Mr D Fitzgerald v Bouygues Energies And Services UK — 2023

The claimant was a maintenance craftsperson at Barnet Hospital. The dispute arose during the Covid-19 pandemic after he refused testing on 9 January 2021 when asked because another member of his team had tested positive, and again on 18 January 2021 when he returned from sickness absence. The tribunal found that discussions about testing had taken place informally in toolbox talks, but it was not satisfied that the claimant had been told that twice-weekly testing was a mandatory requirement before the disciplinary process began.

The tribunal accepted that a requirement to take Covid tests could be a legitimate and reasonable management instruction in a hospital setting and considered the Article 8/HRA issues through the approach in X v Y. However, it found that the respondent’s disciplinary process did not fairly identify what conduct was being relied on. The invitation and dismissal letters referred to repeated refusal of a company and client instruction, acting in a way that put health at risk, and bringing the company into disrepute, but the tribunal found there was no evidence of any express client instruction from the NHS Trust and no proper investigation into what had happened on 9, 11 and 18 January.

On the unfair dismissal claim, the tribunal held that Mr Robinson’s decision was based on assumptions that the claimant already knew about a twice-weekly testing policy and would refuse to comply with it in future. It found that those assumptions were not supported by the evidence, that the hearing shifted from the earlier refusals to a forward-looking ultimatum about future testing, and that no real alternatives to dismissal were considered. The tribunal therefore concluded that the dismissal on 27 January 2021 was unfair.

On remedy-related issues, the tribunal found there was a high likelihood that a fair process would still have led to dismissal if the claimant continued to refuse twice-weekly testing, so it indicated an 80% Polkey reduction to any compensatory award. It also found that the claimant’s conduct justified a 50% reduction to both the basic award and compensatory award under sections 122(2) and 123(6) ERA 1996. The wrongful dismissal claim also succeeded because the respondent had not shown repudiatory breach of contract.