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February 25, 2021

In the recent case of Kubilius v Kent Foods Ltd, the Employment Tribunal held that dismissal based on the employee’s refusal to wear a face mask in line with a client’s health and safety requirements was fair.

The individual was employed as a delivery driver, and most of his work involved visiting a client’s site at the Thames refinery.

The employer (Kent Food Ltd) required employees to be respectful towards its clients and take all reasonable steps to ensure that their work protects their own health and safety and that of others. 

These obligations were clearly outlined in the employee handbook.

In response to COVID-19, the client (Tate & Lyle) requires that everyone wears a face mask whilst on its site and provides face masks to all visitors upon arrival. 

The employee was asked by two of the client’s employees to wear a face mask, but he refused to do so inside the cab of his vehicle, arguing that this was his own space and he was not legally required to wear a mask.

It was clearly explained that his failure to wear a face mask posed a serious health and safety risk to others due to the raised position of his cab, but he still refused to comply.

The client notified the employer of his misconduct and forbade the individual from returning to their site.

The employer carried out an investigation into the incident and invited the employee to a disciplinary hearing regarding his failure to comply with the client’s health and safety rules about PPE.

The severity of the allegation was heightened by the fact that his misconduct had an adverse effect on the working relationship with the client.

Following the disciplinary hearing, the employee was summarily dismissed for gross misconduct.

The Employment Tribunal ruled that the dismissal was fair as it was based on the employer’s genuine and reasonable belief that the employee was guilty of gross misconduct.

The employer had carried out an appropriate investigation into the facts, and it was reasonable for them to conclude that the misconduct justified dismissal in the circumstances.

The fact that the employee refused to acknowledge any fault, the inconvenience caused by his ban from the client’s site and the value of client relations to the employer were essential factors taken into account when deciding to dismiss the employee. 

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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