In what is thought to be the first case of its kind in England, an employee who was dismissed for refusing to wear a face mask on duty has lost a claim for unfair dismissal. This is interesting because it is likely to be the first of many cases involving Covid-19 legislation and relevant guidelines.
Mr Kubilius was a lorry driver who had worked for Kent foods for almost 4 years, when he was dismissed in June 2020. Kent foods had an employee handbook, one provision of which stated that “customer instruction regarding PPE requirement must be followed”.
Almost 90% of Kent Foods’ work was in respect of deliveries to and from its main customer, Tate & Lyle (T&L).
As part of its operations, in May 2020, in response to the pandemic, T&L decided that all visitors would be required to wear face masks on the premises. Indeed, these items were issued at the gatehouse.
During a delivery at T&L’s site in Thames Valley, in May 2020, Mr Kubilius was asked to put on his mask whilst on duty in his lorry. He refused, arguing that “my cab is my home”. T&L reported the incident to his employer, Kent Foods Ltd, Following an investigation and subsequent disciplinary process, Mr Kubilius was dismissed.
It was accepted that at the time the Government guidelines were that face covering was optional and not required by law, including in a workplace.
An Employment Tribunal hearing in London, in February 2021, ruled that the employee was lawfully dismissed for refusing to wear a face mask on a client’s premises.
The decision is interesting, particularly as we are likely to see more cases of a similar nature involving coronavirus related non-compliance and interpretation of the guidelines. However, the decision will be non-binding on other employment tribunals and each case will be dealt with according to the very specific circumstances involved.