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Can an employee be dismissed for refusing to wear a face mask?

Can an employee be dismissed for refusing to wear a face mask?

Delivery driver sacked for refusing to wear a face mask was not unfairly dismissed

In Kubilius v Kent Foods, the Judge found that the dismissal was not unfair as it fell within the range of reasonable responses.

Mr Kubilius had worked as a driver for Kent Foods Limited from July 2016 up until his dismissal without notice in June 2020. Following the dismissal he brought legal action against his employer to challenge the decision.

When making a delivery to a supplier at Tate & Lyle’s (T&L) Thames Refinery site, staff there had asked him to put on a mask, which was a temporary rule put in place. Mr Kubilius refused to comply, and the T&L banned him from their site in response.

The manager at T&L emailed transport planner Mr Mahon at Kent Foods to inform him of the claimant’s conduct and the ban. Mr Mahon contacted Mr Kubilius who in response sent a copy of the T&L’s site instructions which had not yet been amended to include the temporary rule regarding use of masks. He also sent guidance from the government website, which stated that “wearing a face covering is optional and not required by law including in the workplace.”

Kent Foods commercial director informed T&L that a disciplinary process was underway and stated that if Mr Kubilius is unable to now deliver to the site it “materially affects his ability to do the job.” He tried to convince T&L to rescind the ban but was not successful. The supplier considered that the requirement to wear a mask had been made clear and the lack of written guidance was only being used as an excuse.

Kent Foods site manager held a disciplinary meeting on 12th June 2020 and he decided that Mr Kubilius’ refusal to comply with a health and safety instruction was a “serious breach,” and his lack of remorse in the meeting was also an important factor. He was summarily dismissed on 25th June 2020.

At the hearing, the Tribunal found that the employer had lost confidence in Mr Kubilius as an employee due to his refusal to wear a mask and the resulting ban from the supplier’s premises.

The Tribunal held that while Mr Kubilius was not aware at the time of the requirement to wear a mask inside his cab when at T&L’s site, his “continued insistence” that he had done nothing wrong and “lack of remorse” meant that the employer’s decision to dismiss him was a fair and reasonable one.

The judge also considered that the ban would cause difficulty for the claimant to continue to fulfil his contractual role.

The Tribunal was told that 90% of the work from the Mr Kubilius’ depot in Basildon involved driving to and from the supplier’s site, and a good relationship with suppliers was essential to the employer’s business.

What does this tell us about future cases?

Mr Kubilius’ conduct had damaged his employer’s relationship with a vital customer who supplied a large amount of work to his employer. The case demonstrates the importance of this factor to an employer, this being a key basis of the Tribunal’s decision.

It remains to be seen how further cases will deal with PPE and complying with health and safety rules at work. The Judge in this case commented that Mr Kubilius was “a details-oriented person who believed he was following written site instructions” but “dug his heels in.” It will always be important to have open and clear dialogue about what is required, why so, and what could happen if reasonable instructions are not followed.

If you would like to discuss issuing in the workplace that arise from the Covid pandemic then Hattons Solicitors can help. Please use our contact form or call 01744 744400 to speak to our experienced employment law team specialising in these matters.

Hattons Solicitors is based in St Helens, Merseyside. The firm has been providing efficient, affordable and high-quality legal services to members of the public and the wider business community since 2001. Professional excellence and quality of work is reinforced by its Law Society Lexcel Accreditation, and membership to the Law Society. Our friendly team of solicitors will always listen to you and your needs before working with you to deliver the approach that best meets your individual needs.

Posted on: 02/Mar/2021 Posted in: Employment Law
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