Fair dismissal for refusing to wear a facemask

An Employment Tribunal has found that a lorry driver was fairly dismissed for refusing to wear a face mask while on a customer’s premises but still in his cab.

Mr Kubilius worked for Kent Foods as a delivery driver. As per the company's employee handbook, he was required to take all reasonable steps to safeguard his health and safety and that of others and to follow the company's customer instructions regarding PPE requirements.

Mr Kubilius had attended a customer site which had introduced temporary health and safety rules as a result of the Covid-19 pandemic. The rules stated that all staff and visitors must wear facemasks at all times when on site. Despite being requested to do so on two occasions, the Claimant refused to wear his facemask claiming that this did not apply when he was in his cab.  As a consequence the customer banned him from attending their site as it was concerned that although Mr Kubilius was in his lorry the window was open and staff would be handing paperwork to him.

Kent Foods carried out an investigation, and as Mr Kubilius admitted to refusing to comply with an instruction regarding PPE the matter progressed to a disciplinary.  The Company considered alternative roles and even approached the customer to overturn Mr Kubilius’ site ban but it refused. Kent Foods found that Mr Kubilius had breached the terms of the employee handbook which amounted to gross misconduct and summarily dismissed him.

Mr Kubilius brought a claim for unfair dismissal.

The Tribunal found that the dismissal was a reasonable response and therefore fair. In coming to its decision the Tribunal found that Mr Kubilius had shown a lack of remorse for his actions and had risked the relationship between his employer and their major customer.

Whilst this case is not binding on other Tribunals, it provides an insight into how an employment tribunal will approach such cases. This judgement by no means provides that all employers are entitled to dismiss an employee if they do not wear a mask as some employees may have genuine reason for refusing to do so such as a health condition.  It is imperative for an employer to consider all the circumstances when considering dismissal and to follow a fair process. 

If you are experiencing similar issues  would like to discuss, please contact Talbots employment team on 0800 118 1500 or email Ellie Robinson-Brady