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Written by Brabners LLP
Some individuals are exempt from wearing a face covering because of a medical condition; others might prefer not to wear one for other reasons. However, unless an exemption applies, face coverings are currently mandatory in most public, indoor spaces such as shops, places of worship, post offices and banks.
As for the workplace, staff working in pubs, restaurants and some other public venues must wear a face mask unless their employer has put steps in place to create a physical barrier between workers and members of the public. As for other workplaces, face coverings are not compulsory but employers should assess the use of face coverings on a case-by-case basis depending on the workplace environment, other appropriate mitigations they have put in place, and whether exemptions or reasonable excuses apply.
But what if an employer or client deems it necessary for staff to wear face coverings and an employee refuses? If that employee is dismissed, would this be considered fair?
Employers will be comforted by a recent Employment Tribunal case on this very subject, in which the dismissal of the employee was found to be fair. However, bear in mind that each case will ultimately be decided on its individual facts and merits.
Mr Kubilius was employed as a delivery driver by Kent Foods Ltd (“Kent”). Kent’s employee handbook expressly required employees to take all reasonable steps to safeguard their own health and safety and that of others whilst at work. Staff undertaking delivery driving roles (as Mr Kubilius was) were also required to adhere to individual customer instructions regarding the use of PPE.
On 21 May 2020, Mr Kubilius travelled to the Thames refinery site of sugar company Tate and Lyle. In light of the COVID-19 pandemic, Tate & Lyle stipulated that all visitors to the site had to wear face masks and provided them with masks upon arrival. Mr Kubilius arrived at the site and was handed a mask, but despite being asked repeatedly by a Tate & Lyle manager to wear a mask, he refused to do so whilst in the cab of his vehicle (although he did wear a mask at all times when outside of his cab). Tate & Lyle’s manager explained that with no mask on, the droplets coming from Mr Kubilius’s mouth as he spoke would land on people’s faces due to his elevated position up in the cab and that the site rules were that he needed to keep his mask on until he left the site. Mr Kubilius still refused, arguing that his cab was his own private area and that wearing a face mask was not a legal requirement.
Tate & Lyle subsequently reported this incident to Kent and banned Mr Kubilius from returning to their site. Consequently, Kent initiated an investigation into the incident.
Mr Kubilius was invited to a disciplinary hearing and it was decided that his refusal to comply with Tate & Lyle’s instruction to wear a face mask amounted to a breach of the requirements in the Employee Handbook to maintain good relationships with customers and suppliers and to cooperate to ensure a safe working environment. The decision was taken to dismiss Mr Kubilius for gross misconduct.
The Employment Tribunal found that the dismissal was fair in the circumstances. The Tribunal concluded that the decision to dismiss Mr Kubilius was a reasonable one, although it was noted that another employer may have chosen a lesser sanction (issuing a warning, for example). The importance of maintaining good relationships with Kent’s clients was of great significance and Kent were entitled to take this into account in reaching their decision to dismiss him.
Another important factor in the decision was Mr Kubilius’s failure to appreciate the difficulties that had arisen as a result of him being banned from Tate’s site and his continued insistence that he had done nothing wrong. This, in particular, indicated that his future conduct may also be problematic and Kent was also entitled to rely on the likelihood of repeated issues arising in the future as grounds for dismissing Mr Kubilius.
As ever, the question of whether a dismissal is fair or not depends on the reasonableness of the employer’s investigation, decision and sanction. It is important to remember, therefore, that this isn’t a case that simply answers the broad question: “Can my employer force me to wear a mask?”.
It seems inevitable that there will be further claims from employees seeking to challenge the mandatory use of face masks and PPE, or ‘no jab no job’ policies. Such cases may pose even trickier questions about equality, underlying disabilities, religion or belief. As ever, these issues must be borne in mind by employers when dealing with any employees who refuse to adhere to any PPE policies, and such cases should be handled sensitively.
With the rules and guidance in relation to Covid protocol continually developing from an employment perspective, umbrella companies should make it clear to their employees that in addition to adhering to the umbrella company’s own policies and procedures, whilst on assignment employees will need to adhere to certain requirements of the client too, in particular in relation to health and safety. This case serves as a warning that clients may simply terminate an assignment in circumstances where the employee’s refusal to wear a face mask may result in the employee being limited in their ability to carry out their job, or where business relations could be harmed as a result of the employee’s refusal.
In such circumstances, the ultimate responsibility is on the umbrella company to take whatever disciplinary action it deems necessary, up to and including dismissal. Clearly, from a commercial perspective, the termination by a client of an assignment due to an employee’s refusal to wear a mask may negatively impact the relationship between the umbrella company, agency and/or client, so making sure that employees are aware of mandatory policies and protocols is key.
Whilst much remains uncertain, the UK nearing the end of its third lockdown will mean that more employees will be returning to the site as opposed to working from home. As such, there will be growing health and safety concerns to manage and it is, therefore, essential that umbrella companies remain up to date with the latest guidance to facilitate a safe return to work.
This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership.