A hospital porter, who was fired for refusing to put on a mask during the Covid Pandemic because he refused to wear one, has lost his case for unfair dismissal.
Graham Fordham was a night porter for Compass Group, transporting patients and hospital supplies to Northwick Park Hospital in north-west London.
A nurse in March 2021 complained about the mask he was wearing below his nose. He was told by his manager to stop wearing the mask, but then he began to wear an exemption badge and not wear a mask to work.
Fordham said to managers that wearing a face mask made him anxious and that he felt he couldn’t breathe. He said he suffered from depression and anxiety since 2012.
The hospital at the time stated that any employee who refused to wear a face mask would be prohibited from entering the premises. He was suspended and paid for, then referred to occupational medicine.
The hospital asked him to try out other roles but they all required that he wear a mask, so no one was found.
In December 2021, it was determined that he would not return to work, so he had his dismissal.
The tribunal issued a judgment on the claim in July 2024, but Fordham requested that the judge’s reasons be written. These have only just been published. Fordham asked for the reasons of the tribunal’s judgment in writing, which were only published.
Amy French, an employment judge, ruled the claim for unfair dismissal failed. His employer had taken reasonable steps to consider alternative employment.
She said that despite the fact that masks are no longer required in the NHS, this requirement will remain.
“At the time, a new strain of the virus is prevalent and it does not appear that the mask requirement will be eased in the near term.”
Regarding the claim of discrimination based on disability, Judge French stated that the hospital’s mask policies had the “legitimate goal to protect both the health and safety and the staff and patients in the hospital” and was an issue of public importance.
She said that “there were no other alternatives which could have achieved this goal within the claimant’s role.” He was a patient in a clinical environment and so alternative measures like social distance were not possible.
After 2023, NHS England hospitals no longer require staff to wear a face mask when in a clinical setting.
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