Could a refusal to wear a face mask amount to a fair dismissal?

In the case of Kabilius v Kent Food, the employment tribunal held that an employee had been fairly dismissed as a result of his refusal to comply with a client’s instruction to wear a face mask on its site.

A link to the judgment can be found here.

Summary of the case

The Claimant was employed as a driver for the Respondent. The Respondent is a distribution company which transports food products from suppliers to customers and one of its major clients was Tate & Lyle.

The Respondent made it clear to employees that they must take all reasonable steps to safeguard their own health and safety and that of any other person who may be affected by their actions. In addition, the Respondent’s handbook stipulated that “customer instruction regarding PPE requirements must be followed”.

In the early stages of the pandemic, Tate and Lyle took the decision that face masks were to be issued to all visitors to the site.

During a delivery in May 2020, the Claimant refused to put on his face mask in his lorry despite being repeatedly requested to do so by staff of Tate & Lyle. The Respondent was informed of the incident by Tate & Lyle who stated that the Claimant had been banned from their site for refusal to comply with health and safety rules.

A full investigation and disciplinary process was carried out which resulted in the Claimant’s dismissal. The Claimant subsequently presented a claim for unfair dismissal at the employment tribunal.

The decision

The Tribunal concluded that the Claimant’s deliberate refusal to comply with health and safety instruction amounted to gross misconduct.

Whilst the Tribunal stated that another employer might have chosen to issue a warning, a dismissal in this case was deemed within the range of reasonable responses and therefore, the employee had been fairly dismissed.

The Tribunal’s decision was based on a number of key factors such as:-

1. The Claimant had lacked any remorse and continuously insisted he had done nothing wrong causing a loss of confidence in the Claimant’s future conduct;
2. The practical difficulties arising from the site ban meant that the Claimant could not continue in his role; and
3. It is legitimate for the Respondent to wish to protect its relationships with key clients such as Tate & Lyle.

Comment

Whilst this is the first case from the Employment Tribunal in respect of an employee’s refusal to wear a face mask, it surely will not be the last.

Although in this case the Employment Tribunal found that the dismissal was fair, each case will be determined  on its own individual facts and therefore employers should always consider the range of responses available to them in any given situation.

In this case, the dismissal is unlikely to have been fair had the Claimant had a legitimate reason not to wear a mask i.e. due to a health reason.

Ordinarily, where there is a third party pressure (such as by Tate & Lyle), the fair reason for dismissal will be “some other substantial reason” and the dismissal would take place with notice after a fair process had been followed.

This case acts as a good reminder for employers to ensure that their policies are up to date including clear guidance for employees on what is considered to be an act of gross misconduct.

How can we help?

Employers should be aware of a number of issues that may arise in relation to health and safety during the course of the pandemic. If you would like any advice, please contact our experienced employment team on 01202 525333 or email our employment partner, Kate Brooks at kate.brooks@ellisjones.co.uk