In Kubilius v Kent Foods Ltd ET/3201960/2020 the Employment Tribunal held that an employee who refused to wear a facemask when asked to do so by a client was fairly dismissed by his employer. Michelle Chance, Partner and Head of Employment and Louisa Hartley, Solicitor discuss the outcome of the case and the key issues employers should consider when conducting disciplinary proceedings concerning COVID-19 related health and safety breaches.
The facts of the case
The claimant was a lorry driver delivering food from suppliers to customers. One of the employer Kent Foods’ main clients was Tate & Lyle and around 90% of the claimant’s driving work involved driving to and from Tate & Lyle’s Thames Refinery site.
Kent Foods’ employee handbook required “courteous and pleasant” treatment of clients/suppliers at all times and stated that employees should take “all reasonable steps to safeguard your own health and safety and that of any other person who may be affected by your actions at work”. Kent Foods drivers’ handbook also required “customer instruction regarding PPE requirements” to be followed.
In response to the COVID-19 pandemic, Tate & Lyle decided that face masks should be worn at all times at its Thames Refinery site to reduce the risk of infection. All site visitors were issued with a face mask upon arrival. The claimant attended the site and wore a facemask whilst out in the open but had taken this off after getting into his lorry. This was noticed by two Tate & Lyle managers who asked the claimant to put his face mask on while he was sitting in the cab waiting for paperwork to be signed. The claimant refused to do so, despite repeated requests, on the basis that his cab was his own area where he was isolated and it was not a legal requirement to do so.
Tate & Lyle reported the incident to Kent Foods and banned the claimant from its Thames Refinery site on the grounds of non-compliance with its health and safety rules. Kent Foods commenced an investigation into the incident. The investigation manager found that the claimant’s refusal to comply with an instruction to wear PPE at a supplier’s site was a breach of the employee handbook and decided that a disciplinary hearing was warranted.
During the disciplinary hearing the claimant showed no remorse and maintained that Tate & Lyle’s request had been wrong, as he was in his own environment and the government guidelines stated that wearing a mask was optional.
The disciplinary hearing manager concluded that the claimant should be summarily dismissed for gross misconduct on the basis that a deliberate refusal to comply with a health and safety instruction was a serious breach of the employee handbook. Even if the Tate & Lyle site ban had been lifted, the claimant could not be trusted not to act in the same way in future, potentially endangering Kent Foods’ good relationships with its other customers. The claimant brought an Employment Tribunal claim for unfair dismissal.
The Employment Tribunal’s decision
The Employment Tribunal held that the dismissal had been fair, as it was based on the claimant’s conduct i.e. his refusal to comply with an instruction to wear PPE on a client’s site, together with his lack of remorse afterwards.
The Tribunal accepted that the employer’s decision to dismiss fell within the range of reasonable responses open to an employer. The misconduct was a single incident in which the claimant refused to comply with a client’s PPE instruction. The Tribunal acknowledged that a reasonable employer might have given the claimant a warning, instead of summarily dismissing him, but the question is not what another employer might have done, but whether the decision to dismiss fell within the range of reasonable responses open to an employer. The disciplinary hearing manager was entitled to consider the importance of maintaining good relationships with its suppliers and customers and the claimant’s insistence that he had done nothing wrong meant that it was reasonable to lose confidence in his future conduct. It was also not practicable for the claimant to continue in his role due to the client site ban, which was a direct consequence of the claimant’s misconduct.
Implications for employers and key issues for consideration
This is the first case in which a Tribunal has considered whether a refusal to wear a face mask at work can amount to a fair ground for dismissal. Whilst not binding on other Tribunals, it is a useful indication as to the approach of the Tribunal and how future claims relating to dismissal for refusing to comply with COVID-19 health and safety requirements may be decided.
During the COVID-19 pandemic, and as many employees gradually begin to return to the workplace from this summer onwards, employers may be faced with a similar problem if employees refuse to wear face masks or other PPE, or fail to follow other health and safety regulations in place to restrict the spread of COVID-19, which could necessitate disciplinary action.
In this regard, employers should consider the following:
- Employers should not automatically dismiss employees who refuse to wear face masks. Employers need to understand the reason for refusal as there may be a medical reason why they cannot comply.
- It is potentially fair to dismiss an employee for a reason related to their conduct. This could include disobeying reasonable orders or management instructions in relation to COVID related health and safety compliance.
- Examples of unacceptable conduct should be included in an employment contract or staff handbook and employers should make it clear which examples are serious enough to constitute gross misconduct.
- Disciplinary policies should be updated to take account of COVID related social distancing requirements and any other health and safety requirements such as wearing masks.
- Workplace health and safety policies should be reviewed and updated in line with current Government guidance and regulations. Updates should be communicated to employees regularly and such updates should be easily accessible; any necessary revised Health & safety training should be given to staff; and it should be made clear what the sanctions are for non-compliance with health and safety rules and procedures.
