Hospital worker unfairly dismissed for refusing to have a COVID-19 test

23rd March 2023 • 2 min read • Lauren Beaumont

In a highly fact specific case, an Employment Tribunal (“ET”) has upheld a complaint of unfair dismissal after a hospital employee refused to have a COVID test.

Mr Fitzgerald was employed by Bouygues Energies & Services (“BES”) to carry out general maintenance work at Barnet Hospital.

In late 2020, BES explored whether it was necessary for workers to test for COVID-19 on a regular basis, subject to the availability of lateral flow tests.

No communication

On 9 January 2021, a non-working day for Mr Fitzgerald, BES contacted him, informing him that a colleague had tested positive for COVID-19 and requesting he take a test. Mr Fitzgerald did not do so and, therefore, upon his return to work on 11 January 2021, Mr Fitzgerald was instructed to work from the ‘plant room’, separate to his colleagues.

Mr Fitzgerald was absent between 12 and 15 January 2021. During this period, BES informed workers that it was necessary for them to test bi-weekly for COVID-19. However, this requirement was not effectively communicated to Mr Fitzgerald.

On his return to work, Mr Fitzgerald was asked to test again. However, he was not informed of the above mentioned policy. He refused and was sent home.

Suspended from work

He was subsequently informed later that day that he was suspended from work and that a disciplinary hearing had been arranged for 27 January 2022 because of his refusal to test.

During this meeting, Mr Fitzgerald was informed about this policy for the first time and was given an ultimatum and 15 minutes to decide whether to test or not. He again refused to test and was dismissed.

Unduly hasty

The ET concluded that Mr Fitzgerald had been unfairly dismissed and that BES’s decisions were ‘unduly hasty’.

Notwithstanding this, the ET identified that the requirement to test bi-weekly was not in itself unreasonable. The unreasonableness of the decision to dismiss Mr Fitzgerald stemmed from BES’ failure to inform him of the applicable policies and requirements in place.

The ET also concluded that Mr Fitzgerald’s compensation should be reduced by 80%, considering the likelihood that he would have been dismissed by BES fairly later. It also concluded that a further 50% should be reduced because Mr Fitzgerald contributed to his dismissal by his conduct.

If you are an employee or employer with concerns regarding a dismissal, or a requirement to test for COVID-19, please get in touch with us here at People Legal.

We are trained and experienced in handling all matters of employment law and can provide you with the information you need. We can also provide training on equal opportunities.