Fair dismissal for refusal to wear a face mask

Kubilius v Kent Foods Ltd

A lorry driver was fairly dismissed for refusing to wear a face mask while on a client’s premises but still in his cab.

Background

Mr Kubilius drove a lorry for Kent Foods (KF). He’d worked there since July 2016 until he was dismissed on 25 June 2020. KF’s major customer was Tate & Lyle and approximately 90% of the company’s work was to and from T&L’s Thames Refinery site. KF’s employee handbook stated that ‘customer instruction regarding PPE requirement must be followed’.

Two months into the first national lockdown, T&L decided that face masks had to be worn by all staff at its Thames site and visitors to the site were issued with them at the gatehouse. During a delivery in May to the T&L site, Mr Kubilius ‘dug his heels in’ and ignored T&L’s requests for him to put on a mask in his cab. Managers at the site were concerned he could pass on the virus while speaking out of the window. But Mr Kubilius argued ‘my cab is my home’ and refused to comply but was quite prepared to wear a mask outside his cab. At the time the incident took place, government guidance stated that ‘wearing a face covering is optional and is not required by law including in the workplace’. T&L subsequently banned Mr Kubilius from its site. After an investigation and disciplinary process, Mr Kubilius was summarily dismissed for gross misconduct. He claimed unfair dismissal.

Tribunal decision

The unfair dismissal claim was rejected.

The reason was conduct – the refusal to comply with an instruction to wear PPE on a client site. KF genuinely believed that Mr Kubilius was guilty of misconduct having investigated facts which were not disputed and it had acted reasonably in treating the alleged misconduct as a sufficient reason for dismissal (thus satisfying all the elements of s. 98 of the Employment Rights Act 1996). While another employer might have chosen to issue a warning, dismissal fell within the range of reasonable responses.

Three issues influenced the tribunal’s decision:

  • the importance of KF maintaining good relationships with its clients
  • the continued insistence by Mr Kubilius that he’d done nothing wrong, which caused his manager concerns as to his future conduct, and
  • the fact that Mr Kubilius couldn’t continue his contractual role because T&L had banned him from their site

Link to judgment: https://www.bailii.org/uk/cases/UKET/2021/3201960_2020.html

Comment

Although this is only a tribunal decision and so not binding on other tribunals, it does indicate the direction of travel of such claims. Here the claimant’s actions were not only insubordinate but they risked the relationship between his employer and their major client and this will always be given weight by a tribunal.