- Mr Kubilius was employed as a lorry driver and made deliveries on behalf of his employer to major clients such as Tate and Lyle sugar refinery.
- Tate and Lyle made it compulsory to wear face masks at their sites, during the first Covid-19 lockdown, even for visitors. Mr Kubilius was asked to wear a face mask while inside the cab of his vehicle numerous times. Mr Kubilius refused and was banned from the site.
- He brought a claim for unfair dismissal against his employer.
- Judge ruled that the “decision to dismiss fell within the range of reasonable responses”.
Mr Kubilius was employed as a lorry driver for Kent Foods.
One of Kent Foods’ client, Tate and Lyle sugar refinery, made it compulsory to wear face masks at their site, even for visitors. Mr Kubilius was making a delivery to Tate and Lyle and was asked during the delivery on a number of occasions to wear a face mask while he was inside the cab of his vehicle. Mr Kubilius refused to do so, resulting in Tate and Lyle banning Mr Kubilius from its site.
Government guidance at the time the incident took place (May 2020) was that wearing facemasks were optional, not compulsory.
The employer’s staff handbook required Mr Kubilius to treat clients courteously, safeguard their own health and safety, and follow the client’s instructions regarding PPE.
Kent Foods conducted an investigation and disciplinary hearing into the incident which occurred. Kent Foods decided that, by Mr Kubilius refusing to wear a face mask, he had deliberately refused to comply with a health and safety allegation and that the breach was aggravated by his lack of remorse.
Kent Foods believed that even if the site ban had been lifted, they did not trust that Mr Kubilius would not act in the same way in the future, potentially endangering Kent Foods’ good relationship with other customers.
On 16th June 2020, it was found that Mr Kubilius had committed a serious gross misconduct offence and decided to summarily dismiss Mr Kubilius.
The Tribunal found that Mr Kubilius had been fairly dismissed. Kent Foods had followed a fair disciplinary process as Kent Foods had genuinely believed that Mr Kubilius was guilty and that his actions were serious. Kent Foods acted reasonably in treating the misconduct as a sufficient ground for dismissal for the following reasons:
- Mr Kubilius’ lack of remorse meant that Kent Foods did not trust that he would not act in the same way in the future.
- Importance in maintaining good relationships with clients.
- He had been banned from the Tate and Lyle site meaning he could not continue much of his role.
As a result, the dismissal fell within the range of reasonable responses and held that Mr Kubilius’ dismissal was fair.
Employers and employees should be aware of this decision and, although this case is not binding on other tribunals, the decision shows how tribunals may look at dismissals in the future where an employee has refused to wear a face mask.
Employers should not see this as an opportunity to dismiss any employee who refuses to wear a face mask, the decision as to whether it is reasonable to dismiss will be decided on a case-by-case basis.
Employers should always investigate the reason why an employee refuses to wear a mask, for example, an employee may have a disability which prevents them from wearing a mask.
If you dismiss an employee who is medically exempt from wearing a mask, not only would they potentially have an unfair dismissal claim, but also a disability discrimination claim.
For more guidance on the legalities of workplace PPE requirements or any other element of employment law, please get in touch with our team.