An Employment Tribunal in England rules that Employee’s dismissal for refusal to wear face mask was fair in Kubilius v Kent Foods Limited [2021].

The Claimant in this case, Mr Kubilius, was employed as a delivery driver by Kent Foods Limited (Kent) and transported food products to the Respondent’s clients, one of which was Tate & Lyle. The Claimant was employed by the Respondent from 25th July 2016 until he was dismissed without notice on 25th June 2020.

Within Kent’s Employee Handbook it outlined that it is essential to retain a good relationship with clients and suppliers. The handbook required employees to take all reasonable steps to safeguard their own health and safety and that of others as a result of their actions at work and specified that all customer instructions regarding PPE must be followed.

The majority of Mr Kubilius’s daily work involved travel to and from the Thames refinery site of Tate & Lyle. Due to the ongoing COVID-19 pandemic, Tate & Lyle required face masks to be worn on-site and all visitors were issued with a face mask on arrival. On 21st May 2020, despite being asked by two Tate & Lyle employees, Mr Kubilius refused to wear a face mask while he was in the cab of his vehicle. He was informed that without a mask, droplets from his mouth could land on people’s faces due to his elevated position in his cab. He was further reminded that Tate & Lyle’s rules stipulated that all visitors must wear a face mask until they leave the site. Mr Kubilius continued to refuse to wear a mask, arguing that his cab was his own area and that it was not a legal requirement to wear a face mask.

Following this incident, the Client reported the matter to Kent Food Limited and banned Mr Kubilius from its site. The Respondent conducted an investigation into the matter and held a disciplinary hearing with the Claimant. The Respondent concluded that in refusing to comply with the client’s instruction to wear PPE, he had breached the requirements to maintain good relationships with clients and to co-operate to ensure a safe working environment. Mr Kubilius was therefore summarily dismissed on 25th June 2020.

The Employment Tribunal held that the dismissal had been fair. They ruled that the Respondent had a genuine belief that Mr Kubilius had been guilty of misconduct having carried out a reasonable investigation and as such had acted reasonably in treating the alleged misconduct as a sufficient reason for dismissal. The Respondent’s decision to dismiss fell within the range of reasonable responses.

This case provides a valuable insight as to how our Industrial Tribunal may approach similar cases relating to health and safety issues stemming from the COVID-19 pandemic. It should give employers some comfort that they can discipline or dismiss staff for failing to comply with reasonable requirements brought in to combat the spread of the virus.

Should you require advice or assistance in relation to any of the above please do get in touch with Jan Cunningham or David Mitchell in our Employment Team.