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Can you sack an employee for not wearing a mask?

This might be a question you have asked yourself when faced with complaints from employees about others not complying with your Covid-Secure arrangements. But it was addressed by an employment tribunal recently.

A delivery driver, Mr Kubilius was fired by his employer, Kent Foods Ltd. for refusing to wear a face mask inside his cab whilst delivering to a supplier in early 2020 during the first Covid-19 lockdown.

The tribunal heard that about 90% of the work done by drivers from the depot he was based involved driving to and from the Tate & Lyle’s refinery site. Tate & Lyle had told Kent Foods that they were making it mandatory for masks to be worn at all time on site. They had not updated their written site rules because it was a temporary change due to the pandemic, but they had issued masks to all visitors on arrival and told them that they must be worn whilst on site.

In May 2020 Kent Foods Ltd. received an email stating that Mr Kubilius had been banned from site after having been asked repeatedly to put his mask on. He had refused to comply saying that he was in his cab and therefore did not have to do that, even though the Tate & Lyle staff had explained why they wanted him to do this.

The matter was investigated thoroughly by Kent Foods and they asked Tate & Lyle if the ban could be lifted, but Mr Kubilius refused to put a mask on saying that it wasn’t the law that he had to do so and he was not going to change his position.

Kent Foods decided that because there were no other client deliveries to which Mr Kubilius could be allocated, they had no alternative but to dismiss him for gross misconduct on the grounds of deliberately refusing to comply with a health and safety instruction. They had also taken into account the employee’s complete lack of remorse and unwillingness to change his position as part of their decision.

The tribunal agreed and rejected Mr Kubilious’ complaint of unfair dismissal.

However, do not take this as a signal that as an employer, you can dismiss people at the first instance of a failure to wear their masks or other PPE. This is only an Employment Tribunal decision – not one from the Employment Appeal Tribunal or higher court, so that means it cannot be relied upon as an Authority. There is no doubt that we will see more of these cases over the months to come and they will all be decided on the facts of each case. So, if you are faced with a similar situation, make sure that you investigate thoroughly; assess whether it could be a mistake or a deliberate omission; and look at the wider ramifications of the matter before making your decision. A warning might be all that is needed to prevent a repetition. If in doubt, seek qualified HR advice before making a decision to dismiss.
Posted on 31 Mar 2021
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