Employment Tribunal Upholds Dismissal of Maskless Hospital Porter

A hospital porter who was dismissed for refusing to wear a face mask during the Covid pandemic has lost his claim for unfair dismissal and discrimination.

Graham Fordham was employed by Compass Group as a night porter, responsible for transporting patients and supplies at Northwick Park Hospital in north-west London.

In March 2021, a nurse reported that he was wearing his mask below his nose. A manager spoke to him about the issue but he subsequently began arriving at work without a mask and with an exemption badge.  Fordham explained to his managers that wearing a mask made him feel anxious and that he struggled to breathe. He told the tribunal he had experienced anxiety and depression since 2012.

At the time, the hospital's policy was that any employee refusing to wear a mask would not be permitted on site. Fordham was suspended with pay and referred to occupational health.  The hospital offered him the chance to consider other roles but all required mask-wearing so no alternative position was found.  He was signed off work for nine months and in December 2021, it was determined that he was unlikely to return, leading to his dismissal.

Fordham then filed claims for unfair dismissal and discrimination due to his disability. The tribunal issued its decision in July 2024 but Fordham requested the judge’s reasons in writing, which have only just been published.

Employment Judge Amy French ruled that the unfair dismissal claim was unsuccessful because the employer had taken reasonable steps to explore alternative employment and that his dismissal was within a range of reasonable responses.  “Despite the relaxation of mask-wearing in the general population, the evidence presented to the tribunal indicated that the requirement would remain in the claimant’s NHS setting,” she stated.  “At that time, a new variant of the virus was prevalent and there was no indication that the mask requirement would be relaxed in the near future.”

On the disability discrimination claim, Judge French stated that the hospital’s mask policy had the “legitimate aim of protecting the health and safety of both the workforce and patients within the hospital,” and that it was in the public interest.  “There were no other options that could have been implemented to achieve this goal within the claimant’s role,” she explained. “He was patient-facing in a clinical setting and therefore alternative measures such as social distancing, were not feasible.”

As of 2023, staff in NHS England hospitals are no longer required to wear masks in clinical settings, following the lifting of Covid safety measures.

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