Sacked castle ferry driver’s face mask ‘discrimination’ case fails

Tuesday 09 November 2021

An Elizabeth Castle ferry-bus driver, who was sacked after refusing to wear a mask, has had his case for discrimination compensation thrown out.

David Pallot had argued that Jersey Heritage’s decision to fire him in March 2021 amounted to discrimination because he was unable to wear a face covering due to anxiety.

But Heritage, which had explored many other options before taking the decision, was clear that allowing Mr Pallot to forego a mask would be a breach of covid laws requiring that workers “wear face coverings in the presence of visitors.”

Arguing his case before Jersey’s Employment and Discrimination Tribunal last month, Mr Pallot explained that he had developed anxiety during the pandemic.

He described this anxiety as a “hidden disability” that resulted in symptoms that made it “dangerous for him to drive while wearing a face covering” and said he had downloaded a card from the Government website exempting him from wearing one.

He therefore argued that he should be entitled to compensation on the basis that his dismissal was unfair, and that he had been the subject of discrimination – but both claims failed. 

Pictured: Mr Pallot downloaded an exemption card online.

Firstly, the Tribunal noted that Mr Pallot had only continually worked for Heritage for 35 weeks, meaning that he was outside the limit for making such a claim (52 weeks). 

However, they decided that, “even supposing that the necessary continuous employment had been reached the Panel would not have found this to have been a case of unfair dismissal.” 

In a hearing held on 14 October, the Tribunal heard that Jersey Heritage had no prior notice of Mr Pallot’s condition and only found out after he signed a fixed term contract for the 2021 season. 

Jersey Heritage held several meetings with Mr Pallot to “understand the difficulty” of wearing a mask and gave “honest consideration to possible solutions”.

The Tribunal noted that these included:

• “moving Mr Pallot to non-customer facing duties (there were none to which he was suited; moreover, the evidence was that he was unable to wear a mask in any circumstances, so that it would have been unfeasible for him to work anywhere within the Trust with colleagues);
• “putting Mr Pallot on paid leave until the Order ceased to apply (not financially realistic);
• “and installing a Perspex divider behind the driving position in the amphibious vehicles (reasonably investigated and  found to be unsafe, on expert engineering advice).” 

Driver and Vehicle Standards and Harbour authorities also both advised Jersey Heritage that allowing Mr Pallot to forego a mask while behind the wheel of the ferry-bus would constitute a breach of covid laws.

Mr Pallot noted that there was an exemption for public service vehicle drivers “when the wearing of a face covering would make driving unsafe”, but the Tribunal agreed with Jersey Heritage that his activities with the amphibious castle bus were not comparable “considering the nature of the vehicle and its maximum permitted speeds on land and water and the limited nature of its passage”.

Pictured: The Employment and Discrimination Tribunal heard the claim last month and published their judgment on Monday.

During the hearing, Mr Pallot was said to have “placed extensive reliance" on the exemption card downloaded from the Government website.

However, Jersey Heritage “countered by referring to that part of the same website which explained that the certificate only exempted a person ‘when visiting [premises] as a customer’", according to the Panel.

It added: "It is worth noting incidentally that the same website explained that if a person could not wear a face covering due to disability (among other things), then that person could not work in the presence of visitors.”

The Tribunal lastly found that, according to Jersey law, discrimination does not occur if an action is taken in order to comply with the law. As Jersey Heritage was complying with covid rules, it neither directly nor indirectly discriminated against Mr Pallot by terminating his contract.

While it dismissed Mr Pallot’s claims, the Tribunal nonetheless stated that it had “sympathy for both sides”.

“Mr Pallot has lost a job which he greatly enjoyed and for which in all other respects he was well qualified and well suited. The Trust was confronted at short notice with a challenging conundrum within the uncertainties visited on everyone by the blight of coronavirus. In those circumstances, all that could be done was to fall back to the letter of the law for such certainty as it could provide, and we conclude that the Trust did that successfully,” said Deputy Chair Advocate Cyril Whelan in the Panel’s written judgment released yesterday. 

“The Panel thinks it correct to emphasise that the covid restrictions, founded in statute, amounted to circumstances that no one had had to deal with before and that safety from spread of the pandemic was correctly foremost in everyone’s priorities at the time of this case.”