Tribunal finds dismissal for failure to wear mask was not unfair (Kubilius v Kent Foods)

In an unfair dismissal claim, which provides an example relating to PPE use during the pandemic, an employment tribunal has found that the dismissal of a lorry driver, for failure to comply with a customer’s request to wear a face mask, was within the range of reasonable responses open to the employer, and thus not unfair.

Kubilius v Kent Foods (Case Number: 3201960/2020)

An employment tribunal, hearing an ordinary unfair dismissal case, has upheld as not unfair an employer’s dismissal of an employee for failure to wear a face mask.

The claimant was employed by the respondent as a lorry driver. The respondent is a distribution company which transports food products from suppliers to customers. One of its major clients is the sugar company Tate & Lyle. Approximately 90% of the driving work done from the site where the claimant worked involves driving to and from Tate & Lyle’s Thames Refinery site.

The respondent’s drivers’ handbook stated that ‘customer instruction regarding PPE requirement must be followed’.

Tate & Lyle had a rule that face masks should always be worn at its Thames Refinery site by all staff. All visitors to the site were issued with face masks at the gatehouse.

An incident occurred in which the claimant visited the Tate & Lyle site in his lorry. Tate & Lyle staff repeatedly asked the claimant, who was sitting in the cab of his lorry at all times, to put on a mask. He refused, saying he was in his cab and that he did not have to. As a consequence, the claimant was banned from Tate & Lyle’s site on the grounds of non-compliance with health and safety rules. Tate & Lyle reported the matter to the respondent.

The claimant showed no remorse for what had occurred subsequently, even during the disciplinary procedure that the respondent carried out as a consequence.

At the conclusion of that disciplinary procedure, the respondent came to the conclusion that the claimant should be summarily dismissed. It concluded that the claimant’s conduct amounted to misconduct meriting a severe sanction, and that this was aggravated by the claimant’s lack of remorse in the disciplinary hearing.

Unsurprisingly, the employment tribunal concluded that, under ERA 1996, s 98(1)-(2), the respondent had a potentially fair reason for dismissal, namely conduct.

The legal interest in this case lies rather with the tribunal’s conclusion that the dismissal was not unfair, under section 98(4). The tribunal concluded in law that the employer had acted reasonably in treating the misconduct in question ‘as a sufficient reason for dismissing the employee’.

In reaching that conclusion, the tribunal took the following into account:

• the misconduct concerned a single incident of refusing to comply with a PPE instruction at a client site
• it was accepted that the claimant was not informed of the requirement to wear a face mask until he arrived at the Tate & Lyle site that day
• a reasonable employer might have concluded that this instance of misconduct merited a warning rather than summary dismissal. However, the question is not what another employer might have done but whether the respondent’s decision fell within the range of reasonable responses
• the respondent was entitled to take into account the importance to the respondent’s business of maintaining good relationships with its suppliers and customers
• the claimant’s continued insistence that he had done nothing wrong caused the respondent reasonably to lose confidence in the claimant’s future conduct
• a further relevant factor was that it was not feasible for the claimant to continue in his contractual role due to the Tate & Lyle site ban, which was imposed as a consequence of the claimant’s conduct in the incident

In considering this judgment, it is important to bear in mind:

• that an employment tribunal judgment has no precedent value for any future cases, and
• that the tribunal here, in any event, decided no more than that dismissal, on the facts of the case, was within the range of reasonable responses open to the employer, and thus that the dismissal was not unfair. It follows that this decision is in no sense conveying that dismissal was the only reasonable response to the situation; other employers faced with the same situation might reasonably have decided differently, e.g., by imposing a sanction short of dismissal

Case details

• Court: Employment Tribunal (East London)
• Judge: Employment Judge Barrett
• Reserved judgment dated: 10 February 2021

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