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Lorry driver dismissed for refusing to wear a face mask

Is dismissal a reasonable response where an employee has refused to wear a face mask? Is refusal to adhere to an employer’s PPE guidance alone enough to justify dismissal?

Deimantas Kubilius v Kent Foods Ltd (Employment Tribunal 2021)

The Claimant was employed by Kent Foods Ltd (“Kent Foods”) as a Class 1 HGV driver from July 2016 until his dismissal without notice in June 2020. Kent Foods is a distribution company which transports food products from suppliers to customers.

The Claimant was based primarily out of Kent Foods Basildon depot, and approximately 90 per cent of the work from this depot involved driving to and from Tate & Lyle’s (“T&L”) Thames Refinery site, a sugar company and a major client of Kent Foods.

In light if the Coronavirus pandemic, T&L had taken the decision to make wearing a face mask mandatory at its Thames Refinery site to reduce the risk of coronavirus infection. It did not update its written site rules because it was a temporary rule change during the pandemic, but all visitors were issued with face masks at the gatehouse.

On 21 May 2020, T&L emailed Kent Foods alleging that one of their drivers had attended their site and advised that when he was asked to wear a face mask on arrival, he refused, arguing that he was not required to wear one. T&L banned the driver from their site as a result. On further investigation, Kent Foods established that the driver was the Claimant.

When questioned about this incident, the Claimant contested that he had done nothing wrong as he did not need to wear a mask whilst sat inside his cab and it was not a legal requirement to wear a mask according to government guidance. Furthermore, there was nothing in T&L’s written instructions regarding the need for visitors to wear face masks, and he had never been required to wear one previously.

Kent Foods considered that the facts described by the Claimant showed a breach of the requirements in their Employee Handbook to maintain good relationships with customers and suppliers and to cooperate to ensure a safe working environment. This was because the Claimant had admitted to refusing to comply with an instruction regarding PPE at a supplier’s site. Furthermore, T&L had refused to lift the Claimant’s ban on attending the site. The Claimant was dismissed and did not appeal against the decision.

The Claimant then brought a claim for unfair dismissal.

Decision

The Employment Tribunal found that the employer’s decision to dismiss fell within the range of reasonable responses. In particular, the Claimant’s lack of remorse and the practical difficulties caused by the T&L site ban meant Kent Foods’ decision to dismiss was therefore fair.

Comment

Although this decision may afford some relief to employers in terms of compulsory use of PPE by staff, it does not prove absolute clarity. This is an unusual case, with the key issues concerning the consequences of the employee’s refusal to comply with PPE guidance, rather than solely the refusal itself. Here, the damage caused to the relationship between the employer and one of its key customers, coupled with the Claimant’s lack of remorse, resulted in the dismissal being deemed fair.

In determining whether a dismissal by an employer is fair or unfair, section 98 of the Employment Rights Act 1996 provides that an employer must show the reason for the dismissal and that the reason falls under one of those set out under this section. In order to establish whether the reason for the dismissal was fair, a tribunal will decide, in accordance with equity and the substantial merits of the case, whether in the circumstances the employer acted reasonably in treating the potentially fair reason as a sufficient reason for dismissal. This is known as the ‘reasonable responses test’. A tribunal must objectively assess whether dismissal fell within the band of reasonable responses available to the employer.

No doubt there will be many cases to be heard by Employment Tribunals which will arise from factual circumstances linked to the pandemic and employers will have to navigate new and complex issues without the benefit or an existing body of case law. If you need any assistance in with any tricky issues, please do not hesitate to contact one of the Employment Team on 01228 552600 or 01524 548494.

 

This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.

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