A tribunal ruled that the hospital maintenance worker who refused to take Covid tests at work was wrongfully and unfairly dismissed.
In the London tribunal Mr D Fitzgerald claimed that his employer’s, Bouygues Energies & Services (BES), instructions to take two weekly Covid tests, and the subsequent dismissal of him for refusing, were both infringements of article 8 of the Human Rights Act.
While the tribunal ruled that such a requirement, given his role in a hospital, was reasonably necessary by BES, his dismissal was “not reasonable”, as it did not properly inform him of the company’s policy on testing, following his reluctance to take tests.
Fitzgerald was employed by BES as a maintenance craftsperson at Barnet Hospital, and was responsible for general repair work.
Throughout 2020 as the pandemic emerged, the employer carried out several risk assessments, and the outcomes were communicated to the team during toolbox talks. These included social distancing, and the eventual decision for facemasks to be worn.
The tribunal heard that Michael Foley, BES’s contract manager at the hospital, and general manager Paul Robinson, both spoke to Fitzgerald about his “attitude in general” towards Covid procedures.
Foley told the tribunal that Fitzgerald was “sceptical about Covid and the risk it posed” – with both having to give him informal, verbal reminders about wearing a mask and following proper precautions. Fitzgerald did not dispute this.
In late 2020, there were discussions in the toolbox talks about testing – initially only required if someone had symptoms – with suggestions that once lateral flow tests became available, BES workers would also be required to test twice a week.
However, Fitzgerald said he “could not recall” any specific discussion about testing and it “just didn’t click with him”. He also claimed he was unaware that lateral flow tests existed, and that he did not think he would need to do one as he was “pretty healthy”.
The tribunal found it was not Fitzgerald’s responsibility to know that regular testing would be a requirement, as BES failed to provide evidence of clearly informing employees about a change in policy.
Alan Lewis, partner at Constantine Law, noted the use of the Human Rights Act was not “seen very often” in tribunal cases and, while it could be an infringement, BES’s instructions were justified.
“Although an instruction to regularly test for Covid does potentially engage article 8, the tribunal was satisfied that such a requirement could be reasonably necessary and therefore an instruction to take such tests can be a legitimate and reasonable management instruction,” said Lewis, who added that the failure of Fitzgerald to comply was the reason for dismissal and was “justified as an interference” with his article 8 rights.
(Source: People Management)
(Photo Credit: Dean Calma / IAEA)
