Karen Shanks v Lothian Health Board

A requirement to wear a face mask as a health and safety measure during a pandemic is not, on its ordinary meaning, medical treatment for the purposes of paragraph 3 of Schedule 19 to the Coronavirus Act 2020. The statutory prohibition on regulations compelling medical treatment therefore did not render face-covering regulations or associated guidance invalid.

Where the legal basis for the employer’s requirement was valid, the Employment Tribunal was entitled to apply the established reasonableness test to the dismissal. An appellate tribunal must not substitute its own view for that of the employer or the Employment Tribunal.

The appellant, a catering assistant at Edinburgh Royal Infirmary, was required to wear a face mask under her employer’s pandemic policy. She disputed the scientific basis for the requirement, did not fully comply, and was summarily dismissed for gross misconduct in May 2021.

The Employment Tribunal dismissed her claims for unfair dismissal and breach of contract in a judgment dated 29 April 2022. On appeal, the appellant contended that face masks were prophylactic medical treatment. She argued that paragraph 3 of Schedule 19 to the Coronavirus Act 2020 prevented regulations requiring their use, so that the employer had acted unreasonably in relying on regulations and guidance.

The central issue was whether compulsory mask wearing was medical treatment within that statutory exception.

1. Appeal refused. The Employment Appeal Tribunal held that the Employment Tribunal had made no error of law in dismissing the claims for unfair dismissal and breach of contract.

2. The proper construction of paragraph 3 of Schedule 19 to the Coronavirus Act 2020 was governed by the ordinary meaning of its words. Although “prophylactic” can describe something intended to prevent disease, it appeared within the phrase “medical treatment”. In its ordinary sense, that phrase concerned treatment prescribed or administered under the guidance or direction of a medical professional.

3. The reference in paragraph 3(2) to vaccination supported that construction. The purpose of the exception was to prevent regulations compelling people to undergo medical treatment against their will. It did not extend to a public-health measure intended to reduce viral transmission, such as wearing a mask. Such measures were expressly addressed by Schedule 7 to the Health Protection (Coronavirus) (Restrictions and Requirements) (Scotland) Regulations 2020 (SSI 344).

4. Accordingly, the regulations and guidance could legitimately found the employer’s mask requirement. The appellant’s reliance on Montgomery did not arise and would not in any event have succeeded.

5. The appellant accepted that, if that construction was wrong, there was no challenge to the Tribunal’s application of the unfair-dismissal test. The EAT nevertheless confirmed that the Tribunal had identified and permissibly applied the relevant tests for unfair dismissal and breach of contract. Its approach was unimpeachable.

• Employment Appeal Tribunal: appeal refused; the Employment Tribunal’s dismissal of the unfair dismissal and breach of contract claims was upheld in [2023] EAT 148.
• Employment Tribunal: by a judgment dated 29 April 2022, dismissed the claims for unfair dismissal and breach of contract.