Case Law Update - Kubilius v Kent Foods Ltd

An employment tribunal (ET) has held that an organisation fairly dismissed their employee who refused to wear a facemask on a client’s site.

For a dismissal to be fair, employers must show that the employee was dismissed for one of the following five permitted reasons:

• capability
• conduct
• redundancy
• statutory illegality
• some other substantial reason (SOSR)

The burden of proof is on the employer. They must be able to show that one of the five permitted reasons was the true reason for the dismissal.

Conduct issues range from failure to follow lawful instructions to engaging in activities outside the workplace that damage the employment relationship. An organisation can dismiss in misconduct cases even if the reason does not amount to gross misconduct. However, they are obliged to give notice and follow a fair procedure (warnings may not be necessary)

Face masks & unfair dismissal

Facts

In March 2020, the UK entered its first lockdown as a result of the coronavirus pandemic. By May, some restrictions were starting to be lifted. Conversations were already being had by scientists regarding whether the wearing of facemasks in public spaces could be an effective way of reducing transmission of the virus. Wearing facemasks in certain settings did become a lawful requirement in July 2020.

The claimant in this case was employed by the respondent as a Class 1 Driver. The respondent was an organisation that transported food products from supplier to customer.

In May 2020, the claimant was required to visit a client’s site. On the morning of his visit, the respondent received an email from the client notifying them that the claimant had refused to wear a facemask. As a result they were banned from their site for noncompliance with their health & safety rules.

After being notified that he had been banned from the client’s site, the claimant denied wrongdoing. He stated that he had stayed in his vehicle the entire time he was at the site. For this reason he argued that he was not required to keep his mask on. He also cited government guidance at the time which stated that facemasks were ‘optional and not required by law, including in the workplace.’

The issue was investigated by the respondent. They interviewed the claimant as part of the investigation. It was later found that the claimant had breached the terms in the employee handbook. This stated that employees must be ‘courteous and pleasant to clients/suppliers at all times…’ and that ‘…rudeness or off-hand treatment of clients/suppliers will not be tolerated…’

In addition to this clause, the respondent also had a health & safety clause in their handbook providing that employees should take all reasonable steps to ensure that their own health & safety is safeguarded. Employees should also safeguard any persons who may be affected by their actions at work. Finally, the driver’s handbook also stated that clients’ PPE requirements must be followed.

A disciplinary hearing followed and in June 2020. The claimant was dismissed, later bringing a claim of unfair dismissal to the ET.

ET

The ET held that the dismissal had been fair. They cited the organisation’s employee handbook setting out rules on employee’s expected behaviour. They also cited the respondent’s genuine belief that the claimant had been guilty of misconduct after a thorough investigation into the issue. The client’s unwillingness to cooperate with the requirement to wear a mask, despite attempts from the respondent to rebuild the relationship between the client and the claimant, also worked in the organisation’s favour.

The ET further affirmed their decision by noting that it was clear that keeping a good relationship with their clients is of priority to the success of the respondent’s business. The claimant’s unwillingness to accept fault casted doubt on his future conduct. In all, the ET noted a different organisation in the same situation may have chosen to issue the claimant with a warning. Despite this, the respondent’s decision to issue a dismissal was still a reasonable response.

Note for employers

It’s clear that the organisation’s disciplinary rules put them in a good position to achieve a fair dismissal. They acted reasonably in the specific circumstance and carefully conducted an investigation before concluding on a dismissal.

This case isn’t the first coronavirus related case to be heard by a tribunal since the start of the pandemic. It may be one of many to come, however. It’s crucial that organisations treat coronavirus related cases the same as they would any other issue.

Certain coronavirus issues may be unchartered territory for most employers. Despite this, it’s always best to apply existing rules as best as possible in these situations. For example, make sure you follow fair procedure when dismissing an employee – or seek advice where necessary.

Expert support

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