Tribunal finds that dismissal of driver for refusing to wear a mask was fair

Employer was entitled to dismiss in circumstances surrounding the refusal.

The Covid-19 pandemic has seen many working practices change, with a variety of measures brought in to lessen the perceived risks of staff infecting one another whilst at work.

Employers are subject to a raft of health and safety obligations which impose minimum standards and expectations in respect of the steps they take to ensure the safety of their staff and anyone else who works on, or visits, their worksites.

A recent employment tribunal case considered whether it was fair for an employer to dismiss an employee who refused to wear a mask when asked to do so on a customer’s site.

Case: Kubilius v Kent Foods Limited

In May 2020 Mr Kubilius’s work as a driver for KFL took him to Tate & Lyle’s Thames refinery site, a major customer of KFL. Upon entry to the site, Mr Kubilius was given a health and safety information sheet covering the site and a mask.

Whilst parked up, another employee on the site motioned to Mr Kubilius to put his mask on whilst he sat in his lorry cabin. Mr Kubilius refused, and he refused again when a site manager also asked him to put his mask on, despite the site manager setting out that this was T&L’s policy. Mr Kubilius’s refusal was on the grounds that wearing his mask was not on the health and safety information sheet he was given when he entered the site and he considered his lorry cabin to be his workplace and, at the time, government guidance did not force workers to wear face coverings whilst at work. Mr Kubilius was warned that if he refused to comply he would be banned from the site, but he continued to refuse before he eventually left.

T&L contacted KFL and informed them that Mr Kubilius had been banned from their Thames refinery for refusing to follow health and safety protocol while on site. It was a requirement of KFL’s employee handbook that staff were expected to be courteous to customers and to comply with customer requirements regarding health and safety. The handbook made it clear that customer relationships were key to the business’s success. KFL decided the matter was a conduct issue and began disciplinary proceedings.

At his disciplinary, Mr Kubilius made the same arguments to KFL that he had to T&L staff - that the health and safety information provided to him by T&L did not state he had to wear a mask in his lorry cabin, and that he, in effect, did not need to comply because his lorry cabin was his workplace and it was not the law that workers had to wear face coverings whilst in their workplace.

KFL decided to dismiss Mr Kubilius on the grounds that he failed to comply with a customer health and safety requirement. The dismissing manager considered that Mr Kubilius had potentially damaged the customer relationship by his refusal. The manager also decided that this type of behaviour may happen again because of Mr Kubilius’  refusal to apologise and the fact that he had shown no remorse or reflection. Because T&L had refused to rescind the site ban, it was effectively impossible for Mr Kubilius to perform his role and no other roles were available.

Mr Kubilius did not appeal the decision and brought an unfair dismissal claim.

Tribunal decision

The employment tribunal considered that KFL’s decision to dismiss Mr Kubilius was reasonable. Although another employer might have stopped short of dismissal and issued a warning, the tribunal held that dismissal was within the range of reasonable responses.

The Tribunal considered that KFL had a genuine belief that Mr Kubilius was guilty of misconduct, that it had carried out a reasonable investigation and there were reasonable grounds to conclude that Mr Kubilius had committed an act of misconduct because his actions specifically went against the staff handbook. The overall disciplinary procedure had been fair and given all the circumstances, including the customer relationship, the fact that Mr Kubilius was banned from the customer’s site, and his lack of remorse, it was reasonable to decide to dismiss him.

Conclusion

Despite the headline-grabbing aspects of this case it does not set a precedent about the use of masks at work but it is an interesting example of how misconduct dismissals relating to Covid-19 health and safety procedures might be approached by a tribunal. The key takeaway here is that an employer will in some circumstances have grounds to treat refusal to follow health and safety guidance as a misconduct issue. However, such rules must be clearly communicated and management instructions will need to be reasonable and take individual circumstances into account (such as medical issues).

KFL relied on broad obligations imposed on staff to be courteous to customers and to follow customer health and safety instructions to justify Mr Kubilius’s dismissal. However, it is worth noting that the decision to dismiss Mr Kubilius may not have been found to be fair had T&L agreed to rescind the site ban and/or Mr Kubilius had shown remorse for his actions.

This case may provide some comfort to employers who are faced with instances of staff refusing to comply with health and safety requirements on the grounds that they are not compelled to do something by the law. In this case, Mr Kubilius’s insistence that he could not be forced to wear a mask in his cabin unfortunately ran counter to his obligations to his employer and, taking into account all the circumstances surrounding his refusal, ultimately put his employer’s decision to dismiss him within the range of reasonable responses to his actions.