Over the past year, face masks have become an ordinary part of life and it was only a matter of time before they became the focus of a workplace dispute. In the first such dispute to reach a tribunal, Kubilius v Kent Foods Ltd (ET/3201960/2020), an employment tribunal found that a lorry driver was dismissed fairly for his refusal to wear a face mask on a client’s premises.
Mr Kubilius was employed as a lorry driver and much of his work consisted of making deliveries to and from the employer’s major client.
In response to the COVID-19 pandemic, the client made it compulsory to wear face masks at their site, even for visitors. During a delivery, Mr Kubilius was repeatedly asked to wear a face mask while he was inside the cab of his vehicle, but he refused to do so. The client consequently banned Mr Kubilius from its site.
While wearing face masks was optional under the government guidance at the time of the incident, the employer’s staff handbook required Mr Kubilius to treat clients courteously, safeguard their own health and safety, and follow clients’ instruction regarding PPE.
After an investigation and disciplinary hearing, the employer determined that, by refusing to wear a face mask, Mr Kubilius had deliberately refused to comply with a health and safety instruction and that this breach was aggravated by his lack of remorse. It considered, even if the client lifted the site ban, the employer could not trust Mr Kubilius not to behave in the same way in the future and potentially endanger its relationships with clients. As such, the employer found Mr Kubilius had committed an act of misconduct that merited a severe sanction and he was summarily dismissed.
The tribunal found that the dismissal was fair. The employer had carried out a reasonable investigation and genuinely believed that Mr Kubilius was guilty of serious misconduct. Further, it acted reasonably in treating the misconduct as a sufficient ground for dismissal, taking into consideration the following circumstances:
- the importance of maintaining good relationships with clients;
- Mr Kubilius’s insistence that he had done nothing wrong, which raised concerns as to his future conduct; and
- the fact that Mr Kubilius could not continue much of his role because he was banned from the client’s site.
Although the tribunal noted that another employer might have given a warning, rather than dismissing, the dismissal fell within the range of reasonable responses.
Implications for employers
This is the first case a tribunal has decided on whether refusing to wear face masks can amount to a fair ground of dismissal – finding that yes, it can. Although not binding on other tribunals, this decision gives an initial steer as to how tribunals may handle dismissals due to refusals to wear face masks.
However, this decision should not be taken as a green light for employers to dismiss employees who refuse to wear face masks. Whether face mask refusals will be deemed a sufficient reason for dismissal will depend on the particular circumstances of each case. Furthermore, as the lockdown and social restrictions ease, face mask refusals may have different weight and impact, and such changes should be factored into determining an appropriate response to an employee’s refusal to wear face masks.