In the case of Mr D Fitzgerald v Bouygues Energies and Services Mr Fitzgerald was employed by the respondent as a maintenance craftsperson working at Barnet Hospital. His role involved undertaking different types of general repair work around the hospital site. The respondent held a contract with the NHS Trust to undertake the maintenance on site.
Mr D Fitzgerald claimed that his employer’s, Bouygues Energies & Services (BES), instructions to take two weekly Covid tests, and the subsequent dismissal of him for refusing, were both infringements of article 8 of the Human Rights Act.
While the tribunal ruled that such a requirement, given his role in a hospital, was reasonably necessary by BES, his dismissal was “not reasonable”, as it did not properly inform him of the company’s policy on testing, following his reluctance to take tests.
The tribunal heard that Michael Foley, BES’s contract manager at the hospital, and general manager Paul Robinson, both spoke to Fitzgerald about his “attitude in general” towards Covid procedures. Foley told the tribunal that Fitzgerald was “sceptical about Covid and the risk it posed” – with both having to give him informal, verbal reminders about wearing a mask and following proper precautions.
The tribunal found it was not Mr Fitzgerald’s responsibility to know that regular testing would be a requirement, as BES failed to provide evidence of clearly informing employees about a change in policy.
Employment judge Park concluded that BES’s decision and disciplinary process was “unduly hasty”.
“It was based on an erroneous assumption about what the claimant already knew and what had actually occurred,” Park said. “In addition, he [Robinson] reached that conclusion by relying on what he thought he knew about [Fitzgerald’s] attitude towards Covid and by giving [him] an ultimatum during the hearing.”
Judge Park also found there to be a lack of alternatives to dismissal, describing BES’s decision as “a binary choice, between dismissal and not dismissing the claimant”.
Park also ruled that his compensation should be reduced by 80 per cent, as there was a “high likelihood” BES would have dismissed Fitzgerald in any event. Park said Fitzgerald provided no indication that he was actually willing to undergo testing, which was further evidenced when Fitzgerald told the tribunal he was “stubborn”.
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