• Lucy Stephenson

Fair Dismissal for Refusing to Wear a Face Mask


Face masks have become a symbol of the COVID-19 pandemic, and we now seldom give them a second thought as we go about our daily business. Despite face masks being mandatory in shops, they are not required by law in all workplaces. Accordingly, the decision as to whether to require their use has been left to individual businesses, with the sanction for failures to do so similarly left in the hands of the respective employer. A recent Employment Tribunal case (Kubilius v Kent Foods Ltd) has shone a light on the degree to which employers can enforce the wearing of masks.


What happened


The Claimant was employed by Kent Foods as a delivery driver. In light of the COVID-19 pandemic, the Respondent had updated its employee handbook stating that all employees must take all reasonable steps to safeguard their own health and safety and that of others as a result of their actions at work. The handbook also required customer instructions regarding PPE to be followed.


One of the Respondent’s client’s, the sugar company Tate & Lyle required face masks to be worn by everyone on their sites – staff and visitors. Visitors who did not have a mask would be issued one on arrival. Mr Kubilius arrived at Tate & Lyle’s site in his vehicle and was asked (whilst still in his vehicle) to put on a face mask by two employees of Tate & Lyle. The Claimant ignored the request, stating that as he was in his vehicle, wearing a mask was not a legal requirement. As a result of the incident, Tate & Lyle banned Mr Kubilius from the site on the grounds of non-compliance with health and safety rules and his conduct was reported to his employer.


Kent Foods launched an investigation and following a disciplinary hearing, the Claimant was summarily dismissed on the basis that in refusing to comply with Tate & Lyle’s instructions regarding PPE, he had breached the requirement to maintain good relationships with clients and to cooperate to ensure a safe working environment. Mr Kubilius showed no remorse at the disciplinary hearing and later claimed unfair dismissal.


Decision


The Employment Tribunal held that Kent Foods decision to dismiss the Claimant had been fair. The Respondent had a potentially fair reason for dismissal, namely conduct, and after carrying out a reasonable investigation, the Respondent had a genuine belief that the Claimant had been guilty of gross misconduct. Kent Foods had acted reasonably in treating the alleged misconduct as a sufficient reason for dismissal and whilst another employer may have chosen to issue a warning (rather than dismiss the Claimant), the dismissal fell within the range of reasonable responses and thus not unfair.


It was held that the Respondent had been entitled to take account of the importance of maintaining good relationships with its clients, Tate & Lyle being a client that provided them with around 90% of their work. The fact that the Claimant could no longer deliver to Tate & Lyle significantly limited the work he could carry out for the Respondent, and the fact that Mr Kubilius remained of the opinion that he had not done anything wrong, raised concerns about his future conduct.


What employers should bear in mind


This case shows that it is plausible that an employer who dismisses an employee for refusing to wear a mask on its own premises, may also be acting fairly, if a fair procedure is followed and employees are treated consistently. It is important for employers to clearly communicate to employees the rules surrounding the wearing of PPE in the workplace. However, employers must remember that each Employment Tribunal case is judged on its individual merits and a judgement has no precedent value for any future cases. As restrictions are lifted, refusals to wear a mask may be viewed differently.