support of his disability claims.

The tribunal found that the claimant had a period of depression from January or February 2019 to the end of April 2019, with an adverse effect on eating, sleeping, exercise and getting out of bed, but held that this did not amount to a long-term impairment at the relevant time in December 2021. It also found that asthma was not proved: the medical evidence showed recurrent chest infections and a single 2016 prescription for Salbutamol, not an ongoing diagnosis or regular treatment for asthma.

On the mask issue, the tribunal accepted that wearing a Covid-19 face covering could in theory be a day-to-day activity during the pandemic, but found that Mr Scharf had not shown that any impairment affected his ability to wear one. It found that he had not in fact worn Covid-19 masks at work, and that his refusal to wear them was because he considered them ineffective and described them as a "mark of slavery", rather than because of asthma, anxiety or depression. Even if he had been disabled, the tribunal found that the claimed impairments did not cause an inability to wear a mask. The disability discrimination claims were therefore dismissed.