Dismissed for refusing a COVID test: a flawed process that cost the employer
A maintenance worker at Barnet Hospital was unfairly dismissed after refusing a COVID-19 test. The tribunal found the procedure was rushed and the testing policy was never properly communicated.
1 min read · Last updated 18 May 2026
Case details
- #covid-19-testing
- #gross-misconduct
- #polkey-reduction
- #contributory-conduct
- #article-8
Key facts
- The claimant worked as a maintenance craftsperson at Barnet Hospital.
- He refused to take a COVID-19 test on 9 and 18 January 2021.
- He was not informed of a twice-weekly testing policy before the disciplinary hearing.
- The disciplinary hearing lasted about 40 minutes and the claimant was given an ultimatum.
- The tribunal found the dismissal was premature and procedurally unfair.
- The tribunal applied an 80% Polkey reduction and a 50% contributory conduct reduction.
Timeline
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First refusal to test
The claimant was asked to take a COVID-19 test due to a colleague testing positive, but he refused.
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Worked in isolation
The claimant was told to work in the plant room to keep him separate from his team as he had not tested.
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Sick leave
The claimant did not attend work due to stress and depression, returning on 15 January.
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Return to work and second refusal
The claimant returned to work and was asked to test again; he refused and was sent home.
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Suspension and disciplinary letter
The claimant received an email informing him of suspension and a disciplinary hearing for refusing a test.
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Disciplinary hearing and dismissal
At the hearing, the claimant was told about the twice-weekly testing requirement for the first time. He refused and was dismissed for gross misconduct.
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Appeal lodged
The claimant appealed the dismissal, raising concerns about lack of policy and alternatives.
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Appeal hearing
The appeal was heard in the claimant's absence; the dismissal was upheld.
The legal issue
The tribunal had to decide whether the employer acted reasonably in dismissing the worker for refusing to take a COVID-19 test, given the urgency of the pandemic and the employer's duty to follow a fair procedure.
The outcome
The tribunal found that the dismissal was unfair and wrongful. The key reasons were:
- The worker was not informed of the twice-weekly testing policy before the disciplinary hearing.
- The disciplinary hearing was too short (about 40 minutes) and the worker was given an ultimatum, making the process unfair.
Compensation was reduced:
- 80% Polkey reduction because the worker would likely have been dismissed anyway if a fair procedure had been followed.
- 50% contributory conduct reduction because the worker's refusal to test contributed to the dismissal.
Lessons & takeaways
- Employers must clearly communicate workplace policies, especially when they are new or changed, before taking disciplinary action.
- A disciplinary hearing should allow the employee a fair opportunity to respond, not be a rushed ultimatum.
- Even in a pandemic, procedural fairness matters – a quick dismissal can be found unfair if the process is flawed.
- Workers who refuse a reasonable instruction may face reduced compensation if their conduct contributed to the dismissal.
A flawed process in a pandemic
This case shows how even in the midst of a public health crisis, employers cannot skip basic fairness when disciplining staff. The maintenance craftsperson at Barnet Hospital refused to take a COVID-19 test on two occasions in January 2021. But the tribunal found that Bouygues Energies and Services had not properly communicated its testing policy – the worker first learned about the twice-weekly requirement at the disciplinary hearing itself.
The hearing lasted only about 40 minutes and ended with an ultimatum: test or be dismissed. The tribunal described this as premature and procedurally unfair. The employer could have paused the process, explained the policy, and given the worker a chance to comply. Instead, it rushed to dismissal.
What the employer could have done differently
Bouygues could have avoided this outcome by ensuring the testing policy was clearly communicated through written notices or formal briefings, rather than relying on informal 'toolbox talks' that not all staff could hear. It could also have adjourned the disciplinary hearing to allow the worker time to consider the policy and seek advice. A fair process would have given the worker a real choice, not an ultimatum.
Why this matters for similar claims
The tribunal applied an 80% Polkey reduction, meaning it found the worker would probably have been dismissed anyway even with a fair process – but the unfairness still mattered. The 50% reduction for contributory conduct reflects that the worker's refusal to test was a factor. This case is a reminder that procedural flaws can make a dismissal unfair even if the outcome might have been the same, and that workers who refuse reasonable instructions may see their compensation reduced.
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