ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case no 4110737/2021 Held at Edinburgh on and March 2022 Employment Judge W A Meiklejohn Ms Karen Shanks v Represented by: Mr M Horn - Representative Lothian Health Board — 2022

The claimant, a catering assistant at Edinburgh Royal Infirmary, was dismissed on 27 May 2021 after repeated disputes about the requirement to wear a face mask properly during the Covid-19 pandemic. The tribunal recorded that her complaints about overtime and holiday pay were settled by mutual agreement and dismissed under Rule 52, leaving unfair dismissal and breach of contract (notice pay) for decision.

Applying section 98(4) ERA 1996 and the authorities it cited, including Burchell, Iceland Frozen Foods and Sainsburys v Hitt, the tribunal found that the respondent had a reasonable belief that the claimant had misconducted herself by failing to wear the mask properly, had grounds for that belief from the witness evidence gathered in the investigation, and had carried out as much investigation as was reasonable. It also held that the instruction to wear the mask properly was reasonable, noting the respondent's risk assessment, the Scottish Government guidance referred to in Ms Butler's 11 January 2021 letter, and the respondent's duty to manage health and safety in the workplace.

The tribunal rejected the claimant's argument that the respondent had to provide the scientific evidence she demanded before she was required to comply. It found that the issue was reasonableness of the employer's conduct, not whether the tribunal was satisfied on the science of face masks. On that basis, it held that dismissal, including summary dismissal, was within the band of reasonable responses and was not unfair.

On breach of contract, the tribunal accepted that the claimant was subject to an implied obligation to comply with lawful instructions. It found that her persistent failure to wear the mask properly, despite repeated requests, amounted to a deliberate and wilful contradiction of the contract of employment and was sufficiently serious to justify termination without notice. The notice pay claim therefore failed and no monetary award was made.