Facemask refusal - not unfair dismissal

No unfair dismissal where employee dismissed for refusing to wear a facemask

A recent Employment Tribunal decision has given some clarify and reassurance to employers who discipline staff for refusing to wear facemasks during the pandemic.

In Kubilius v Kent Foods Ltd, Mr Kubilius was employed as a delivery driver by Kent Foods Ltd. The employer’s handbook required courteous treatment of customers, and that employees take all reasonable steps to safeguard their own health and safety and that of others as a result of their actions at work. Their driver's handbook required customer instructions regarding PPE to be followed.

Mr Kubilius worked at Kent's Basildon depot where the majority of the work involved travel to and from the Thames refinery site of Tate & Lyle (Tate).

Due to the COVID-19 pandemic, Tate required facemasks to be worn at the Thames refinery site and all visitors were issued with a facemask on arrival. On 21 May 2020, despite being asked by two Tate employees, Mr Kubilius refused to wear a facemask 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 Tate's rules required him to wear a facemask until he left its site. He maintained his refusal, arguing that his cab was his own area and that wearing a facemask was not a legal requirement. Tate reported the incident to Kent and banned Mr Kubilius from its site. Following an investigation, Mr Kubilius was invited to a disciplinary hearing into the allegation that, in refusing to comply with Tate's instruction regarding PPE, he had breached the requirements to maintain good relationships with clients and to co-operate to ensure a safe working environment. Mr Kubilius was then dismissed.

Mr Kubilius claimed unfair dismissal, but the Employment Tribunal hearing his case held that the dismissal was fair. The employer had a genuine belief that Mr Kubilius had been guilty of misconduct, that they carried out a reasonable investigation into the facts, and it had acted reasonably in treating the alleged misconduct as a sufficient reason for dismissal, the decision to dismiss falling within the range of reasonable responses available to them. Importantly, the employer had been entitled to take account of the importance of maintaining good relationships with its clients.