Dismissal for not Wearing a Face Mask was Fair
The first of what is sure to be a perplexing raft of litigation about face masks has landed.
Mr. Kubilius was a lorry driver for Kent Foods (KF). KF’s biggest customer was Tate & Lyle (accounting for roughly 90% of its work). KF’s employee handbook stated that all customer requests regarding PPE must be complied with.
In May 2020, Tate & Lyle (TL) decided to make face masks mandatory at one of its sites, and all visitors were issued with one on arrival. The Claimant refused to wear one whilst inside his lorry but was perfectly happy to wear one outside.
Management reportedly became concerned that he may spread the virus and therefore banned him from the site. This prompted investigation by the Respondent, concluding that the Claimant was in breach of its PPE policy and proper interaction with clients/ suppliers.
The Claimant was dismissed and bought a claim for unfair dismissal. The ET found the dismissal fair. They said that the dismissal was due to conduct (failure to wear a mask on a client’s premises, amounting to a breach of the employee handbook), and that it was in the range of reasonable responses to dismiss.
Although this is an interesting case, it is important not to take it as gospel. Firstly, TL accounted for a drastic proportion of KF’s business and so any adverse employee relations between the two could spell disaster for the Respondent. No doubt this played on the ET’s mind in finding that a seemingly harsh dismissal was justified. Secondly, in May, the threat of Covid-19 was very much fresh in people’s minds. Less was known about the virus, its virulence, and its threat to the general population. One could argue that employers would be less concerned now, especially with what we know about airborne transmission. That could however be turned on its head, as the use of masks (especially in public settings) is more widespread. Finally, KF’s policy specifically noting PPE is noteworthy. This is an uncommon policy and no doubt played into their hands.