Richard O’Shea worked as a locum at Tenby Surgery from 2018 until February , 2022, when he was suspended.
But the tribunal said he was ineligible to claim unfair dismissal by Hywel Dda University Health Board because he was not an employee.
The arrangement was that the board was not duty bound to offer sessions to Dr O’Shea, who worked in Tenby for two days a week and the Llandaff Fields practice for three days, and he was not bound to accept the sessions he was offered.
Concerns were raised in 2021 when he refused to wear a protective mask, claiming that he was exempted on medical grounds. Although he produced evidence that his GP had referred to wearing masks increasing his anxiety, distracting him and causing breathing problems, he was not given exemption.
The tribunal heard that it was mandatory for staff in NHS establishments to wear masks and that Dr O’Shea was offered other work which did not involve face-to-face meetings.
He claimed that he was taking adequate safety measures by having daily lateral flow tests, being vaccinated and asking patients whether they were happy for him not to wear a mask.
In its judgment the tribunal said:
“The respondent (the health board) was entitled to conclude that the mitigations proposed by the claimant were insufficient to address the risks posed by him (and to him) of working in a clinical environment during the pandemic without wearing an appropriate face mask.”
Dr O’Shea claimed that his suspension in January, 2022, amounted to dismissal but the tribunal said it was temporary.
Rejecting his claims for unfair and wrongful dismissal, and for discrimination arising from disability, employment judge Stephen Povey said:
“In effect, and in reality, what the claimant did was refuse to accept any further offers of work from the respondent, as he was entitled to in the absence of any obligation on him to do so and in the absence of any obligation on the respondent to offer him any work.”