Can an employee be dismissed for refusing to wear a face mask?
Whilst there have not been too many examples of Covid related employment issues being decided in the Employment Tribunal yet (although that is not expected to remain the case), one recent decision will provide some comfort to employers.
A judgment regarding dismissal for refusing to wear a mask was handed down in February in the case of Kubilis v Kent Foods.
Background
The employee was a delivery driver, and as per his employer’s handbook, was required to take steps to safeguard the health and safety of not only himself, but also of others whilst at work. The handbook included examples of being required to wear PPE and being courteous to both clients and colleagues.
One of the clients that the Claimant was due to deliver goods to was that of Tate & Lyle, who due to the Covid-19 pandemic had a strict policy of ensuring that all employees and visitors to the site wore a face mask.
On arrival to the site, the Claimant refused to adhere to Tate & Lyle’s policy and stated that as he was in his cab, which was his own space, he would not wear a mask. Several staff members requested that a face mask was worn until the Claimant had left the site, but the Claimant further refused to comply as it was not a legal requirement.
This resulted in the Claimant being banned from the site and a complaint made to his employer. The Claimant was invited to a disciplinary hearing where it was held that he would be summarily dismissed for refusing to comply with PPE instructions, failing to maintain a safe working environment and breaching the duty to maintain a good relationship with clients.
Decision
The Employment Tribunal held that the employer had fairly dismissed the Claimant on the grounds that he was guilty of misconduct. It was questioned whether a warning could have been issued rather than an immediate dismissal but it was held that dismissal fell within the range of reasonable responses. A further factor taken into account was the importance that the Respondent placed on maintaining good client relationships, and ultimately the Claimant had caused damage to this.
Take away points
Whilst this case highlights the powers that employers have when dealing with a refusal by a staff member to follow instructions, ensuring a fair procedure was adopted remains a key factor.
If an employee is refusing to comply with health and safety or PPE instructions, the Tribunal has shown that dismissal can be a reasonable response and will take client relationships into account.
If you require assistance with dismissals or on any of the above, then please call the team on 01752 663295.