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Kubilius v Kent Foods Ltd - Employment Tribunal finds employee dismissal for failure to wear face mask was fair

Background

In the first case of its kind, the employment tribunal found that a lorry driver was fairly dismissed where the reason for that dismissal was his refusal to wear a face mask.

The claimant was employed as a delivery driver for Kent Foods Ltd. Much of the claimant’s work involved travel to and from one of Kent Foods’ major clients, Tate and Lyle (“Tate”).

At the time of the incident (May 2020) government guidance was that wearing a face mask was optional however, Tate had their own mandatory requirement that face masks were to be worn by all those who attended their site and provided visitors with masks on arrival for that purpose. Kent Foods’ employee handbook also required staff to follow client instructions regarding PPE and to treat clients courteously. 

During a delivery to Tate, and despite repeated requests, the claimant refused to wear a face mask while he was inside the cab of his lorry. Tate consequently banned the claimant from attending its site. 

Kent Foods conducted an investigation and invited the claimant to a disciplinary hearing. It was determined that by refusing to wear a face mask, Mr Kubilius had deliberately refused to comply with a reasonable health and safety instruction and that this breach was aggravated by a distinct lack of remorse throughout the process.  Kent Foods considered that even if Tate had lifted the ban, it did not trust that the claimant would not behave in the same way in the future and potentially undermine their client relationship with Tate.  The claimant was summarily dismissed for gross misconduct.

Tribunal decision

The tribunal found that that the dismissal was fair; Kent Foods had carried out a reasonable investigation into facts - that were not in significant dispute.  It genuinely believed that the claimant was guilty of gross misconduct – taking consideration of the importance of maintaining good client relationships, the claimant’s insistence that he had done nothing wrong (raising concerns as to his future conduct) as well as the practical issue of the claimant being banned from a major client’s site (and the logistical difficulties that presented) Whilst the tribunal noted that another employer may have responded differently, it found that the dismissal fell within the range of reasonable responses and that Kent Foods followed a fair disciplinary process.    

Comments

Although not binding on other tribunals, this decision confirms that refusing to wear a face mask can, in certain circumstances, constitute a potentially fair reason for dismissal.  However, employers should note that each case will be decided on its own facts and so a full evaluation of all the relevant facts and circumstances applicable to the individual case must be considered in terms of fairness and proportionality.  In spite of this case, there will still be some situations where a refusal to wear a mask might not amount to a fair reason to dismiss where the situation is different.   

Therefore, before taking any action against an employee, employers should first investigate why an employee is refusing to wear a mask. Dismissing an employee who is medically exempt, for example, could potentially amount to claims for unfair dismissal and disability discrimination that might succeed.

For more information on the article above contact Vanessa James or Ceris Fuller.

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