Kubilius v Kent Foods Ltd

What happened?

A lorry driver was dismissed for his refusal to wear a face mask when asked to by a client organisation. At that time, government guidance said masks were optional. The driver’s collections involved travel to a major client, Tate and Lyle, which required mandatory face masks on site. The driver refused to wear a face mask during a delivery, despite repeated requests by Tate and Lyle employees. The incident was reported to his employer and Tate and Lyle banned the driver from its site.

The employer’s handbook said staff should follow client instructions regarding PPE and treat clients courteously. The employer held an investigation and disciplinary hearing. The face mask refusal was found to be deliberate non-compliance with reasonable health and safety instructions, aggravated by a lack of remorse. He was summarily dismissed for gross misconduct and later claimed unfair dismissal.

The Hearings

The tribunal held that the dismissal of the driver was fair. The employer had investigated and acted reasonably in treating the misconduct as a sufficient reason for dismissal. Another employer might have issued a warning instead, but dismissal fell within the range of reasonable responses.

The outcome of each case depends on its own facts. Here the driver insisted he had done nothing wrong and was banned from a major client’s site, which would cause future problems for his employer. Refusal to wear a mask can be a fair reason to dismiss someone but might not be fair in a different situation.

Take-away points

• Employers should make all policies and procedures about managing Coronavirus clear, which may include investigating why an employee refuses to wear a mask, including occupational health or medical advice.
• Dismissing an employee who is medically exempt could trigger unfair dismissal and disability discrimination claims.

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