On the 10th February 2021, Employment Judge Barrett, sitting at East London Employment Tribunal, handed down the Judgment following a claim for unfair dismissal brought by a Claimant who had been summarily dismissed for gross misconduct when he failed to wear a face mask.
The Facts
The Claimant, Deimantas Kubilius, had been employed by Kent Foods Ltd. since the 25th July 2016 until his dismissal on the 25th June 2020. He was employed as a Class 1 Driver and based at their Basildon depot. Kent is a distribution company, which transports food products from suppliers to customers. One of its major clients is the sugar company, Tate & Lyle, and approximately 90% of the driving work done from the Basildon site involves driving to and from Tate’s Thames refinery site.
Kent’s Employee Handbook clearly required drivers to:
- treat their clients courteously; and
- take all reasonable steps to safeguard their own health and safety and that of others as a result of their actions at work.
Further, its Driver’s Handbook required all drivers to follow customer instruction regarding the wearing of PPE.
Due to the Covid 19 pandemic, Tate required face masks to be worn by everyone at their Thames refinery site and upon arrival, all visitors were issued with a face mask.
On the 21st May 2020 Mr. Kubilius, upon arrival, was asked by two Tate employees to wear a face mask while he was in the cab of his vehicle. He was told very clearly that without one, droplets from his mouth were going to land on people’s faces due to his elevated position in his cab, and that Tate’s rules required him to wear a face mask until he left the site.
Despite this, Mr. Kubilius maintained his refusal to wear a face mask and argued that his cab was his own area and that wearing a face mask was not a legal requirement. Mr. Kubilius did make it clear to the Tate employees that he would wear a face mask if he left the cab and was outside. Tate, perhaps understandably, reported the incident to Kent and banned Mr. Kubilius from making deliveries or attending its Thames refinery site.
Kent undertook an investigation and then invited Mr. Kubilius to a Disciplinary Hearing. The allegation he had to face was that in refusing to comply with Tate’s instruction regarding PPE, he had breached the requirements to maintain good relationships with clients and to cooperate to ensure a safe working environment.
Following the disciplinary process, Mr. Kubilius was summarily dismissed for gross misconduct.
Mr. Kubilius then issued proceedings against Kent and claimed unfair dismissal. He represented himself at the remote Hearing on the 19th January 2021, with the assistance of a Polish language interpreter.
The Decision
Employment Judge Barrett held that the dismissal had been fair. Kent had a genuine belief that Mr. Kubilius had been guilty of misconduct, having carried out a reasonable investigation into facts, which were not significantly in dispute. Mr. Kubilius freely admitted that he had refused to wear a face mask. Kent had acted reasonably in treating the alleged misconduct as a sufficient reason for dismissal. While another employer might have chosen to issue a warning, dismissal fell within the range of reasonable responses.
Kent had been entitled to take account of:
- the importance of maintaining good relationships with its clients; and
- Mr. Kubilius’s continued insistence that he had done nothing wrong – which caused Kent concern as to his future conduct; and
- the practical difficulties arising from Mr. Kubilius being banned from Tate’s Thames refinery site.
Therefore, all employees should take heed of this case and follow Management and, if necessary, client instruction regarding the wearing of PPE. It is important to stress that Mr. Kubilius was not dismissed for refusing to wear a face mask per se, but refusing to comply with an instruction to wear PPE on a client’s site.
If employers wish their employees to be obliged to wear PPE, their policies must be crystal clear and well communicated to their employees.
If you require guidance on any of the above issues, or have any other queries in relation to employment or HR law, please contact Jonathan Moreland by email at jmm@swinburnemaddison.co.uk or call him on 0191 3842441.
