Hospital porter fired for not wearing face mask loses wrongful dismissal claim

A hospital porter of 20 who was dismissed after refusing to wear a face mask during the Covid pandemic because it made him anxious has lost his claim for unfair dismissal and discrimination.

The claims of Graham Fordham, who was dismissed by his employer, Compass Group, after nine months off work, were dismissed by an employment tribunal, which ruled that the company had acted lawfully.

During the Covid pandemic, staff in clinical settings such as Fordham, whose job as night porters involved transporting patients and supplies, have been required by the government to wear masks.

In March 2021, a nurse at Northwick Park hospital in Harrow, north-west London, complained that Fordham was wearing his mask below his nose, Watford employment tribunal heard.

Fordham was approached by a manager, but he began showing up to work without a mask and wearing an exemption badge.

Fordham was called into a meeting where he told managers that wearing a mask made him anxious and that he felt like he couldn’t breathe.

Fordham said he couldn’t wear a mask when moving patients around the wards because he “didn’t like things blocking his face.” According to the tribunal, he had suffered from anxiety and depression since 2012.

The hospital’s position was that if an employee decided not to wear a face mask, he or she would not be allowed on site. Fordham was suspended with pay so he could be referred to occupational medicine.

He was invited to look at other roles within the hospital, the tribunal was told, but none were found suitable as they all required them to wear a mask.

After being suspended for nine months and given notice of termination, the tribunal heard, it was concluded that Fordham was unlikely to return to work and he was dismissed in December 2021.

Fordham’s claims of unfair dismissal and disability discrimination were rejected on the grounds that alternative measures to mask-wearing, such as social distancing, were “not possible”, the employment judge said.

“Despite the relaxation of mask wearing within the general population, the evidence before the tribunal was that this would not change within Mr Fordham’s NHS setting,” the judge said.

“There was no suggestion that the requirement to wear a mask in a clinical setting would end at any time. One of his main duties was transporting patients within the hospital environment. This not only brings him into contact with the patient, but also with a number of other people.”

Since Covid safety measures were removed in 2023, NHS England staff are no longer required to wear masks in clinical settings. Healthcare charities and patient groups have called on NHS England to reintroduce Covid-19 precautions for staff amid fears clinically vulnerable patients and clinicians are being put at risk.