A new dress code?
We explore a case concerning whether employers can dismiss employees for not wearing PPE.
Having been in lockdown for just over a year, many employers have adopted COVID-19 safety regulations to allow for their employees to return to work. One of these regulations may include wearing a mask, particularly if the nature of work requires contact with other people. The recent case of Deimantas Kubilius v Kent Foods Limited considers whether employers should be able to dismiss employees on the basis of their refusal to wear a mask.
Facts of the case
A delivery driver was summarily dismissed on the basis he refused to wear a face mask while making a delivery to a supplier. A large portion of the employer’s deliveries required drivers to travel to and from one particular site. This site had implemented a mandatory rule that anyone attending the site had to wear a face mask and visitors were provided face masks upon arrival although they did not update their written rules as the introduction of mandatory masks was more of a temporary measure and mostly for the purposes of the pandemic.
The employer was later informed that the driver had been banned from the supplier’s site as he had been asked repeatedly to put a mask on and he refused to do so. The driver’s defence was that he only stayed in the cab of his lorry and never left. The site’s written instructions also did not refer to face masks and he also argued that guidance from the government website stipulated wearing masks in the workplace was optional.
The employer tried to convince the site to overturn their ban but the site stood firm on their decision. A disciplinary hearing was held and it was evident the driver demonstrated no remorse for his actions. Even if he had done so, the employer was concerned the driver would act similarly at other sites and damage relationships between the employer and its clients. The driver was therefore dismissed because the site ban materially affected his ability to carry out his job as 90% of the deliveries were to this site. The employment tribunal held that the employee had not been unfairly dismissed.
Ensuring compliance with a company’s health and safety policies is an important part of keeping its staff and third parties safe. This case supports employers taking a robust stance on the matter. However it is important to note that this case is at Tribunal level and therefore does not set a precedent and also that the specific circumstances of this case meant there was clear evidence the site ban resulted in the driver being unable to carry out a substantial part of his job as well as an ongoing risk he could continue to damage the employer’s relationship with its clients. The driver’s reason for dismissal was therefore not directly linked to his refusal to wear a mask. It will be important for an employer to understand fully the basis for an employee’s refusal to wear PPE and carefully consider whether there are any alternative options prior to deciding whether dismissal is justifiable. Should you require advice on how best to deal with a similar situation, our employment team are at hand to assist with any enquiries.