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Tribunal Rules Refusal to Wear Mask Not So Sweet for Employee

BY Ben Brown
Employment Law & HR

A recent Employment Tribunal case has ruled that an employee was fairly dismissed for refusing to wear a face mask while on a client’s premises, even while still in his lorry cab.


In Kubilius v Kent Foods Ltd, the tribunal held that Mr Kubilius’ employer Kent Foods Ltd (Kent) had fairly dismissed him when he refused to wear a face mask as required by their client when the lorry driver was visiting the client's site.


Kent's employee handbook required employees to be courteous to Kent’s clients and take all reasonable steps to safeguard their own health and safety, and that of others. Its driver's handbook also stated that employees had to comply with client instructions regarding PPE. Mr Kubilius worked from a depot where most of the work involved travel to and from the Thames Refinery site of Tate & Lyle (Tate).


Due to the COVID-19 pandemic, Tate required face masks to be worn at the Thames site and all visitors were issued with a face mask on arrival. In May 2020, despite being asked by two Tate employees, Mr Kubilius refused to wear a face mask while he was in his lorry cab. Managers at the site were concerned he could pass on the virus while speaking out of the cab window due to his elevated position and Tate's rules required him to wear a face mask until he left its site. Mr Kubilius argued that ‘my cab is my home’ (but was prepared to wear a mask outside his cab) and that wearing a face mask was not a legal requirement. When the incident took place, government guidance stated that wearing a face covering was optional and not required by law, including in the workplace. Tate subsequently banned Mr Kubilius from its site and reported the incident to Kent.


After an investigation and disciplinary process, Kent decided that Mr Kubilius, in refusing to comply with Tate's instruction regarding PPE, had breached their requirements to maintain good relationships with clients and to co-operate to ensure a safe working environment and he was summarily dismissed for gross misconduct. He claimed unfair dismissal.


The Employment Tribunal held that the dismissal had been fair as his employer had a genuine belief that Mr Kubilius had been guilty of misconduct having carried out a reasonable investigation into facts which were not disputed. 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, his 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, as well as Mr Kubilius' continued insistence that he had done nothing wrong causing Kent concern about his future conduct, and the fact that he could not continue his contractual role as Tate had banned him from their site. Mr Kubilius’ conduct was not only insubordinate, but also put at risk the relationship between the employer and their major client (around 90% of Kent’s work was to and from Tate’s Thames site).


This is a first instance decision which is not binding on other tribunals and it involved a third-party client and their insistence that the employee be banned from their site which inevitably added weight to the employer’s decision to dismiss. However, it is plausible that an employer who dismissed an employee for refusing to wear a mask on its own premises would also be acting fairly provided, of course, that they followed a fair procedure and treated employees consistently in doing so, taking into account any relevant mitigating factors.

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