Mr Kubilius, a delivery driver, worked at Kent Foods Ltd’s Basildon depot where most of the work involved travel to and from a site of their major client, Tate & Lyle.
Kent Foods’ handbook required its employees to show courteous treatment towards clients and that employees take all reasonable steps to safeguard their own health and safety and that of others while at work. Their drivers’ handbook required customer instruction regarding the PPE to be followed. Due to the pandemic, Tate & Lyle required face masks to be worn on site, and all visitors were given a face mask.
In May 2020, despite being asked repeatedly by a Tate & Lyle employee to do so, Mr Kubilius refused to wear a face mask while in the cab of his vehicle. He was told that without one, droplets from his mouth were likely to land on peoples’ faces due to the elevated position in his cab, and that Tate & Lyle’s rules required him to wear a face mask until he left their site. Mr Kubilius refused, and so Tate & Lyle reported the incident to Kent Foods and banned Mr Kubilius from its site.
Kent Foods tried to persuade Tate & Lyle to allow Mr Kubilius back on site, but they refused, and Kent Foods was not able to redeploy him. Following an investigation, Mr Kubilius was summarily dismissed and he brought an unfair dismissal claim.
The tribunal concluded that Kent Foods had acted reasonably in all the circumstances in treating Mr Kubilius’ misconduct as a sufficient reason for dismissal. That said, the tribunal noted that another, equally reasonable employer might have concluded that the incident merited a warning rather than summary dismissal – but the issue it had to decide was whether Kent Foods’ decision fell within the range of reasonable responses.
This decision highlights how important it is for employers to have clear rules on health and safety and separately about the behaviour expected of employees in their relationships with clients, customers and suppliers. Unless an employee has a legitimate reason for not wearing a face mask, failure to wear one is likely to be a refusal to follow the employer’s reasonable instruction and therefore grounds for beginning a disciplinary process.
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