CASE UPDATE – A delivery driver was found to have been fairly dismissed for refusing to wear a face mask…
On 10 February 2021, the Employment Tribunal held that an employee had been fairly dismissed for refusing to wear a face mask when visiting a customer site in the case of Kubilius v Kent Foods Ltd ET/3201960/2020. Read on for more…….
Facts of the Case
Mr Kubilius was employed by Kent Foods Ltd (the Respondent) as a Delivery Driver. His role required him to follow certain work rules, all set out within the employee handbook. These rules included treating all of the Respondent’s customers with courtesy, specifically, “rudeness or off-hand treatment of clients will not be tolerated…”. He was obliged “to take all reasonable steps to safeguard your own health and safety and that of any other person who may be affected by your actions at work”. Finally, he was instructed “customer instruction regarding PPE requirements must be followed”. The latter meant he should follow customer instructions regarding what PPE must be worn when visiting customer sites.
On 21 May 2020, Mr Kubilius drove into the customer site of Tate & Lyle. As a result of the Covid pandemic, Tate & Lyle required face masks to be worn and all visitors were issued with a face mask when they arrived. Mr Kubilius was asked by two Tate & Lyle staff to wear a mask while he was in the cab of his lorry. These staff told him if he failed to do so, there was a risk that droplets from his mouth could fall onto peoples’ faces and that their rules required him to wear a mask.
Mr Kubilius would not wear a mask in his lorry. He said that the lorry was his own personal area and so it was not a legal requirement for him to wear a mask within it. Tate & Lyle were unhappy about this incident and reported the matter to the Respondent, along with banning Mr Kubilius from their premises.
The Respondent conducted a very detailed investigation into the incident of the 21 May 2020 and invited Mr Kubilius to a disciplinary hearing. The allegation he faced was that in refusing to comply with Tate & Lyles instruction regarding PPE, he had breached the requirements to maintain good relationships with clients and to co-operate to ensure a safe working environment. Mr Kubilius was dismissed without notice following the hearing and pursued a claim for Unfair Dismissal.
Employment Tribunal Judgment
The Employment Tribunal held that the dismissal was fair. They found that the Respondent had a genuine belief that Mr Kubilius had been guilty of misconduct. This was on the basis that the Respondent had carried out a fair and reasonable investigation and the reality of the situation was that the facts were not really in dispute.
They also found that the Respondent had behaved reasonably in treating the misconduct as a sufficient reason for dismissal. Although another employer might have chosen to issue a warning, dismissal fell within the range of reasonable responses. Issues of note were that the Respondent had been entitled to take account of the importance of maintaining good relationships with its clients (i.e Tate & Lyle), Mr Kubilius had never acknowledged any wrongdoing which posed a risk for the future, and there were practical difficulties arising from Mr Kubilius being banned from Tate & Lyle’s premises.
How Can We Help
This case is very important in today’s “new normal”. If you are struggling with Covid 19 related work rules or have been dismissed and want to understand your rights, call for a free, no obligation, consultation on 01522 440512. Alternatively, for more information about the services we provide to employees, please visit our website at https://lincslaw.co.uk/services/employees/
Director, Specialist Employment Law Solicitor
Lincs Law Employment Solicitors, Lincoln