Introduction
A UK employment tribunal (ET) was recently tasked with considering whether the dismissal of a lorry driver for his refusal to wear a face mask when visiting a client site, was fair and reasonable.
In Kubilius -v- Kent Food (Case Number: 3201960/2020 V), the complainant, a lorry driver, noted that there was no law requiring him to wear a face mask while on duty and therefore he was not obliged to do so.
Visiting a Client Site
A dispute arose when the complainant was attending to his duties at a client site. The client decided in May 2021 to require all staff at their site to wear face masks to reduce the risk of coronavirus infection. It required the same from all visitors to the site who were issued with face masks at reception.
A manager for the respondent company received a complaint from a manager at the client site noting that:
‘Unfortunately we had an incident with one of your bulk liquid drivers this morning. The driver was asked repeatedly to put his mask on by one of our managers. Every driver receives a mask when he enters site with instructions to wear the mask when on site. He refused, saying he was in his cab and he didn’t have to.
As a consequence he has now been banned from site on the grounds of noncompliance with health and safety rules. The vehicle registration was […].
If you could let us know the name of the driver so that we can put it in our banned driver list.’
The complainant contested the charge noting that:
‘I didn’t nothing wrong, I just stay in my cab and staff from Tates [client] came to me and start required to keep mask on my face but I don’t must seat in my cab with mask, my cab is my home. When I leaving my cab I wear mask and first its not the law.’
The complainant continued his protestations further noting that:
‘Wearing a face covering is optional and is not required by law including in the workplace.’
Disciplinary Proceedings
Disciplinary proceedings were issued against the complainant with the company concluding that the complainant should ultimately be dismissed. It was argued by the respondent company that the complainant’s refusal to comply with a legitimate health and safety instruction was a serious breach of their policies and procedures.
Furthermore, the company was aggravated by the complainant’s lack of remorse during the disciplinary hearing. The company regarded the complainant’s misconduct and lack of remorse as potentially being more important factors than his refusal to wear a face mask at the client site. The company concluded that the trust and confidence between the parties had been irrevocably broken and that there was a risk the complainant would fail to comply with reasonable instructions in the future, thereby endangering the company’s good relationship with other clients.
In correspondence to the complainant, the company noted:
‘You were given every opportunity to explain and account for your actions. We discussed:
The events that took place on the day, how you arrived at T&L [client] and signed in and was provided with a mask and how you wore this mask to carry out your duties when being loaded and then when you were waiting for paperwork whilst sitting in your truck you did not have the mask on.
How you were gestured by a T&L employee to wear your mask, to which you refused then held a conversation with the T&L employee regarding wearing the mask. This led to another conversation with a T&L manager asking you to wear your mask.
How you felt your space was being invaded as you were in your truck and did not feel it was a requirement to have a mask on. You informed me about the government guidance on wearing masks and I explained to you regarding the rules that T&L have imposed during this pandemic period.
The need to follow the rules, set by T&L despite no amendment in the documentation to state the wearing of masks, however having being provided with a mask on arrival and being asked to wear the mask at the time of realisation that it was not worn.
…
I am satisfied a full investigation has been conducted and you have failed to provide me with any mitigating factors as to why you did not wear your mask when requested. I consider your actions to be Gross Misconduct and having considered all alternatives have decided to summarily dismiss you with effect from 16th June 2020.’
Dismissal Requirements
Section 94 of the UK Employment Rights Act 1996 is comparable to the Irish Unfair Dismissals Act, providing that an employee may not be unreasonably dismissed by their employer.
In Turner v East Midlands Trains Ltd [2013] ICR 525, Elias LJ (at paras 16–17) held:
‘… the band of reasonable responses test does not simply apply to the question whether the sanction of dismissal was permissible; it bears upon all aspects of the dismissal process. This includes whether the procedures adopted by the employer were adequate: see Whitbread plc (trading as Whitbread Medway Inns) v Hall [2001] ICR 699; and whether the pre-dismissal investigation was fair and appropriate: see J Sainsbury plc v Hitt [2003] ICR 111.’
It is not for the tribunal to make its own assessment of the credibility of witnesses on the basis of evidence given before it (Linfood Cash and Carry Ltd v Thomson [1989] ICR 518). The relevant question is whether an employer, acting reasonably and fairly in the circumstances, could properly have accepted the facts and opinions which they did. The tribunal must have logical and substantial grounds for concluding that no reasonable employer could have assessed the credibility of the witnesses in the way in which the employer did.
In looking at whether dismissal was an appropriate sanction, the question is not whether some lesser sanction would, in the tribunal’s view, have been appropriate, but rather whether dismissal was within the band of reasonable responses. The fact that other employers might reasonably have been more lenient is irrelevant (British Leyland (UK) Ltd v Swift [1981] IRLR 91).
Legitimacy of the Dismissal
The ET had to consider several factors in assessing the legitimacy of the dismissal.
In the first instance, the ET held that the refusal of the complainant to wear a face mask, under the circumstances, did amount to misconduct. By initiating an investigation and disciplinary process providing the complainant with a written statement of the charges against him, providing him with copies of all the evidence against him and allowing the complainant to be accompanied at the disciplinary hearings by a friend, who could assist with the interpretation as needed, the ET held that due process and fair procedure had been followed in this instance. The complainant was also given a right to appeal the decision.
The final determination the ET had to make was whether the respondent company had acted reasonably in all of the circumstances in treating the alleged misconduct as a sufficient reason for dismissal. The ET held that the refusal of the complainant to wear a face mask, coupled with the potential negative impact an ongoing refusal would have with the client base of the company, constituted a legitimate reason for the dismissal of the complainant. The complainant’s continued insistence that he had done nothing wrong caused the company to reasonably lose confidence in the complainant’s future conduct. That being the case, the ET held that it was not feasible for the complainant to continue his contractual role with the company.
Conclusion
Although this is a UK decision, it may provide some insight into how similar cases could be decided before the Workplace Relations Commission or Labour Court.
It is important to note, in this instance, the driver did not cite any physical or psychological reasons as to why he could not wear a face mask. There may be reasons why some employees may be unable to wear a face mask due to an underlying health condition. In such instances, employers will be compelled to adopt an alternative approach, which may ultimately require them to consider offering relevant employee’s alternative roles or duties, if available.
The Covid-19 pandemic has had a profound impact on how we work. Many employers had to make difficult decisions about how employees could or should work when the pandemic emerged. They may have done so in good faith cognisant of the guidance and advice available at that time.
However, disputes will invariably arise between employers and employees on this issue, and it will be interesting to see the body of case law that will ultimately emerge from the Workplace Relations Commission and Labour Court in respect of this issue.
