Was the requirement to wear a face mask discriminatory?

Background

This case has the involvement of Mr AB, a claims adjuster, employed by the company CD Ltd (CD), who during the COVID19 pandemic refused to be present at the office during work due to the mandatory requirements of face masks.

The reasons for his refusal of the face mask included the following:

1. Use of face masks would cause more frequent panic attacks, and he had a propensity to suffer such attacks, which was a disability;
2. His beliefs in personal autonomy and dignity amounted to a protected belief, giving him the right to refuse to wear a face mask.

Accordingly he brought claims for discrimination on the grounds of religion and belief and also disability.

EAT Decision

The Employment Tribunal dismissed his claims but Mr AB then appealed to the Employment Appeal Tribunal (EAT).

The Employment Appeal Judge Akhlaq Choudhury found that it was not evident that the Claimant’s employer should be liable for mandating the wearing of a mask on the grounds of a philosophical belief in bodily autonomy.  Although it may be a matter of personal belief, it did not contain the same degree of cogency and seriousness required to be protected (Grainger v Nicholson [2010] IRLR).

Mr AB also raised a further procedural issue claiming that he was not aware that his protected status would be determined at a preliminary hearing in the original Tribunal. The EAT rejected this outright, finding that the Tribunal had made clear that the issue would be examined at the Preliminary hearing.

On the disability point, Choudhury J rejected Mr AB’s claims and found that the panic attacks themselves did not authenticate him as having a protected characteristic under the Equality Act 2010.  It supported the Employment Tribunal’s conclusion that the Claimant had not provided sufficient medical evidence to prove such an impairment was a disability and did not explain or give evidence as to how wearing a face mask had ever been the cause or triggered a panic attack. Judge Choudhury commenting:-“There was, in fact, little or no evidence in support of such a connection.”

Comment

As can be seen by our above review of this case, although the Equality Act 2010 provides important protections in society, it can often be exploited by potential Claimants.  The case also confirms the lead authority of Grainger v Nicholson which held that for a belief to be protected it had to have a certain degree of seriousness and coherence and Mr AB’s belief in this case simply did not hit that threshold.