Covid-19, Employment Law

Covid-19: Dismissal for refusing to wear a facemask

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Covid-19: Dismissal for refusing to wear a facemask

In one of the first covid-19 related tribunal cases reported, a Tribunal held that an employee was not unfairly dismissed on the grounds of gross misconduct after refusing to wear a face mask at a customer’s site (Kubilius v Kent Foods Ltd).
On face value, an employer is likely to read the headlines of this case and conclude that a refusal to wear a facemask is gross misconduct. However, the employee in this case was not dismissed for non-compliance of the face mask rule, but he was in fact dismissed because of the negative impact the non-compliance had on the customer relationship.

What were the facts of the case?

The case involved Mr Kubilius who was employed as a delivery driver for the Respondent (Kent Foods) who required its drivers to comply with customer instructions regarding PPE. One site required face masks to be worn by visitors. Mr Kubilius refused to wear a face mask, despite being requested to do so by the customer. He was thereafter banned from this site by the customer which led to his dismissal. Mr Kubilius brought an unfair dismissal claim in Tribunal.
In reaching this decision, the Tribunal took into account the following factors:

  1. The Respondent had a policy which stated that “customer instruction regarding PPE requirement must be followed”;
  2. The Respondent was entitled to take into account the importance to the Respondent’s business of maintaining good relationships with its customers;
  3. Mr Kubilius’s continued insistence that he had done nothing wrong throughout the disciplinary process caused the Respondent reasonably to lose confidence in the Mr Kubilius’s future conduct; and
  4. That it was not feasible for Mr Kubilius to continue in his contractual role as the customer had banned him from site and there were no alternative roles available for him.
Why is the decision important?

The decision not only highlights how important it is for employers to have clear rules on health and safety and employee behaviour with customers – but it also shows that it is not clear whether a Tribunal is likely to hold a dismissal for refusal to comply with an employer’s PPE requirement can be justified. However, the Tribunal acknowledged that a reasonable employer might have concluded that this instance of misconduct merited a warning rather than summary dismissal.
Based on the usual employment law principles, unless an employee has a legitimate reason for not wearing a face mask (such as, a disability that prevents them from wearing a facemask), failure to wear one is likely to warrant disciplinary action on the basis of a refusal to follow the employer’s reasonable instruction and breach of health and safety policies. Whether it could warrant a gross misconduct dismissal will depend largely on the facts and the employee’s type of work to justify the misconduct was sufficiently serious.

Author: Anna Schiavetta, Employment Law Solicitor
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