Fairness of dismissal for breach of Covid-19 requirements

15th March 2021

Fairness of dismissal for breach of Covid-19 requirements

The Covid-19 pandemic has raised various challenges for employers, not least having to contend with health and safety risks to staff and customers.

Most employers have introduced requirements for staff and customers to wear face coverings/masks and rules around social distancing. Whilst the vast majority of employees are happy to comply, there is, as they say, always one!

An Employment Tribunal was recently asked to consider whether it was fair for an employer to dismiss an employee that refused to wear a face-covering at work, contrary to his employer’s requirements.

In Kubilius v Kent Foods, the employee was employed as a delivery driver. He was required to travel to and from the sugar producer, Tate & Lyle’s Thames refinery. The staff handbook stated that employees were required to be considerate with clients and to take all reasonable steps to prevent risk of harm to their own health and those that they worked with.

A separate drivers’ handbook stated that employees must comply with customer rules on use of Personal Protective Equipment. Tate & Lyle required that any visitors to their site wear face masks for the duration of their visit, including when in their vehicles.

The employee refused to wear a face covering while in his own delivery vehicle. He was informed that it was a Tate rule that he wear a face covering at all times and that it was necessary to wear one whilst in his raised cab in order to avoid droplets falling from his mouth onto people standing on the ground below him whilst he spoke with them.

He refused to comply, stating that the cab was his own space and there was no legal requirement for him to wear a mask. Tate & Lyle banned him from the site and informed the employer what had happened. The employee was dismissed for breach of both Kent Food’s and Tate & Lyle’s rules.

The employee claimed that his dismissal was unfair, but the Employment Tribunal rejected his claim.  It said that Kent Foods had carried out a reasonable investigation into the incident and had formed a reasonable belief that misconduct had occurred. Given that the employee repeatedly refused to accept that he had done anything wrong, it was reasonable for Kent Foods to be concerned about how he would behave in the future, and to take into consideration the importance of maintaining a good relationship with Tate & Lyle.

Furthermore, as the majority of the employee’s work involved travel to and from the refinery, his ban from the site presented practical difficulties. The Employment Tribunal therefore held that the decision to dismiss was within the band of reasonable responses, notwithstanding that another employer might reasonably have issued a written warning instead.

Although not binding on other employment tribunals, this common-sense decision will nevertheless be a relief for employers. The employee in this case was unable to provide any genuine justification for refusing to comply with Tate & Lyle’s requirements; he showed no remorse for his actions; and clearly had little regard for either the health and safety of those he came into contact with in his work or the impact of his behaviour on Kent Food’s reputation.

For more information on unfair dismissal and/or the impact of Covid-19, please contact Marie Allen on 01473 298133 or [email protected].

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