Last reviewed 5 March 2021

The Employment Tribunal (ET) in the case of Kubilius v Kent Foods Ltd has heard a coronavirus-related argument from the claimant, a Class 1 Driver, who believed that he was unfairly dismissed from his role for refusing to wear a facemask on a client’s site.

In summary, the ET held that the employer acted fairly in dismissing the claimant. This is because they followed a proper procedure before arriving at the “reasonable” conclusion of dismissal. This judgment may offer haulage businesses some insight into how to manage a similar situation.

Legislation for employers

Looking into what makes a dismissal fair, legislation stipulates that employers must show that their employee was dismissed for one of the following five permitted reasons:

  • capability

  • conduct

  • redundancy

  • statutory illegality

  • some other substantial reason (SOSR).

The burden of proof is on the employer to show that one of the five permitted reasons was the true reason for the dismissal.

This case focussed on the employee’s conduct. Conduct issues range from failure to follow lawful instructions to engaging in activities outside the workplace that damage the employment relationship. An organisation can dismiss in misconduct cases even if the reason does not amount to gross misconduct but is obliged to give notice and follow a procedure, including warnings, which is fair overall.

Background to the case

In March 2020, the UK entered its first lockdown as a result of the coronavirus pandemic. By May some restrictions were being lifted and scientific discussion had begun on whether the wearing of facemasks in public spaces could effectively reduce transmission of the virus. Wearing facemasks in certain settings became a lawful requirement in July 2020.

The claimant in this case was employed by the respondent, an organisation which transports food products from supplier to customer, as a Class 1 Driver.

In May 2020, the claimant was required to visit a client’s site and on the morning of his visit, the respondent received an email from the client notifying them that the claimant had refused to wear a facemask and was therefore banned from their site for noncompliance with their health and safety rules.

After being notified that he had been banned from the client’s site, the claimant denied wrongdoing, stating that he had stayed in his vehicle the entire time he was at the site and was therefore not required to keep his mask on — also citing government guidance at the time which stated that facemasks were ‘optional and not required by law, including in the workplace.’

The issue was investigated by the respondent, who also interviewed the claimant as part of the investigation. It was later found that the claimant had breached the terms in the employee handbook which states that its employees must be ‘courteous and pleasant to clients/suppliers at all times…’ and that ‘…rudeness or off-hand treatment of clients/suppliers will not be tolerated…’

In addition to this clause, the respondent also had a health and safety clause in their handbook which provides that employees should take all reasonable steps to ensure that their own health and safety is safeguarded, as well as that of any persons who may be affected by their actions at work. The driver’s handbook also stated that clients’ PPE requirements must be followed.

A disciplinary hearing followed and in June 2020, the claimant was dismissed, later bringing a claim of unfair dismissal to the ET.

What the Employment Tribunal said

The ET held that the dismissal had been fair, citing the organisation’s employee handbook which set out rules on their employee’s expected behaviour and the respondent’s genuine belief that the claimant had been guilty of misconduct after a thorough investigation into the issue. The client’s unwillingness to cooperate with the requirement to wear a mask, despite attempts from the respondent to rebuild the relationship between the client and the claimant, also worked in the organisation’s favour.

The ET further affirmed their decision by noting that it was clear that keeping a good relationship with their clients is of priority to the success of the respondent’s business and the claimant’s unwillingness to accept fault cast doubt on his future conduct. In all, the ET noted that although a different organisation in the same situation may have chosen to issue the claimant with a warning, the respondent’s decision to issue a dismissal was still a reasonable response.

What you can do

It is clear that the organisation’s disciplinary rules put them in a good position to achieve a fair dismissal, as well as having acted reasonably in the specific circumstance and carefully conducting an investigation before concluding on a dismissal.

Though this is not the first coronavirus related case to be heard by a tribunal since the start of the pandemic, it is likely to be followed by many more. It is crucial therefore that organisations treat coronavirus related cases the same as they would any other issue, not just when referring to misconduct but also other HR issues that may arise.

It is understandable that certain coronavirus issues may be unchartered territory for most employers but it is always best to apply existing rules as best as possible in these situations — (eg adopting a fair procedure when dismissing an employee) — or to seek advice where necessary.