Was an employee unfairly dismissed for refusing to wear a face mask?

As more Employment Tribunal judgments are published for cases arising from events which occurred during the first lockdown in 2020, we found one where an employee was dismissed for refusing to wear a face mask and subsequently brought a claim for unfair dismissal. With increasing numbers of people returning to the workplace, employers will be interested to see how the Employment Tribunal decided the claim.

The case

In Kubilius v Kent Foods Limited, Mr Kubilius was employed as a lorry driver. His ex-employer is a distribution company and approximately 90% of the driving work done from where Mr Kubilius worked, involved driving to and from one of their major client’s sites.

In May 2020, Mr Kubilius attended the client’s site. The client had previously decided that face masks should always be worn at the site to reduce the risk of coronavirus infection.

Mr Kubilius was issued with a face mask when booking in. After loading his lorry, Mr Kubilius was sat in his cab waiting to be given some paperwork. An employee of the client approached him and told him to put his face mask on. Mr Kubilius refused to do so. He said that his cab was his own environment and he only needed to wear the face mask when outside of his lorry. The client reported the incident to the employer and stated that they were going to add Mr Kubilius to their banned drivers list.

The employer investigated the matter and Mr Kubilius maintained his position and pointed out that the Government guidance on face masks at the time was that they were optional. The investigator decided that a disciplinary hearing was appropriate, as Mr Kubilius had breached the requirements in the Employee Handbook to maintain good relationships with customers and to cooperate to ensure a safe working environment. He had also breached a requirement in the Driver’s Handbook to comply with an instruction regarding PPE at a customer’s site.

Before the hearing, the employer had asked the client if they would be willing to rescind the ban on Mr Kubilius attending their site, but they refused.

Gross misconduct?

At the disciplinary hearing Mr Kubilius stood firm in his belief that he had not done anything wrong.

Mr Kubilius was dismissed for gross misconduct. The employer’s view was that a deliberate refusal to comply with a health and safety instruction was serious. This was aggravated by Mr Kubilius’ lack of remorse. Even if the site ban had been lifted, the employer would not have trusted him not to act similarly in future. Mr Kubilius did not appeal the decision, but later submitted a claim for unfair dismissal.

Unfair dismissal?

The Employment Tribunal was satisfied that Mr Kubilius had been dismissed for a potentially fair reason, in this case misconduct. It was also satisfied that Kent Foods had followed a fair procedure in relation to the investigation and disciplinary hearing.

The final issue for the Tribunal, was whether the employer had acted reasonably in all the circumstances in treating the alleged misconduct as a sufficient reason for dismissal. As the Judge identified:

“…the question is not what another employer might have done but whether the Respondent’s decision fell within the range of reasonable responses.”

Therefore, whilst another employer might have decided that the misconduct merited a warning rather than dismissal, Kent Foods was entitled to consider the importance to their business of maintaining good relationships with its customers. Mr Kubilius’ continued insistence that he had done nothing wrong caused his employer to reasonably lose confidence in his future conduct. A further relevant factor was that it was not feasible for Mr Kubilius to continue in his contractual role due to the site ban, which arose as a consequence of his conduct. There were no vacancies for any alternative roles that Mr Kubilius could have been redeployed into at the relevant time. The dismissal fell within the range of reasonable responses and was therefore fair.

Conclusion

It should be borne in mind that cases decided at Employment Tribunal level are not binding and that each case needs to be decided on its own facts. However, this case will be of interest to employers wondering what to do if an employee refuses to wear a mask. Employers must follow a fair procedure from the investigation onwards and ensure that any decisions taken fall within the range of reasonable responses that a reasonable employer in the circumstances might adopt. For example, the dismissal of an employee who is medically exempt from wearing a mask could be unfair and might also amount to disability discrimination. We can advise you on the best approach to take and help minimise the risk of any claims.