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Dismissal for refusing to wear a face mask at work: fair or unfair?

Senior Associate Solicitor, Jane Sinnamon

Given the number of employment law issues that the COVID-19 pandemic has presented, we knew it would not be long before test cases relating to issues, such as failures to comply with COVID-related health and safety measures, made their way to the employment tribunal for consideration. In the case of Kubilius v Kent Foods Ltd, the Employment Tribunal considered whether an employer was entitled to dismiss an employee fairly where they refused to wear a face mask.

Background

The Claimant was employed as a delivery driver by Kent Foods (“the Respondent”). The majority of the Claimant’s work involved travel to and from the Thames refinery site of Tate and Lyle (the Respondent’s client). In response to the COVID-19 pandemic, Tate had introduced a policy that face masks should always be worn at its site by all staff, including those visiting the site.

On 21st of May 2020, the Claimant visited the Thames refinery site. The Claimant was asked repeatedly to put his mask on by one of the Tate managers, which he refused to do on the basis that he was in his vehicle at the time and that he did not have to. Tate decided to ban the Claimant from attending their site as a result of his non-compliance with their policy.

Following an investigation into this incident, during which the Claimant did not dispute the allegations made about him, save as for some minor details, the Respondent decided to dismiss the Claimant. The Claimant then brought a claim of unfair dismissal to the Employment Tribunal (“ET”).

The law

The test for assessing fairness in an unfair dismissal claim is set out by section 94 of the Employment Rights Act 1996 and provides that in determining whether the dismissal is fair, this depends on whether in the circumstances (including the size and administrative resources of the employer) the employer acted reasonably or unreasonably in treating the reason as a sufficient reason for dismissing the employee. A Tribunal will also make its decision in accordance with equity and the substantial merits of the case. Broadly, this is broken down into ‘substantive’ and ‘procedural fairness’, i.e. Did the sanction fall within the range of reasonable responses that was open to an employer in those circumstances and was a fair procedure followed?

In particular, in misconduct cases it must also be demonstrated by an employer that they had a reasonable belief that the alleged misconduct had occurred, that there existed reasonable grounds for that belief and the employer had carried out such investigations into the misconduct allegations as was reasonable in the circumstances.

Decision

The ET dismissed the claim, finding that the Claimant’s dismissal was fair. The ET found that the Respondent had a genuine belief that the Claimant had committed an act of misconduct, which was preceded by a reasonable investigation into the facts. The Respondent had then acted reasonably by treating the misconduct as a reason for dismissal and it was relevant that the Respondent needed to protect its reputation with its clients, which in this case was Tate. Although the Respondent did not necessarily have to choose dismissal as a sanction, it fell within the “range of reasonable responses” open to them.

Comment

Although this decision is only at ET level, this is a useful case to demonstrate how any future Tribunal may consider COVID-related employment issues. Employers should take comfort from this decision, given that the employer’s decision to dismiss here was fair on the basis that the employee had refused to follow health and safety procedures which were introduced in response to the COVID-19 pandemic and because he had acted in a way which potentially could damage the relationship between the employer and its clients.

However, it is worth noting that this does not necessarily mean that dismissal is always a fair sanction where employees have failed to follow COVID-secure health and safety measures, and each case will turn on its own facts.

Not only is this case a textbook example of a typical misconduct dismissal, but it also incorporates new challenges faced by employers in a COVID world. For those who would like training on conducting disciplinary and grievance processes, and on issues such as those raised in this case, we are running a webinar titled “Dealing with Disputes”, which will cover issues such as these. The event will take place at 10am – 12 noon on Thursday, the 25th of March 2021. The link to register for this event is here.

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