In one of the first COVID-19 dismissal cases, an Employment Tribunal had to decide whether an employee was dismissed fairly for refusing to wear a face mask when attending a client's premises.

What does the law say?

In order to dismiss an employee fairly, an employer must establish a potentially fair reason for the dismissal and have acted reasonably in dismissing the employee for that reason. In conduct dismissals, the employer must satisfy the test established by British Home Stores Ltd v Burchell, namely that:

  • it believed the employee to be guilty of misconduct;
  • it had reasonable grounds for believing the employee was guilty of misconduct; and
  • prior to forming that belief, it carried out as much investigation as was reasonable in all the circumstances.

What happened in this case?

Mr Kubilius (K) drove a lorry for Kent Foods and worked at its Basildon depot. Approximately 90% of the work of the Basildon depot involved travel to and from one particular client's premises, namely Tate & Lyle's Thames Refinery site. Kent Foods' Staff Handbook required its employees to:

  • treat clients courteously;
  • take all reasonable steps to safeguard health and safety; and
  • co-operate with the business to ensure a healthy and safe working environment.

Drivers also had to comply with a separate Drivers' Handbook which, among other things, required that "...customer instructions regarding PPE requirements must be followed".

In May 2020, Tate & Lyle decided that face masks must be worn by all staff and visitors at its Thames Refinery site at all times. This was not a legal requirement. At the time, the Government guidance was that "wearing a face covering is optional and is not required by law including in the workplace". K made a delivery to the Tate & Lyle site in May 2020. When he arrived, he was issued with a mask, but he was not told when he must wear it. He was also given a copy of the written site instructions, but these had not been updated to reflect the new rule and did not specify that masks must be worn at all times.

K parked his lorry and sat inside without a mask on. Two Tate & Lyle staff members then told him that he had to put it on inside the lorry, highlighting he could pass on the virus when speaking out of the window from an elevated position. K refused to put it on arguing that the lorry cab was his domain, it was not a legal requirement to wear one and they couldn't force him to do so. However, he said he would wear the mask when he stepped outside of the lorry.

After this incident, Tate & Lyle banned K from the Thames Refinery site for non-compliance with health and safety rules. Kent Foods carried out an investigation and asked Tate & Lyle to lift the ban but to no avail. Redeployment was not an option as there were no roles available that did not require trips to the Tate & Lyle site. The matter proceeded to a disciplinary hearing and K was summarily dismissed for gross misconduct. K claimed that he had been unfairly dismissed.

What was decided?

Kent Foods said it dismissed K because of his conduct. In the alternative, they said he was dismissed because of third party pressure which amounted to "some other substantial reason". The Employment Tribunal dismissed the claim, holding that Kent Foods reasonably believed that K was guilty of misconduct having investigated the facts (which were not disputed). It had acted reasonably in treating the alleged misconduct as a sufficient reason for dismissal.

The Tribunal recognised that another employer might have chosen to issue a warning, in light of the fact that it was a single incident and K had been taken by surprise with the instruction. Further, as a keyworker working in the middle of the national lockdown, he had been operating in a stressful situation. However, it could not be said that dismissal fell outside of the range of reasonable responses open to an employer.

In reaching this decision, the Tribunal attached particular weight to the following factors:

  • the importance to Kent Foods of maintaining good relationships with its main client;
  • K's continued insistence that he'd done nothing wrong, which caused concerns about how he might behave in the future; and
  • the fact that K couldn't do any work because Tate & Lyle had banned him from their site.

What does this mean for employers?

This case involved a relatively unusual set of circumstances in that the employee's actions risked harming the relationship between his employer and their major client and also meant that he couldn't perform his job role. It's unlikely that the outcome would be the same where an employee was summarily dismissed for a failing to comply with an employer's requirement to wear a mask in an office setting on one occasion. It's more likely that an employer would be expected to go through a system of warnings before moving to dismiss. Even then, an employer would need to be very careful not to act inconsistently, given that many staff are likely to commit breaches of COVID-19 health and safety rules (whether intentionally or accidentally).

Is it possible to extrapolate how an Employment Tribunal might view a dismissal for refusal to comply with an employer's requirement to have the COVID-19 vaccine? The battleground will be whether the employer has acted reasonably in the circumstances. Here, an employee's reason for refusing to comply with the instruction will be highly relevant. It will be risky to dismiss an employee who can show that he or she had a good reason for refusing vaccination (and it may also be discriminatory). An employer would also need to consider alternatives to dismissal, such as allowing the employee to work in a lower risk role / environment or from home if feasible.

Kubilius v Kent Foods Limited

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