R Taggart and J Lindsay Ms M King v Partnership in Care Scotland Ltd — 2022

The tribunal treated the relevant period for disability status as 4 November 2021 to 21 December 2021. It accepted that COPD was a physical impairment, but found that the claimant did not prove it had a substantial adverse effect on her day-to-day activities during that period, or that any such effects were long-term. The tribunal noted that her limitation on walking came from peripheral vascular disease rather than COPD, that she could do cooking and cleaning at home and at work, and that the Scottish Government exemption card she obtained in August 2021 was a self-declaration card and did not create a legal exemption from hospital mask requirements.

Because disability was not proved, the Equality Act claims were dismissed for lack of jurisdiction. The tribunal also said that, even if disability had been established, the s15 discrimination arising from disability claim would have failed because requiring a mask in a hospital setting was a proportionate means of achieving the legitimate aims of complying with the law and protecting staff and service users. The s20 reasonable adjustments claim would also have failed because exempting the claimant from mask-wearing, or treating a risk assessment as the relevant adjustment, would not have been reasonable in circumstances where mask-wearing was mandatory.

The harassment complaint based on CM's comments on 4 November 2021, including that the claimant would not win, was rejected because the tribunal found those comments would not reasonably have the prohibited effect. The unlawful deduction from wages claim failed because the contract stated that breaks were unpaid and the claimant did not show any separate legal entitlement to be paid for missed breaks. No award was made.

The unfair dismissal claim also failed. The tribunal found no fundamental breach of contract or breach of the implied term of trust and confidence. It held that the respondent had reasonable and proper cause to require a face mask once the legal position was recognised, and that the collective grievance about breaks had been discussed and addressed through staggered breaks and a designated part of the dining room. The claimant was therefore not dismissed within s95(1)(c) ERA 1996.