Was dismissal for refusing to wear a face mask fair?

Do I have to wear a face mask at work

In Kubilius v Kent Foods Ltd, an employment tribunal held that the delivery driver was fairly dismissed when he refused to wear a face mask at a client site. Click here for full Case information

Practical tips

This decision, concerning an incident during the first lockdown, highlights how important it is for employers to have clear rules on health and safety and the behaviour expected of employees in their relationships with clients, customers and suppliers.

If an employee working in an environment where face masks are required refuses to wear one, the employer should ask them for the reason.

If the employee does not have a legitimate reason for not wearing a face mask, a failure to wear one is likely to be a refusal to follow the employer’s reasonable instruction and therefore grounds for beginning a disciplinary process.

Where an employee has a legitimate reason for not wearing a face covering, and is exempt under the relevant Regulations, the employer should consider if their role could be adjusted.

Mr Kubilius worked for Kent Foods Ltd as a delivery driver. Kent Foods operates a distribution business and transports food products from suppliers to customers.

Mr Kubilius was based at the company’s depot in Basildon where 90% of the driving work involves deliveries to and from a site of one of its major clients, Tate & Lyle.

Kent Foods makes it clear in its employee handbook that “the company’s success is built upon its relationship with its client’s suppliers”. In relation to health and safety, the handbook states that employees “should take all reasonable steps” to safeguard their own health and safety and that of others. The handbook stipulates that “customer instruction regarding PPE requirement must be followed”.

In spring 2020, Tate & Lyle decided that face masks must be worn at the site as a safety precaution to reduce the risk of coronavirus infection. It did not update its written site rules to reflect this change because it was a temporary measure during the pandemic. Tate & Lyle issued face masks to its visitors.

On 21 May 2020, Mr Kubilius was sitting in his cab at the site when he was approached by a Tate & Lyle employee and told to put his mask on. While Mr Kubilius wore a face mask outside the cab, he refused to do so inside. He told the employee that it was not the law and there was no mention of it in the site rules. The employee explained to Mr Kubilius that, with no mask on, his droplets could land on people’s faces due to his elevated position in the cab. Mr Kubilius remained unwilling despite the request being repeated several times.

The next day, Kent Foods received a complaint from Tate & Lyle about the incident. Kent Foods told Mr Kubilius that Tate & Lyle had banned him from the site and that there would be an investigation. Mr Kubilius attended an investigation meeting and repeated his view that Tate & Lyle had been wrong to ask him to wear a mask. After completing his investigation, the investigator concluded that disciplinary proceedings should be instigated.

In the interim, Kent Foods tried to persuade Tate & Lyle to allow Mr Kubilius back on site, but Tate & Lyle was not willing to reverse its decision. Kent Foods was not able to redeploy Mr Kubilius as there was no other driving work available at the Basildon site.

On 12 June 2020, Mr Kubilius attended a disciplinary hearing to answer the allegation that he had failed “to follow a health and safety Instruction from staff on a suppliers premises, regarding the current requirement to wear a face mask when on site”. Mr Kubilius maintained his stance about not needing to wear a face mask.

The disciplinary manager concluded that Mr Kubilius’ deliberate refusal to comply with a health and safety instruction was a serious breach that was aggravated by his lack of remorse. The manager considered that, even if the site ban had been lifted, he could not be confident that Mr Kubilius would not act similarly in the future and potentially endanger the company’s relationship with its customers. The manager decided that Mr Kubilius’ actions amounted to gross misconduct and, after considering alternatives, that the appropriate penalty was summary dismissal.

Mr Kubilius brought a claim of unfair dismissal in the employment tribunal.

The first question for the tribunal was whether or not Kent Foods had dismissed Mr Kubilius for a potentially fair reason under s.98(1)(b of the Employment Rights Act 1996. The tribunal acknowledged that third-party pressure to dismiss an employee may amount to “some other substantial reason”, but it decided that, on the facts, Mr Kubilius had been dismissed for conduct.

Applying the three-stage test set out in British Home Stores Ltd v Burchell [1978] IRLR 379 EAT, the tribunal found that:

  • Kent Foods had a reasonable belief that Mr Kubilius was guilty of misconduct;
  • there was no significant factual dispute about what had occurred and the investigation was reasonable in the circumstances; and
  • there were reasonable grounds for Kent Foods to conclude that Mr Kubilius had committed misconduct because he had refused to comply with PPE instructions at a client site, thereby breaching a term of the employee handbook.

The final question for the tribunal was whether or not Kent Foods had acted reasonably in all the circumstances in treating Mr Kubilius’ misconduct as a sufficient reason for dismissal.

The tribunal noted that Mr Kubilius had not been given advance warning of the requirement to wear a face mask and that everyone was operating “under a level of stress as keyworkers required to work during the coronavirus lockdown”. In the tribunal’s view, a reasonable employer might have concluded that the incident merited a warning rather than summary dismissal, but the issue it had to decide was not what another employer might have done but if Kent Foods’ decision fell within the range of reasonable responses.

The tribunal found that, in reaching its decision to dismiss, Kent Foods was entitled to take into account:

  • the importance of maintaining good relationships with its suppliers and customers;
  • Mr Kubilius’ continued insistence that he had done nothing wrong and the concern that he may behave similarly in the future;
  • that it was not feasible for Mr Kubilius to continue in his role because he was banned from Tate & Lyle’s site due to his conduct;
  • Mr Kubilius’ lack of remorse; and
  • the practical difficulties cause by Tate & Lyle’s ban.

Having made these findings, the tribunal found that Kent Foods’ decision to dismiss fell within the range of reasonable responses. The tribunal held it was a fair dismissal.

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