Dismissal for refusing to wear a face-covering – fair or unfair?

Implementing Covid-19 related health and safety measures in the workplace has been an ongoing challenge for employers this year, as they balance new responsibilities alongside their existing obligations under employment and health and safety law.

With face-coverings now mandatory in many workplaces, either under the Coronavirus regulations or workplace health & safety policies, a key concern for employers is what disciplinary steps they can take against employees who refuse to wear one when required.

This question has now been considered by an English employment tribunal in the case of Kubilius v Kent Foods. The Claimant, a lorry driver, refused to wear a facemask when delivering goods to one of his employer’s clients, a sugar refinery. Kent Foods required the Claimant to follow any PPE instructions at client sites. The refinery had a rule that facemasks should be worn while on site and offered masks to drivers on arrival. Despite being twice asked to wear a facemask by the refinery’s staff, the Claimant refused. Although the Claimant did not leave his lorry, refinery staff were concerned that he had to open and pass documents through the cabin window. After his refusal, the Claimant was banned from the client’s site and Kent Foods began disciplinary proceedings which led to his dismissal for gross misconduct and then a claim for unfair dismissal.

The Tribunal accepted that the reason for the Claimant’s dismissal was “misconduct”. It then considered whether or not a fair procedure had been followed and was satisfied that Kent Foods had carried out a thorough investigation and followed their disciplinary procedure. The main question was whether the dismissal fell within the “band of reasonable responses”. In this case, deliveries to the sugar refinery constituted around 90% of the Claimant’s duties. He had refused to apologise and remained banned from the client site. There were no alternative duties for the Claimant. Taking these factors into account, the Tribunal held that the decision to dismiss was a reasonable response and dismissed the Claimant’s claim.

This case will be of reassurance to employers as the employment tribunal reached its decision by applying existing employment law principles to the unique issues presented by the Coronavirus pandemic. While not binding in Northern Ireland, this decision would be a persuasive authority for our Industrial Tribunal.

Where an employee refuses to wear a face-covering, employers can refer to their usual policies and procedures dealing with health & safety and disciplinary matters. Refusing to wear PPE or obey client site rules when required, are well established forms of “misconduct”. Employers should still follow their usual disciplinary procedure, fulfilling the statutory disciplinary and dismissal procedure, and give careful consideration to the most appropriate disciplinary sanction in the circumstances, which may include dismissal. Where a client is involved, employers may consider other factors including reputational impact, disruption to business and, as in this case, whether the employee can be reassigned.

However, each case will turn on its own facts, and employers should be mindful that some employees may be exempt from requirements on face-coverings, or may refuse to wear one, due to a disability. This will engage employers’ usual duty to consider reasonable adjustments. These are likely to include considering alternative PPE, workstation adjustments, working from home etc., which allow the employee to keep working while ensuring the safety of others.

Employees should identify their disability and why it prevents them from wearing a face-covering. Occupational health assessment may be necessary to fully understand what is required in an employee’s particular circumstances.

Aside from disability, it is difficult to see what other valid grounds an employee could refuse to wear a face-covering on. It is unlikely that an employee could refuse based on holding “anti-mask” or “anti-lockdown” views. However, employers should consider all matters on their individual circumstances and take advice if needed before beginning disciplinary action.

Please contact Jack jack.balmer@tughans.com or your usual Tughans contact, who can refer you to the employment team.

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.