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With face masks firmly accepted as the 'new normal' to prevent the spread of Coronavirus, in the first case of its kind, the Employment Tribunal has ruled that a lorry driver was fairly dismissed for refusing to wear a face mask on a customer's premises.
In Kubilius v Kent Foods Ltd, Mr Kubilius was a lorry driver and made deliveries to a particular customer on behalf of his employer, Kent Foods Ltd. The employee handbook contained rules for drivers to treat customers courteously and to take reasonable steps to safeguard their own health and safety and that of others too. Also, drivers were told to follow any rules customers may have had on their premises regarding PPE and health and safety.
The customer in question issued face masks to all visitors upon arrival and required everyone to wear a face mask at all times whilst on their site. Mr Kubilius was told that without one, droplets from his mouth would land on peoples' faces due to his elevated position in his lorry. However, Mr Kubilius repeatedly refused to wear a face mask on the customer's site, and, as a result, he was banned from the customer's site.
Kent Foods investigated the incident, and a disciplinary process was followed. Kent Foods summarily dismissed Mr Kubilius for failing to comply with their health and safety rules and those of the customer.
In this case, yes. The Employment Tribunal rejected Mr Kubilius' unfair dismissal claim.
Whilst the Tribunal noted that a different employer might have chosen to issue a warning, Kent Foods had acted reasonably in the circumstances in dismissing Mr Kubilius for gross misconduct, and it highlighted three important factors for that decision:
Clearly, in this case, the emphasis the employer placed on strict health and safety compliance in its handbook and compliance with any rules communicated by customers were factors pointing to a fair dismissal.
While not binding on future Tribunal decisions, the decision highlights how a Tribunal might assess similar misconduct dismissals involving health and safety concerns and rules on PPE in the context of a disobedient employee.
Although the employee's refusal to wear a face mask, in this case, did amount to a fair reason for dismissal, it is important to note that each case will turn on its own facts. Where an employer places less of an emphasis on health and safety or where the refusal to wear a mask does not pose a clear health and safety risk, a warning may be a more reasonable response to such disobedience.
Whilst this is the first dispute of this kind to reach the Employment Tribunal, it is unlikely to be the last. Employers must have clear policies in place setting health and safety rules that address the deadly risks of COVID-19. Equally important is that such policies are kept updated in line with the most recent Coronavirus guidance.
If you would like further information or advice on setting clear policies in place regarding COVID-19, please contact our Employment Team on 0161 941 4000 or email The Employment Team for more information.