305: Employment Tribunal considers whether dismissal of delivery driver for refusing to wear a mask was fair

In today’s blog we look at the decision of Kubilius v Kent Foods Ltd, where an Employment Tribunal considered whether a delivery driver was fairly dismissed for refusing to wear a facemask when visiting a client’s site.

Mr Kubilius worked for Kent Foods Ltd, a food distribution company. He was based at the company’s Basildon depot and around 90% of his driving work consisted of journeys to and from Tate & Lyle’s Thames refinery site. The company’s employee handbook stressed the importance of maintaining good relationships with clients and suppliers and stated that employees should be courteous and pleasant at all times. The handbook also required staff to safeguard the health and safety of themselves and others and to follow customers’ instructions with regards to PPE.

At the beginning of the pandemic, Tate & Lyle introduced a requirement that face masks be worn at its refinery site and all visitors were issued with a mask on arrival. In May 2020, Mr Kubilius visited the site and refused to wear a mask so as to prevent the spread of virus when speaking out of his cab window. He argued that his vehicle was his ‘home’, and that he was not legally required to wear a mask. Tate & Lyle banned him from its site for non-compliance with health and safety rules. Following an investigation and disciplinary hearing, Mr Kubilius was summarily dismissed by Kent Foods for breaching its requirements to maintain good relationships with clients and to co-operate to ensure a safe working environment. Mr Kubilius brought a claim for unfair dismissal.

An Employment Tribunal held that the delivery driver was fairly dismissed for refusing to wear a facemask when visiting the client’s site. Kent Foods had a genuine belief that he was guilty of misconduct and had carried out a reasonable investigation. Whilst some employers might have decided to issue a warning, the company had also acted reasonably in treating his misconduct as a sufficient reason for dismissal. Key factors included the company’s emphasis on maintaining good relationships with its clients; Mr Kubilius’ continued insistence that he had done nothing wrong; and the practical difficulties arising from being banned from Tate & Lyle’s site which meant that he could not continue in his contractual role. It was also clear that the company might have considered a final written warning as an alternative to dismissal if Tate & Lyle had been willing to rescind its ban.

As this case demonstrates, although dismissal was still within the band of reasonable responses open to Kent Foods in the circumstances of this case, employers should bear in mind that refusing to wear a mask will not always amount to gross misconduct. This case also highlights the importance of ensuring that all staff are aware of company and client policies on the wearing of PPE and the consequences of failing to comply with those policies. As a Tribunal decision, this judgment is not binding but no doubt there will be further cases looking at pandemic-related health and safety issues, including the scope to enforce the wearing of PPE.