8th Jun 2021

Can an employee be dismissed for not wearing a face mask?

Can an employee be dismissed for not wearing a face mask?

For many of us, wearing a face mask or covering when we’re out and about has almost become second nature, including in the workplace.

So, what if an employee refuses to wear a face mask or covering, can they be dismissed?  In short, the answer is yes, depending on the circumstances.

In the first case of its kind, an employment tribunal in Kubilius v Kent Foods Ltd [2021] found that a lorry driver was fairly dismissed where the reason for that dismissal was his refusal to wear a face mask. 

The Background

Mr Kubilius was employed a delivery driver for Kent Foods Ltd.  Much of Mr Kubilius’s work involved travel to and from one his employer’s 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 by Tate employees, Mr Kubilius refused to wear a face mask while he was inside the cab of his lorry. Tate reported the incident to his employer and consequently banned Mr Kubilius from its’ site.

Kent Foods carried out its’ own investigation and invited Mr Kubilius to a disciplinary hearing. The outcome was 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 Mr Kubilius would not behave in the same way in the future and potentially undermine their client relationship with Tate. 

Mr Kubilius was summarily dismissed for gross misconduct and subsequently brought a claim for unfair dismissal against his employer.

Employment Tribunal Decision

The employment tribunal held that Mr Kubilius’s dismissal had been fair.

Kent Foods had a genuine belief that Mr Kubilius had been guilty of misconduct having carried out a reasonable investigation into the facts (that were not in significant dispute).  The employer had acted reasonably in treating this alleged misconduct as a sufficient reason for dismissal. 

In reaching its’ decision, Kent Foods had considered the importance of maintaining good client relationships, Mr Kubilius’s insistence that he had done nothing wrong (raising concerns as to his future conduct), as well as the practical issue of him being banned from a major client’s site and the logistical difficulties that presented.

Whilst another employer might have chosen to issue a warning, the tribunal decided that dismissal fell within the range of reasonable responses and Kent Foods’ decision to dismiss was therefore fair.

 

What you need to know - Action Points

Firstly, it’s worth noting that this decision is not binding, which means that another employment tribunal could decide a similar case differently and not in the employer’s favour.

As such, 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.

Employers should therefore note that each case will be decided on its’ own facts, and a full evaluation of all the relevant facts and circumstances applicable to the individual case must be carried out in terms of fairness and proportionality.

Here are some action points for employers to consider taking if faced with a similar situation and/or to minimise the risk of a claim:

  • Make sure that all employees are clear about any new rules that relate to managing Covid 19 – update policies and procedures where needed.
  • 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.  Seek medical advice before proceeding with any action.
  • If an employee breaches a rule, explain it to them and make it clear that further action will be taken, including disciplinary action, if the employee persists in breaching that rule.

If you are reviewing your Covid 19 guidance and employee working requirements, and need any support or guidance on these issues, please call Mike Patterson on 01423 542778, or email mikepatterson@berwins.co.uk.

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