Agency driver dismissed over mask exemption: unfair dismissal but no disability discrimination
An agency driver who was dismissed after his mask exemption led to a dispute with a healthcare provider has won his unfair dismissal claim, but the tribunal found he was not an employee of the company that refused his services.
1 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant was employed by the second respondent (Logistical Support Limited) as an agency driver from 18 December 2017 until 27 November 2020.
- The claimant was disabled due to anxiety, depression and asthma, which made him unable to wear a face mask.
- On 10 October 2020, the claimant was challenged by Helen Penn about not wearing a mask, who called him a liar in front of colleagues.
- On 4 November 2020, DHU Healthcare CIC instructed Logistical not to send any drivers exempt from wearing masks, effectively ending the claimant's work for DHU.
- On 27 November 2020, Marc Wilson of Logistical dismissed the claimant by email, citing failure to repay a £90 overpayment.
- The second respondent failed to follow any disciplinary procedure or the ACAS code of practice.
Timeline
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Employment commenced
The claimant started employment with Logistical Support Limited as an agency driver.
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Challenge by Helen Penn
Helen Penn challenged the claimant about not wearing a mask, called him a liar in front of colleagues.
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Email about mask requirement
Marc Wilson emailed drivers stating they were expected to wear face coverings while on duty for DHU.
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Meeting with Dr Johri
The claimant met with Dr Johri to discuss his inability to wear a mask and requested confirmation to resume work.
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Clinical meeting
DHU managers met and decided that agency drivers exempt from masks should not be used.
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Email from Heidi Stevens
Heidi Stevens emailed Marc Wilson stating that agency drivers exempt from masks were too high risk and should not be used.
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Dismissal
Marc Wilson dismissed the claimant by email, citing failure to repay a £90 overpayment.
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Overpayment repaid
The claimant repaid the £90 overpayment.
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Claim presented
The claimant presented his claim to the Employment Tribunal.
The legal issue
The tribunal had to decide whether the agency driver was an employee of DHU Healthcare CIC (the healthcare provider) or only of Logistical Support Limited (the agency), and whether his dismissal and treatment due to his inability to wear a face mask amounted to unfair dismissal and discrimination arising from disability.
The outcome
The tribunal found that the agency driver was not an employee of DHU Healthcare CIC, so his claims against them were dismissed. However, he was an employee of Logistical Support Limited, and his dismissal was procedurally unfair because the agency failed to follow any disciplinary process or the ACAS code of practice.
The tribunal awarded the following compensation:
- Basic award: £65.01
- Compensatory award: £562.50
- Total: £627.51 (the full award of £27,274.96 included other elements not specified in the facts)
Lessons & takeaways
- Agency workers should check who their legal employer is – it may not be the company they work for day-to-day.
- Employers must follow a fair disciplinary process before dismissing an employee, even if the reason seems clear-cut.
- Disability discrimination claims require a direct employment relationship with the respondent – agency workers may need to claim against their agency.
- Failing to follow the ACAS code of practice can increase compensation by up to 25%.
This case highlights the complex legal status of agency workers and the importance of proper procedures when dismissing an employee. The claimant, an agency driver, had worked for Logistical Support Limited since December 2017, providing driving services to DHU Healthcare CIC. In October 2020, he was challenged by a DHU manager for not wearing a face mask, which he could not do due to his disability (anxiety, depression and asthma). The manager called him a liar in front of colleagues. Shortly after, DHU instructed Logistical not to send any drivers who were exempt from wearing masks, effectively ending the claimant's work for them. Logistical then dismissed him by email, citing a failure to repay a £90 overpayment.
The tribunal found that the claimant was not an employee of DHU Healthcare CIC – he was employed solely by Logistical Support Limited. This meant his disability discrimination claim against DHU could not proceed. However, his unfair dismissal claim against Logistical succeeded because the agency did not follow any disciplinary process or the ACAS code of practice. The dismissal was procedurally unfair.
What could have been done differently?
Logistical Support Limited could have avoided this outcome by following a proper disciplinary procedure. Even if the overpayment issue was genuine, dismissing by email without any investigation or opportunity for the claimant to respond was clearly unfair. DHU Healthcare CIC could have handled the mask exemption issue more sensitively, but the tribunal noted they were not the employer.
Why this matters
For agency workers, this case is a reminder that your legal employer is usually the agency, not the end-user. Claims for unfair dismissal or discrimination must be brought against the correct entity. For employers, it shows that even small agencies must follow basic procedural fairness – failing to do so will result in a finding of unfair dismissal, even if the underlying reason for dismissal was potentially valid.
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