Member Article

A recent Employment Tribunal (tribunal) decision provides employers with peace of mind when deciding to implement workplace policies that emerge in response to previously unforeseen workplace risks. 

We examine Shields v Alliance Healthcare Management Services (Alliance), a case successfully defended by Shoosmiths, and outline the key steps that employers can take to confidently implement reactionary workplace policies.

The background

The Claimant worked at an Alliance site in Scotland and was responsible for assisting the production of medication for distribution to Alliance’s customers, including the NHS and care homes. The Claimant was sent home in January 2021 for refusing to wear a facemask upon entry to the building. Whilst on sick leave, the Claimant disclosed that she could not wear a facemask because of her vertigo. The Claimant resigned in January 2022, despite Alliance’s attempts to explore alternatives and facilitate her return to work throughout her 12 months of absence. She brought a claim of constructive unfair dismissal and multiple headings of disability discrimination which were later withdrawn, although claims of a breach of the duty to make reasonable adjustments and indirect discrimination were heard at the final hearing. The tribunal found that the Claimant’s vertigo was a disability from October 2021.

The policy

Alliance, against the backdrop of working at full capacity during the pandemic to produce and deliver lifesaving medicines, introduced a new mandatory face covering policy from 18 January 2021 across all of their UK sites The policy was implemented following a risk assessment carried out by Alliance on 12 January 2021 in response to the COVID-19 pandemic. Alliance’s risk assessment also considered local government guidance at the time and allowed sites to apply this when implementing the policy. This meant that for Alliance sites in Scotland, the policy was implemented in line with the 6 January 2021 Scottish Government guidance update, which advised that face coverings were to cover the mouth and the nose and ‘fit snugly’ on a person’s face. As a result, it became mandatory for Alliance employees to wear a face covering that was fully fitted to their face and covered their mouth and nose whilst at work.

It was acknowledged by Alliance that its policy could prevent medically exempt employees from attending work. To combat this, individuals who were potentially exempt were identified and reasonable adjustments, where possible, were put in place such as working from home where the role allowed or permitting alternative, risk assessment compliant, face coverings to be worn. 

Was there a breach of the duty to make reasonable adjustments / indirect discrimination? 

As the Claimant, a warehouse operative, she could not carry out her role from home the only adjustments that could be considered still required her to attend site. 

Staggered break times and isolated working were considered by Alliance when assessing what reasonable adjustments were possible. However, as these adjustments would involve wearing a face covering when moving around site or in communal areas with other employees, this was not an appropriate alternative for the Claimant. 

As face coverings were mandatory, alternative face coverings from the standard surgical or cloth masks were sent to the Claimant to trial. This included considering a plastic mask that stood away from the mouth and nose but were still fitted to the edges of the face. However, the Claimant informed Alliance that she was unable to wear any material on or near her face at all and did not participate in the trial.

The tribunal concluded that Alliance did all that they reasonably could to work with the Claimant to remove any disadvantage that she suffered by reason of her disability against the prevailing circumstances of the virus.

Was the substantial disadvantage proportionate?

The tribunal accepted that the policy had a legitimate aim; to protect the health and safety of the workforce by reducing the risk of the virus spreading. The tribunal then had to undertake a balancing exercise to establish whether the policy was proportionately applied to the Claimant.

The impact of the policy on the Claimant was that she was unable to enter site without wearing a face covering. It accepted that the information available to Alliance about the virus was that any exposure to droplets from the mouth and nose could increase the risk of transmission. The face covering policy provided protection to the health and safety of employees. In turn, this preserved business operations so that Alliance could continue to deliver lifesaving medication to its clients.

The tribunal concluded that Alliance’s actions were proportionate and accepted there were no other measures that it could have adopted which would have achieved the aim of the policy. The tribunal accepted that, at that time, relaxing the policy could have resulted in serious consequences not only for employees, but also for those who relied on Alliance to provide lifesaving medication. 

The tribunal found that the claims were ill-founded, and they were dismissed. 

Our three key takeaways for employers:

1. Consider if there are any local rules that may affect how a policy may be interpreted. In this case, although the January face covering policy was implemented as a UK wide initiative, Alliance considered each local governments’ guidance when implementing the policy across their sites. The tribunal engaged with this point and sought to understand if Alliance preferred local guidance above the policy at times where the two may have diverged. 
2. If an employer is aware that implementing the policy will cause a substantial disadvantage to its employees, the extent of the disadvantage should be carefully assessed. Alliance’s policy was in essence a ‘no mask, no entry’ policy which operated in contrast to the ‘no jab, no job’ approach taken elsewhere at the time. 
3. Even during a time of heighted sensitivity, an employer’s duty to make reasonable adjustments is not relaxed and the tribunal will continue to examine the steps taken by employers to remove any disadvantage. This means that employers should not rely on the general knowledge of the virus, or any other widespread event, to fill in any gaps within employers’ practices. 

We recommend that employers take advice before committing to the implementation of any new policy or procedure if there are concerns that a particular group of employees may be disadvantaged or prevented from carrying out their day-to-day role.

 

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