Siobhan Murphy
Posted on 2 Mar 2021

Can an employee be dismissed for refusal to wear a mask?

Kubilius v Kent Foods Ltd ET/3201960/2020

In this recent case, which was heard on 19 January 2021, the Employment Tribunal (ET) considered whether the sanction of dismissal without notice of Mr Deimantas Kubilius (the Claimant), after he refused to wear a face mask, was unfair.

Background

The Claimant commenced employment with the Respondent on 25 July 2016 as a Class 1 Driver. The Respondent was a distribution company which transported food products from suppliers to customers. As part of the Claimant's role, he was required to carry out driving work for a key customer (the Customer) of the Respondent. The Respondent's Staff Handbook expressly required employees to follow customers' instructions regarding PPE requirements and to comply with their PPE instructions when visiting their sites.

On 21 May 2020, the Claimant was required to visit the Customer's site. Later that day, the Customer reported an incident to the Respondent involving the Claimant, part of which involved him refusing to wear a mask after repeated instruction by the Customer, on the basis that "he was in his cab and he didn't have to". He was consequently banned from the site. The Claimant argued that he was not required to wear a mask in his cab as the Government guidance stated (at that time) that wearing a face covering was optional.

An investigation was carried out and the Claimant was suspended on full pay pending its outcome. It was considered that the Claimant's account of events showed a breach of the requirements in the Employee Handbook to maintain good relationships with customers and suppliers and to cooperate to ensure a safe working environment. The Respondent took steps to ask the Customer to rescind the ban on the Claimant, however, this was refused.  

The disciplinary hearing took place on 12 June 2020. At the meeting, the Claimant reiterated that the Customer's request was wrong; he was in his own environment and the Government guidelines stated that wearing a mask at work was optional. The Respondent dismissed the Claimant on the basis that a deliberate refusal to comply with a health and safety instruction was a serious breach of contract. If the Customer's site ban had been rescinded, it may have considered a final written warning as an alternative to dismissal, but this had not been the case.

The Law

Subject to some exceptions, the general rule is that, where an employee has completed two or more years' service with their employer, they have a right not to be unfairly dismissed. Broadly speaking, a dismissal will be unfair, unless:

  • the employer can show that the reason for dismissal was one of five potentially fair reasons (see below); and
  • the ET finds that, in all the circumstances (including the size and administrative resources of the employer), the employer acted reasonably in treating that reason as a sufficient reason for dismissal.

The five potentially fair reasons are as follows:

  • Capacity or qualifications
  • Conduct
  • Redundancy
  • Breach of statutory duty or restriction
  • Some other substantial reason

Third-party pressure to dismiss an employee may amount to ‘some other substantial reason’ and therefore a potentially fair reason for dismissal. In looking at whether dismissal was an appropriate sanction, the question is not whether some lesser sanction would, in the ET’s view, have been appropriate, but rather whether dismissal was within the band of reasonable responses.

For further information, please see our article on Unfair Dismissal Procedures here.

What did the Employment Tribunal decide?

The Respondent argued that it dismissed the Claimant because of his conduct or, alternatively, because of third-party pressure which amounted to ‘some other substantial reason’, and that his dismissal was fair.

The ET found that the principal reason for the dismissal was the Claimant's conduct.  The Respondent had a genuine belief that the Claimant was guilty of misconduct and the investigation fell within the reasonable range of responses. The fact that there was company documentation which set out an obligation on the Claimant to comply with PPE instructions at the Customer's site, and he had admitted that he refused to comply with this, also meant that there were reasonable grounds for the Respondent to conclude that the Claimant had committed misconduct.

Whilst another employer might have chosen to issue a warning, dismissal fell within the range of reasonable responses. Taking into account the relevant circumstances, including Claimant’s lack of remorse and the practical difficulties caused by the site ban, the ET held that the dismissal had been fair.

What can employers take from this?

This judgment by no means provides that all employers are entitled to dismiss an employee without notice if they do not wear a mask. However, it does highlight that, in certain circumstances, an employee's refusal to wear a mask can be considered gross misconduct and constitute a potentially fair reason to dismiss.

This is the first case that addresses this issue and is only a first instance decision which has not been considered by the higher courts. Therefore employers should be mindful that a very different outcome could be delivered on different facts. However, this judgment supports a view that dismissal will be permissible in certain settings. For example, a dismissal for refusal to wear PPE is more likely to fall within the band of reasonable responses in respect of employees who work with vulnerable individuals; for example. paramedics or carers, where the requirement to comply with strict health and safety rules is likely to be paramount.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Siobhan Murphy to discuss any issues you are facing.