E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4110496/20215 Held on January and February 2022 (Members Meeting) Employment Judge J M Hendry Members Mr F Parr Mr P Kennedy Mr Zygimantas Naglius v Lifescan Scotland Ltd — 2022

The claimant was an agency worker at the respondent’s manufacturing facility and the respondent accepted that he was disabled by reason of anxiety and panic attacks. The dispute concerned the respondent’s policy requiring masks in communal areas during the Covid-19 pandemic. The tribunal found that there was no actual knowledge of the disability at the time the claimant first challenged the mask requirement, but that by 26 April 2021 the claimant’s email, together with the agency contact’s note of his anxiety and difficulties wearing a mask, made the condition and possible disability clear enough to require further enquiries.

On the section 20 reasonable adjustment claim, the tribunal found that the mask requirement in communal areas was a provision, criterion or practice that placed the claimant at a substantial disadvantage because it heightened his anxiety and caused light-headedness, feelings of suffocation and chest pain. It held that the respondent should have made further enquiries and that, allowing for the time needed to do so, there was a period of about two months from 26 May 2021 until the GP letter dated 27 July 2021 during which the claimant was still required to wear a mask in communal areas. That failure to make a reasonable adjustment was upheld, and the tribunal awarded £2,000 for injury to feelings, assessed on the lower Vento scale.

The section 15 discrimination arising from disability claim was dismissed. Applying the Pnaiser approach to causation, the tribunal held that the claimant was not required to wear the mask because of something arising in consequence of his disability. The mask rule was a general pandemic measure and the tribunal did not accept that the necessary causal link between the disability and the treatment was established on the facts found.