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Case Note: Pallot v Jersey Heritage Trust [2021] TRE 041; Discrimination in the workplace and Covid-19

In this recent Jersey Employment Tribunal Case, the claimant (Mr Pallot) was dismissed by the employer (Jersey Heritage Trust) for refusing to wear a face covering (a mask). Mr Pallot was a public driver on the amphibious vehicle which takes passengers to and from Elizabeth Castle. Mr Pallot argued that he could not wear a face mask due to it giving him anxiety. He said that this amounted to a disability, which was accepted by the Tribunal.

Mr Pallot claimed unfair dismissal, direct and indirect disability discrimination, and a failure to make reasonable adjustments.

Mr Pallot could not claim unfair dismissal as he did not satisfy the minimum qualifying period of continuous service with his employer: 52 weeks, (Article 73 of the Employment (Jersey) Law 2003).

With regards to Mr Pallot’s claim for disability discrimination, the Tribunal found that there was no discriminatory act. The requirement of Jersey Heritage Trust that their employees, including Mr Pallot, wore face coverings was to ensure compliance with the Covid-19 (Workplace Restrictions) (Jersey) Order 2020 (“the Order”). Schedule 2 of the Discrimination Law confirms that no unlawful act of discrimination is committed where the act in question “is done necessarily for the purpose of complying with [any enactment or any associated condition or requirement]”. This applied to the present case as the relevant act of the employer (requiring employees to wear masks) to comply with the Order. Jersey Heritage Trust was bound by law to ensure that all employees dealing with customers wore masks and so, given Schedule 2, no act of discrimination was committed.

This decision demonstrates how the duties of employers, and the rights of employees are affected by different laws, with one law overriding another. Jersey businesses have a duty to comply with the Island’s Covid-19 requirements. Employees considering making Tribunal claims may wish to explore and understand statutory obligations on employers before commencing proceedings.

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