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Covid-19: First Employment Tribunal case for refusal to wear a facemask

Although the case of Kubilius v Kent Foods is a first instance decision (meaning that the decision could be overturned should the Claimant bring a successful claim in the Employment Appeal Tribunal or a higher court), it is likely to be one of the first of many claims relating to the use of PPE in the workplace. This case provides a good example of how and when an employer might fairly dismiss an employee for refusing to comply with a request to wear a mask.

The Claimant in the case of Kubilius v Kent Foods was a Class 1 Driver who was dismissed on 25 June 2020 for failing to comply with a client request to wear a face mask while on site. The Respondent is a food distribution company and counts Tate and Lyle among its largest clients.

On the day of the Claimant’s alleged misconduct, he was visiting a Tate and Lyle refinery, and was provided with a mask upon entry, which, he was informed, was to be worn at all times while on site. Although the Claimant agreed to wear a mask outside his vehicle, he refused to do so while in his cab. When confronted by a manager, the Claimant reiterated that he would not wear a mask while in his cab, and was subsequently banned from site.

At the time of the altercation, the Respondent had a number of policies in place, which make reference to health and safety requirements, including the Employee Handbook, which states that: “You should take all reasonable steps to safeguard your own health and safety and that of any other person who may be affected by your actions at work”, and the Driver’s Handbook which states that: “customer instruction regarding PPE requirement must be followed”. Furthermore, the Employee Handbook makes clear that: “A good relationship with clients and suppliers is essential to the Respondent’s business”.

Following receipt by the Respondent from Tate and Lyle of the Claimant’s actions, the Respondent investigated the matter. When asked by the Respondent to explain his actions, the Claimant expressed his view that face coverings are optional and not required by law, including in the workplace, citing government advice at the time, and highlighted the lack of any specific requirement to wear a mask in Tate and Lyle’s written site instructions. Before making any further decisions, the Respondent asked Tate and Lyle whether they would consider lifting the Claimant’s ban from their site, but this request was denied.

A disciplinary hearing was held and the disciplinary manager came to the decision to dismiss the Claimant. This decision was based on the Claimant’s deliberate refusal to comply with a client health and safety request and his lack of remorse for his actions. Furthermore, as a large proportion of the Respondent’s work was for Tate and Lyle, their refusal to lift the Claimant’s site ban was also a factor in the decision to dismiss. Under s.98(1)(b) ERA, a client removal request such as this may amount to ‘some other substantial reason’ and, therefore, be considered a fair reason for dismissal.

The Claimant was dismissed by a letter, which he received on 25 June 2020, and he consequently brought a claim for unfair dismissal. The Tribunal found that the Claimant’s dismissal had been fair, finding that the Respondent was entitled to dismiss the Claimant for his conduct and lack of remorse, and accepting their argument that the Claimant’s site ban (and a lack of suitable alternative roles) made it infeasible for his employment to continue.

If you choose to take disciplinary action: getting it right

The Respondent in Kubilius v Kent Foods followed a number of steps, which ensured that the Claimant’s dismissal was deemed fair. Significantly, the Claimant in this case did not have a disability and could not provide a reasonable excuse for failing to follow the client’s instructions. Had this not been the case, his dismissal may have been riskier. The above case provides some examples of good practice, which employers should follow should they choose to take disciplinary action:

1. A clear policy on the use of PPE should be in place

In this case, the Driver’s Handbook stipulated that “customer instruction regarding PPE requirement must be followed”, giving reasonable grounds to conclude that the Claimant’s actions were misconduct.

2. The Respondent must carry out a reasonable investigation in the circumstances

Statements were obtained from the Claimant and managers at Tate and Lyle, and the key facts were not disputed.

 3. The disciplinary procedure should be fair

The allegations were clearly set out by the Respondent and the Claimant was encouraged to provide his account of events during the investigation meeting, in a written statement and at a disciplinary hearing. He was also allowed to be accompanied by a friend who could act as an

interpreter. Upon receiving the outcome of the disciplinary hearing, the Claimant was informed of how to appeal the decision.

4. When dismissing for ‘some other substantial reason’ due to a client removal request, it may be advisable to ask the client to reconsider their decision

Employers should be clear as to whether misconduct or “some other substantial reason” is the reason for dismissal. In the above case, the dismissal arose following a client instruction that the Claimant should be banned from site.  In these circumstances, any subsequent dismissal should be treated as for “some other substantial reason”.

The Respondent acted correctly in asking Tate and Lyle to rescind their ban on the Claimant. This allowed the Respondent to argue that they had acted reasonably in exploring all avenues, including seeking to persuade their client to lift the ban, before dismissing the Claimant.

5. The disciplinary manager must have a genuine belief that the Claimant is guilty of misconduct

The disciplinary manager came to the conclusion that the Claimant’s refusal to wear a mask was a serious breach and warranted a severe sanction. The ET determined that the decision to dismiss was within the range of reasonable responses, as the disciplinary manager was entitled to take into account the importance of maintaining good relationships with clients in making his decision.

What does this mean for you or your business?

It is important to note that, although face masks are mandatory for employees in certain settings (e.g. in shops and on public transport), employers may need to conduct a risk assessment to determine whether masks should be used in their workplace. If masks are deemed to be necessary, employers should still tread carefully when enforcing their use, as certain employees (such as those with certain physical or mental illnesses) may be exempt. Employers may face claims of discrimination if they insist that such employees wear a mask. However, if an employee is unable to provide a reasonable excuse for refusing to wear a mask when asked, this may be grounds to initiate disciplinary proceedings for failing to follow a reasonable management request.

Recommended Reading

To read the judgment of Kubilius v Kent Foods, click here.

 

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.

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