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Can You Dismiss an Employee for Refusing to Wear a Face Mask?

on Friday, 05 March 2021.

An employee's refusal to wear a face mask may not always amount to gross misconduct. However, such a refusal could ultimately lead to an employee's dismissal in particular circumstances, as a recent case shows.

A Case for Fair Dismissal

In the case of Kubilius v Kent Foods Ltd, due to the coronavirus (COVID-19) pandemic, one of Kent Food's major customers Tate & Lyle ('Tate') required face masks to be worn by all staff at its Thames site and visitors were issued with a face mask on entry.

The Kent Foods Driver's Handbook stated that customer instruction regarding PPE must be followed and maintaining good relationships with customers and suppliers was essential. The Kent Foods Employee Handbook required:

  • courteous treatment of clients; and
  • that employees take all reasonable steps to safeguard their own health and safety and that of others as a result of their actions at work.

During a delivery to Tate's Thames site, Mr Kubilius refused to wear a face mask whilst sat in his lorry cabin with the window open. Managers at the site were concerned that he could pass the virus to other people due to his elevated position in the lorry. Two Tate employees requested that Mr Kubilius put his mask on whilst in the cabin, however he argued that his cabin was his home and that wearing a face mask was not a legal requirement. He was subsequently banned from the Tate site, which materially affected his ability to do his job.

Following an investigation by Kent Foods, Mr Kubilius was summarily dismissed for gross misconduct. In refusing to comply with Tate's instructions regarding PPE, Kent Foods found that Mr Kubilius had breached the requirements to maintain good relationships with clients and to co-operate to ensure a safe working environment. Mr Kubilius brought a claim for unfair dismissal to the Employment Tribunal.

Was the Dismissal Fair?

The Employment Tribunal held that Mr Kubilius' dismissal had been fair. The reasons behind the decision included the following:

  • Mr Kubilius' failure to comply with Kent Foods' Driver's Handbook had amounted to misconduct.
  • Kent Foods's disciplinary hearing procedure had been fair.
  • Kent Foods's business depended on maintaining good relationships with its suppliers and customers.
  • Mr Kubilius continued to insist that he had done nothing wrong which caused concern as to his future conduct.
  • It was not feasible for Mr Kubilius to continue in his contractual role due to him being banned from the Tate's Thames site.

What Should Employers Do Now?

Although this decision should be treated with caution by employers and it should not be considered that refusal to wear a face mask by employees will always amount to gross misconduct, it highlights how employers should:

  • ensure that any policies and any client policies regarding PPE are communicated adequately to all staff
  • consider staff training on how and when PPE should be worn
  • include the consequences of failure to comply with PPE and other health and safety policies within the policies themselves.

Coronavirus guidance employers

If you would like further advice on the information above or to find out the current requirements concerning PPE in the workplace, please contact Ellen Netto in our Employment Law team on 07384 812798, or please complete the form below.

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