A hospital porter who was sacked for refusing to wear a face mask during the Covid pandemic has lost his claim for unfair dismissal and discrimination.
Graham Fordham worked for Compass Group as a night porter transporting patients and supplies at Northwick Park hospital in north-west London.
In March 2021, a nurse complained that he was wearing a mask below his nose. A manager spoke to him about this, but he then began turning up to work without a mask and wearing an exemption badge.
Fordham told managers that wearing a mask made him feel anxious and he felt that he could not breathe. He told the tribunal he had suffered from anxiety and depression since 2012.
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At the time, the hospital’s position was that an employee refusing to wear a mask would not be allowed on site. He was suspended with pay and referred to occupational health.
The hospital invited him to look at other roles, but all required him to wear a mask so none were found.
He was signed off work for nine months, and in December 2021 it was concluded he would be unlikely to return, so he was dismissed.
He then launched claims for unfair dismissal and discrimination arising from disability. The tribunal issued a judgment on the claim in July 2024, but Fordham requested the judge’s reasons in writing and these have only just been published.
Employment Judge Amy French ruled that the unfair dismissal claim failed because his employer took reasonable steps to look at alternative employment and that his dismissal was within a range of reasonable responses.
“Despite the relaxation of mask wearing within the general population, the evidence before the tribunal was that this would not be changed within the claimant’s NHS setting where the requirement would remain,” she said.
“At this time a new variant of the virus was prevalent and there was no indication that the requirement to wear masks would be relaxed in the near future.”
On the claim of disability discrimination, Judge French said the hospital’s mask policy had the “legitimate aim to protect the health and safety of both the workforce and patients within the hospital”, and that it was a matter of public interest.
“There were no other options which could have been adopted which would achieve this aim within the claimant’s role,” she said. “He was patient facing within a clinical setting and as such alternative measures such as social distancing was not possible.”
Staff in NHS England hospitals are no longer required to wear a mask in clinical settings after Covid safety measures were dropped in 2023.
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