Refusal to Wear a Mask & Employment Tribunal Case

Over the past year, face masks have become part of normal daily life and it was only a matter of time before they became the focus of a workplace dispute. In the first such dispute of this kind to reach an employment tribunal, Kubilius v Kent Foods Ltd, found that a lorry driver was dismissed fairly for his refusal to wear a mask on a client’s premises.

Background to the Case

The backdrop to this case was that Mr Kubilius was employed as a lorry driver and much of his work consisted of making deliveries to and from the employer’s major client. In response to the COVID-19 pandemic, the client made it compulsory to wear face masks at their site, even for visitors. During a delivery, Mr Kubilius was repeatedly instructed to wear a face mask while he was inside the cab of his vehicle, but he refused to do so. The client subsequently banned Mr Kubilius from attending their site. Although wearing face masks was optional under government guidance at the time of the incident, the employer’s staff handbook required Mr Kubilius to treat clients with respect and consideration, safeguarding their own health and safety, and following strictly clients’ instruction regarding PPE. After an investigation and disciplinary hearing, the employer determined that, by refusing to wear a face mask, Mr Kubilius had deliberately refused to comply with health and safety instructions and his breach was compounded by a lack of remorse. It considered, even if the client lifted the site ban, the employer could not trust Mr Kubilius not to behave in the same way in the future and potentially endanger its business relationships with clients and others. The employer found Mr Kubilius had committed an act of gross misconduct and he was summarily dismissed.

Tribunal Decision

The tribunal found that the dismissal was fair. The employer had carried out a reasonable investigation and genuinely believed that Mr Kubilius was guilty of serious misconduct. Further, it acted reasonably in treating the misconduct as sufficient grounds for dismissal, taking into consideration the following circumstances:

• The importance of maintaining good relationships with clients;
• Mr Kubilius’s assertion that he had done nothing wrong, which raised concerns as to his future conduct; and
• The fact that Mr Kubilius could not continue much of his role because he was prohibited from the client’s site.

Although the tribunal noted that another employer might have given a warning, rather than dismissing him, they considered the dismissal fell within the range of reasonable responses.

Refusal to Wear a Mask & Knock-on Effects for Employers

This is the first case a tribunal has decided on whether refusing to wear face masks can amount to a fair ground of dismissal. Although not binding on other tribunals, this decision gives some guidelines as to how tribunals may handle dismissals due to refusals to wear face masks. However, this decision should not be taken as a thumbs up for employers to dismiss employees who refuse to wear face masks. Whether a refusal to wear a mask will be deemed a sufficient reason for dismissal will depend on the merits and particular circumstances of each case. Furthermore, as the lockdown and social restrictions ease, face mask refusals may carry different weight and impact. If you are a Wirehouse client and you are experiencing staff refusing to wear a face mask in the workplace, please do not hesitate to contact our client advice line. If you are not a client, but need advice and support with any workplace HR issues get in touch with our expert Employment Law team today.