There has been a lot of discussion around to what extent safety measures can be imposed on employees to ensure a safe work environment for other employees and customers. In the first case of its kind, we have the decision on an employer’s scope to enforce wearing PPE in the workplace, and an indication of how future cases of this kind may be decided.
It can be very costly to bring or defend an unfair dismissal claim. Obtaining legal advice early on in a matter can help you weigh up the merits of pursuing or defending such claims.
The recent case of Kubilius v Kent Foods Ltd involved a lorry driver delivering to a Tate & Lyle sugar refinery in May 2020, who committed a single act of misconduct by refusing to wear a face mask in the cabin of his lorry while undertaking his work duties.
The refinery had a rule that masks must be worn on site, and visitors were handed masks on entry at the gatehouse. In response to the Covid-19 pandemic, Kent Foods updated their employee handbook that drivers must comply with the PPE instructions at customers’ sites. Tate & Lyle were a major customer of Kent Foods and, two weeks after the first national lockdown, Tate & Lyle insisted that face masks must be worn at their sites.
Tate & Lyle staff were concerned that although the driver, Mr Kubilius, was in his lorry, the window was open and staff would be handing paperwork to him. Despite being asked to wear a mask twice by two different on-site managers, the driver refused. His defence included that government guidelines stated that it wasn’t compulsory to wear masks at work. It was not against the law not to wear a mask and he described the lorry as his home.
Tate & Lyle banned the driver from its site, and he faced disciplinary proceedings from Kent Foods. An investigation was launched by Kent Foods into the actions of their employee, and it was found that he had committed an act of gross misconduct by failing to comply with the instruction to wear PPE on the client site. He was dismissed for gross misconduct as a result. Mr Kubilius then issued a claim of unfair dismissal.
The Employment Tribunal did not uphold Mr Kubilius’ claim. The Tribunal recognised that the decision to dismiss the Claimant was due to his failure to comply with an instruction set out in the handbook. The Tribunal found the employer had acted reasonably in their investigations and, whilst some employers may have decided to issue a warning, it decided that dismissal was within the range of reasonable responses and was therefore fair.
In reaching its decision, the Tribunal considered a number of factors including the importance of the client relationship to the employer. Around 90% of the employer’s work came from Tate & Lyle and it was therefore important to ensure the relationship was maintained. The fact the Claimant was banned from their site also caused issues in relation to the work that he would be able to carry out.
When determining whether or not there has been an unfair dismissal, the crucial test is whether a dismissal falls within a “band of reasonable responses”. This means that if one employer were to dismiss where another employer would give a warning, the dismissal will only be unfair if no reasonable employer would dismiss. It doesn’t make a dismissal unfair if the employee would not have been dismissed by another in similar circumstances.
During the Covid-19 pandemic, many employers will face a similar dilemma with employees refusing to wear PPE or following new regulations which could necessitate disciplinary action. Whilst this judgment is not binding, it indicates how Tribunals may decide future cases. As always, employers should carefully consider all the circumstances and follow a fair process when considering dismissal.
This case demonstrates if employers wish to take enforcement action against employees in similar situations it is important to clearly communicate new rules on the wearing of PPE in the workplace and to consider the impact of any refusal to follow those rules on client relations.
Lodders’ team of employment solicitors offer accurate, focused, and solution-based legal advice to a wide range of clients. We have forged an excellent reputation for advising SMEs, publicly owned companies, charities, and other bodies, as well as all levels of employees in respect of all manner of employment law-related issues.
If you need any advice on an unfair dismissal claim or any other employment-related matter, please contact our Employment team.Contact us
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