The claims in this case were for discrimination and automatic unfair dismissal. The Claimant was a driver for amphibious passenger vehicles that travel between West Park and Elizabeth Castle and he was dismissed for refusing to wear a mask. He claimed the wearing of a mask made him anxious and this amounted to a disability.
As the Claimant did not have the requisite period of continuous employment to claim unfair dismissal, it was only if his claim for disability discrimination succeeded, that he could then be found to have been automatically unfairly dismissed.
The Respondent defended the claim on the basis the Covid-19 (Workplace Restrictions)(Jersey) Order 2020 (the “Order”) legally requires the occupier of a workplace to ensure workers wear face coverings in the presence of visitors. Although there is an exemption for public service vehicle drivers if the wearing of a face covering would make the driving unsafe; the Respondent regarded the test as an objective one.
Considering the nature of the vehicle and its maximum speeds on land and water the Respondent argued the Claimant could not fairly be regarded as falling within this exemption. The Tribunal regarded this a reasonable conclusion and considered the termination of the contract to have been within the range of options reasonably available to the Respondent.
The Tribunal also focused on the provision of Article 64(2)(d) of the Employment Law which has a saving provision for an employer in cases where “the employee could not continue to work in the position which the employee held without contravention, (either on the employee’s part or on that of his or her employer) of a duty or restriction imposed by or under an enactment”. Again, the Order is relevant in this regard, as are the duties imposed under the health and safety legislation to provide a safe place of work. Given the claim was for automatic unfair dismissal, this claim was considered in tandem with the discrimination claims.
The Tribunal held that the Claimants condition did amount to a disability, given the low bar set by Genda v Dunelm. However, Schedule 2 of the Discrimination Law provides that no act of discrimination is committed where such discrimination “is done necessarily for the purpose of complying with [any enactment or any associated condition or requirement].”
The Tribunal accepted the Respondent was bound by the Order and in complying with it did not commit any act of discrimination. They also found there was no direct discrimination because the Respondent adopted a proportionate means of achieving a legitimate aim – namely compliance with the Order and the Respondent’s safe environment duties under the Health & Safety at Work (Jersey) Law 1989.
This reasoning also applied to the question of indirect discrimination. The Tribunal was satisfied from the evidence that the Respondent took properly into account those things that it was bound to take into account. Finally, the Tribunal were satisfied that the Respondent conscientiously explored reasonable adjustments and reached sustainable conclusions in each case. Therefore, because the Claimant was not discriminated against, both claims failed.
Although in this case the Respondent relied on legislation to defend its position, the Respondent also gave due consideration to any reasonable adjustments that could be made. It is therefore clear that even if there is a strong case for legislation underpinning the decisions you make, this does not mean that further consideration of possible adjustments is not necessary.