The Employment Tribunal did not uphold an unfair dismissal claim brought by an employee who was dismissed by their employer after refusing to wear a face mask.

In Kubilius v Kent Foods Ltd, the Employee had been a driver for a distribution company that transports goods to various clients around the country. On 21 May 2020, the employee had been sent to deliver goods to the sugar company, Tate and Lyle, at their Thames Refinery site. At this particular site, there was a mandatory requirement for all staff and visitors to wear a face covering. On arrival at the site, a face covering was provided as well as a copy of the site rules. However, the requirement to wear a face covering was a temporary one and therefore was not expressly written into the site rules at the time. As a result, when the employee was asked by Site Managers to put on his mask, he refused.

His defence was that it was not a legal requirement to wear a face covering and the Government guidance in May 2020 made clear that face coverings at work were optional. He had also been alone in his cab at the time of the request and was, therefore, not an immediate risk to anyone. He stated that he was willing to wear a mask outside of his cab when interacting with others and evidence later showed that he did so when walking around site. The Site Manager reported the incident to his employer and also banned the employee from attending their premises in future.

As a result of the incident, a disciplinary investigation took place to review the matter and his conduct. His employers relied on the following obligations from their policies and procedures:

  • The employer had health and safety obligations under their Employee Handbook to take all reasonable steps to safeguard his own health and safety and that of any other person who may be affected by his actions at work.
  • He had obligations under the employer’s Drivers’ Handbook which expressly stated the following:

“… customer instruction regarding PPE requirement must be followed.” 

As the employee attended different sites with differing rules, he was required to follow the rules of each specific site when it came to PPE. Therefore, he should have worn a face covering immediately on request, regardless of whether it had been expressly stated on the site rules. Moreover, there had been various signage displayed on site that showed the requirement to wear a face covering.

  • He also had obligations under the Employee Handbook to maintain ‘courteous and pleasant’ relationships with clients at all times. As he had been banned from the site indefinitely, it was no longer possible to maintain that relationship due to his conduct and there was no other suitable work available.

After conclusion of the disciplinary investigation, the employee was dismissed for misconduct. A claim was subsequently brought for unfair dismissal and when the matter went before the Employment Tribunal, they found that the dismissal was fair for the following reasons:

  • It was legitimate for his employer to want to maintain relationships with clients and key suppliers.
  • The Drivers’ Handbook imposed an obligation to follow health & safety instructions on their clients’ site regardless of broader government guidance and;
  • The employee had shown no remorse or understanding of the possible impact of the client relationship which meant trust had broken down

It is likely that this is not the first tribunal case of its kind that will appear regarding refusal to wear PPE.  Employees need to be mindful that refusal to wear a face mask at work for no substantial reason could lead to disciplinary proceedings if employers have clear and concise policies around health and safety and employee conduct. If you have any concerns regarding PPE or if you are exempt then it is important to communicate this with your employer in the first instance to avoid situations like the above.

If you are an employer and you are considering making PPE mandatory in your business, it would be useful to firstly, consider the risk to your business specifically if PPE is not worn. Not all sectors will have the same degree of potential exposure and it is important that a decision like this is proportionate.

Following that, it is worth reviewing the current policies you have in place and whether a consultation needs to take place with your employees to confirm the introduction of PPE and the reasons for this. If third parties or clients regularly attend your business, it may be prudent to display signs or provide PPE, if you are not already doing so.

If you would like to d

If you require any advice on this case or any employment law advice on any issue, please do not hesitate to contact a member of the Employment Law Team.

Additionally, as the vaccine for Covid-19 is currently being rolled out, you may want to consider implementing a voluntary Vaccination Policy. This is in order to help encourage employees to have the vaccine. It also deals with important issues such as providing relevant information about vaccination, time off for vaccinations and data protection. We are able to draft a suitable policy for your business at a cost of only £350 plus VAT. Please contact a member of our Employment Team to discuss this further.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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