Dismissal for a refusal to wear a face mask was fair


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The tribunal has held in Kubilius v Kent Foods Ltd that an employer fairly dismissed an employee who refused to wear a face mask as required by a client when the employee was visiting the client's site.

The claimant was employed as a delivery driver by Kent Foods Ltd (Kent) and the majority of his work involved travel to and from the Thames refinery site of Tate & Lyle (Tate).  Kent's employee handbook required courteous treatment of clients, and its driver's handbook required customer instruction regarding PPE to be followed.

Tate required face masks to be worn at the Thames refinery site and all visitors were issued with a face mask on arrival.  On one occasion, despite being asked by two Tate employees, the claimant refused to wear a face mask while he was in the cab of his vehicle.  He was told that without one, droplets from his mouth were going to land on peoples' faces due to his elevated position in his cab, and that under Tate's rules he was required to wear a face mask until he left its site. The claimant refused, saying that the cab was his own area and that wearing a mask was not a legal requirement. Tate banned the claimant from its site and, following an investigation, the claimant was invited to a disciplinary hearing after which he was summarily dismissed (for breaching the requirement to maintain good relationships with clients and to co-operate to ensure a safe working environment).

The tribunal held that his dismissal was fair. Kent had a genuine belief that the claimant had been guilty of misconduct having carried out a reasonable investigation into facts that were not in significant dispute.  It had been entitled to take account of the importance of maintaining good relationships with its clients as well as the practical difficulties arising from the claimant being banned from Tate's site, as well as his continued insistence that he had done nothing wrong (causing concern as to his future conduct). 

Take note: This is one of the first decisions dealing with employment issues arising from the pandemic, and certainly won't be the last!  It's worth noting that, in coming to its decision the tribunal found that another employer might have concluded that a warning was merited rather than the decision to summarily dismiss, however the issue was whether the employer's decision fell within the range of reasonable responses.  The site ban, as well as the claimant's stance that he had done nothing wrong meant that the decision to dismiss was reasonable.

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