September 26, 2021

Volume XI, Number 269

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September 23, 2021

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“Fair Dismissal for Not Wearing Face-Mask” Headlines Hide Full Story (UK)

It’s not natural for our freedoms and permissions to be limited in the way they have been since last March, so whatever one’s own views, it is hardly surprising that some have found those restrictions hard to swallow and have railed against COVID-19 related rules, state imposed or otherwise. The requirement to wear masks in certain spaces has been the cause of particular resentment for some and so the conflict between those views and the requirements of employers was an inevitable one. The Employment Tribunal’s recent decision in Kubilius v Kent Foods Ltd is entirely unremarkable on the law but notable for its appearing to be the first reported judgment where the employee’s refusal to wear a facemask led to his dismissal.

Mr Kubilius was a lorry driver for Kent Foods Ltd based at its Basildon site. Kent Foods transports food products from suppliers to customers. Its business depends upon maintaining amicable relationships with both and its policies and procedures expressly require its employees to be courteous and pleasant at all times. A specific Driver’s Handbook prepared before the outbreak of COVID-19 (and making no reference to it at the time these events took place) also requires that employees comply with clients’ PPE requirements (in the transport of foodstuffs, an issue which well pre-dated the virus).

Tate & Lyle is a major client of Kent Foods, to the extent of approximately 90% of the driving work done by Kent Foods’ Basildon site being driving to and from T&L’s sugar refinery. On arrival on one such trip (not his first there) Mr Kubilius was handed a mask by T&L’s gate staff and directed to his parking bay inside the refinery. Whilst in his cab with his window open, Mr Kubilius did not wear the mask and continued to refuse to do so when requested by two Tate & Lyle employees, one quite senior. He said (correctly, strictly) that coronavirus legislation/guidance did not compel the wearing of masks and that on past visits to T&L he had not been required to wear PPE whilst in his own cab.

Ultimately, these events led to Tate & Lyle banning Mr Kubilius from their site. Kent Foods sought to persuade them to reverse it. Having failed in that, it started a disciplinary process leading to Mr Kubilius’ employment being terminated for gross misconduct and/or some other substantial reason on the basis that his ban meant he could not perform the work principally required of him, lorry driving to and from T&L. The Employment Tribunal decided as a matter of fact that the main reason for Mr Kubilius’ dismissal was conduct but that the implications which that had on the work left available for him to perform was relevant to whether dismissal was an appropriate sanction.

It did not concern the Tribunal that Mr Kubilius had not been instructed to wear his facemask within his own cab until he had parked up nor that the Driver’s Handbook had not been updated and only required that PPE be worn whilst outside his vehicle. That was superseded when Mr Kubilius was twice specifically asked to wear his mask in his cab on the grounds that this was for the protection of other people in Tate & Lyle’s refinery. His refusal was a clear breach of the Driver’s Handbook obligation to comply with PPE instructions at a client site. The Employment Tribunal also considered that Kent Foods was entitled to take into account the importance of maintaining good relationships with its suppliers and customers, especially one so fundamental to its business, and so the persistent refusal by Mr Kubilius to do as he was asked and the way he began to film the T&L employees engaging with him were obvious failures by him to conduct himself appropriately. Furthermore, during the disciplinary process, Mr Kubilius had come out fighting – the T&L employees had themselves been in breach of health and safety rules, he said, and their asking him to wear the mask in his cab was “restricting his human rights”. His continued insistence that he had done nothing wrong had reasonably led the dismissing officer to lose confidence in Mr Kubilius’ future conduct being any better. This also influenced the decision as to whether dismissal was ultimately a sanction within the band of reasonable responses, which the ET found that it clearly was.

Legally this decision is far from ground-breaking. Employee refuses to comply with key requirements of  job plus no obvious understanding or regret equals potential gross misconduct and dismissal is a fairly vanilla equation.

The obvious question for employers is whether this decision means that you can require that facemasks be worn in your workplace and discipline your employees for failing or refusing to do so? Note firstly that Kubilius v Kent Foods does not talk directly to this point. It was Tate & Lyle as client which imposed the requirement that facemasks be worn, not Kent Foods as employer. Equally, the decision of an Employment Tribunal is not binding on other Courts and/or Tribunals and is instead only persuasive.

Nevertheless, in short then we think the answer is likely to be yes, at least for now. It is neither new nor novel for employers to expect more from their employees than the minimum levels of compliance required by law (though see below). There may of be instances where employees have genuine medical reasons for refusing to wear a mask meaning disciplinary action should be approached with caution to avoid disability discrimination risks. Our prediction is nevertheless that this decision will frequently cited by employers to rebut allegations by employees that their dismissals were unreasonable because any COVID-19 related requirement which they failed to comply with exceeded the base level required by the state and/or was not imposed by their employer. For a number of reasons, this reliance may have its risks – as with all others, the case is dependent on its own facts and some here may not apply every time:

  1. Kubilius was not dismissed for the act of disobeying T&L’s instruction to wear a mask. He was dismissed because that led to the site ban and that led to his not having any other work he could do. If there had been other sites he could drive to, Kent Foods would have had to redeploy him to that client instead.

  2. Kent Foods took steps to overturn that ban. It did not just accept it as fact. In almost any case where a client bans one of your employees and that puts his job at risk, this is a sensible move.

  3. your employee Is not normally obliged to follow the instructions of a client but where it is health & safety related and where his contract says so and where he has no very good reason not to do so (especially this one) and where he reacts aggressively, you are still entitled to use that as the basis for disciplinary action because of its inevitable impact on client relations.

  4. the key argument relied on by Kubilius, that the precaution of wearing a mask in his cab went beyond the law because the official guidance didn’t compel it, is actually a dud anyway. The legal obligation is to take steps to reduce the risk of airborne transmission of the virus to  its lowest practicable level. The guidance is not a comprehensive description of how an employer might do that. If there is more that an employer could do and it doesn’t, it can still be in breach of its own legal obligations. Here T&L considered that an unmasked driver leaning out of his articulated lorry window to talk to someone standing by the door would effectively be raining droplets down on him and so it was obliged to take steps to protect its staff from that.

To a lesser extent we also expect Kubilius to be a useful citation in cases where employers’ written policies and procedures are not updated or added to by specific COVID-19 related provisions. That’s a relatable predicament and many employers will have struggled to keep their paperwork up to date with the pace of developments particularly during the earlier months of the COVID-19 outbreak. An obvious tactic from claimant lawyers will be seeking to hold employers to their outdated policies which did not envisage such an extreme situation, extrapolate an assertion that the employer’s actions were therefore in breach of its own policies and so unfair. The ET here was entirely unfazed by this issue in its decision and placed the focus will be firmly on what specific instructions were given to employees as a matter of fact and whether they were reasonable in all the circumstances, almost regardless of what the written policies may have said. In doing so, perhaps the most valuable point underscored here is that the pandemic has done nothing to displace ordinary principles of employment law.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 89
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About this Author

Sean Field-Walton Labour & Employment Attorney Squire Patton Boggs London, UK
Associate

Sean Field-Walton is an associate in our Labour & Employment Practice Group.

Sean advises on all areas of contentious and non-contentious employment law. This includes advising buyers, sellers and funders on the employment aspects of M&A transactions, negotiating post-termination restrictions, reviewing and preparing staff (including board-level) contracts and managing disciplinary and grievance matters.

He has particular experience defending clients against all manner of employment tribunal claims. This has recently been focused in the transport and retail sectors....

44 20-7655-1341
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