Can we dismiss an employee for refusing to wear a face covering?

In the first case that we are aware of on this issue, an Employment Tribunal has found that dismissal of an employee for refusing to wear a face covering was fair.

Mr K was employed as a driver for the employer, a distribution company transporting food products from suppliers to customers. The employer’s handbook stated that its drivers must comply with PPE instructions applied on its customers’ own sites. One of the employer’s main customers, T&L, took the decision that face masks should always be work at its site by all staff as a safety precaution to reduce the risk of coronavirus infection.

Mr K attended T&L’s site and refused when asked to put on a face mask while he was in his vehicle. He was told that without one, droplets from his mouth were going to land on peoples’ faces due to his elevated position in his cab and that T&L’s rules required him to wear a face mask until he left its site. He again refused, saying he was in his cab and was not legally required to. T&L then banned him from their site on the grounds of non-compliance with H&S rules. The employer carried out an investigation, during which Mr K told the employer that he did not have to wear a mask as it was not the law. At the time, Government guidance stated that wearing a face covering was optional and not required by law including in the workplace. He stated that he had no issue wearing the mask in the open but would not wear it in his cab.

Mr K was suspended pending a disciplinary process in relation to an allegation of misconduct, namely a failure to follow a H&S instruction from staff on a supplier’s premises. Following a disciplinary hearing, Mr K was summarily dismissed for gross misconduct.

Mr K issued a claim in the Employment Tribunal for unfair dismissal. The ET found that the reason for dismissal was misconduct, due to his refusal to comply with an instruction to wear PPE on a client site. It found that overall, the employer’s procedure was fair. It took into account the importance to the employer of maintaining good relationships with customers and suppliers; Mr K’s continued insistence that he had done nothing wrong; and the fact that it was not feasible for Mr K to continue in his role due to the T&L ban and found that the decision to dismiss fell within the range of reasonable responses. The dismissal was therefore fair.

Comment

Employers have a duty to take reasonable care of the health and safety of their employees and provide a safe workplace. As part of complying with that duty, employers should continue to keep up to date with government guidance on working safely during Coronavirus. This includes guidance on face coverings for particular types of workplace. This guidance will be a relevant and important part of the employer’s H&S risk assessment. Any legal requirement for employees to wear face coverings in certain circumstances (unless they are exempt or have a reasonable excuse) will also be relevant.

Where an employer has imposed a requirement to wear face coverings as a result of legal requirements or a H&S risk assessment, refusal by an employee could be considered misconduct due to a failure to comply with a reasonable management instruction. This could, in some circumstances, lead to disciplinary action and ultimately dismissal.

However, it is important to note that all cases are fact specific, and this case is not authority for the principle that all cases involving a refusal to wear a face covering will be gross misconduct, or that a dismissal for that reason will always be fair. In this case, the ET found that the dismissal fell within the range of reasonable responses open to the employer. However, it also noted “a reasonable employer might have concluded that this instance of misconduct merited a warning rather than summary dismissal.”

Dismissal for refusal to wear a face covering could in some circumstances lead to a successful unfair dismissal claim. In addition, where the reason for refusal arises out of a disability, disciplinary action or dismissal could amount to unlawful discrimination unless it could be objectively justified. Employers should therefore always consider all the facts and circumstances in the particular case. It is worth bearing in mind that this case is an ET level judgment and is therefore not binding on other Tribunals.

If an employer intends to require employees to wear face coverings, factors to consider include:

Communicating the policy with employees, and ensuring that this is clear and well publicised.
Ensuring that any policy includes exemptions where necessary.
Ensuring that employees are aware of the potential outcome in the event of a breach of the policy.
Listening to any concerns raised by employees about a requirement to wear a face covering. For example, taking into account concerns on medical grounds; and consideration of reasonable adjustments if necessary for employees with a disability.
Providing employees with face coverings and guidance on how to use them safely. Government guidance sets out examples of what information should be communicated to employees on this point.
Keeping the policy under review, with input from the H&S department or advisers, and updating it where necessary.

Kubilius v Kent Foods Ltd

26 March 2021

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