The employment tribunal in Kubilius v Kent Food Ltd ET 3201960/2020 has given judgment on whether dismissing an employee on the grounds of gross misconduct, for not wearing a face mask, was fair.
Facts of the case
Mr Kubilius had been employed by Kent Food Ltd since 25 July 2016 as a Class 1 driver. He was based in Basildon and 90% of his role was driving to and from the Tate & Lyle’s (T&L) Thames refinery site. Kent Food Ltd’s handbook requires its employees to:
T&L implemented a requirement that all staff should wear face masks at their Thames Refinery site. This was only a temporary requirement caused by COVID-19 and therefore T&L did not update their written site rules. However, all visitors were issued with face masks on arrival to the site.
On 21 May 2020 Mr Kubilius attended the T&L site. He was provided with a face mask and given a copy of the site rules. Whilst waiting in his vehicle for his paperwork, with his window down, Mr Kubilius was seen not wearing his face mask. A T&L employee gestured to Mr Kubilius to wear his face mask, but Mr Kubilius did not acknowledge the gesture. The T&L employee approached the vehicle and requested he put the mask on.
Mr Kubilius refused on the grounds that he was in his vehicle. The T&L employee explained the importance of wearing a face mask and the site rules require him to wear one. Mr Kubilius refused again. A manager of T&L approached the vehicle and explained he was required to wear the face mask as per the site rules and that they were in place to protect people on the site. Mr Kubilius refused again.
He was told that if he does not wear the face mask then he will be banned from the T&L Site. Mr Kubilius said there is no legal requirement for him to do so and refused. He left the site as his paperwork had been provided to him.
T&L sent an email to Kent Food Ltd informing them that their driver had been banned from the site on the grounds of non-compliance with health and safety rules. Mr Kubilius told Kent Food ltd that he had done nothing wrong, there is nothing in the site rules on wearing masks, he was only not wearing the mask when he was in his vehicle and it is not against the law to not wear a face mask.
An investigation was performed by Kent Food Ltd. Mr Kubilius was interviewed and provided a written statement. He admitted the T&L employees came up to him and request he wear his mask. However, he continued to maintain he did nothing wrong. T&L provided statements; their version of events did not change either. The investigating officer thought there was a disciplinary case to answer and was referred on. A disciplinary hearing invite was subsequently sent and there was one single allegation of misconduct.
“Failure to follow a Health and Safety Instruction from staff on a supplier’s premises, regarding the current requirement to wear a face mask when on site.”
A senior member of Kent Food Ltd believed it would be best for everyone if T&L rescinded the decision to ban Mr Kubilius. He approached T&L and asked them to rescind the decision. T&L refused and maintained their decision was the correct one to take and was justified.
The disciplinary hearing officer interviewed Mr Kubilius and his version of events did not change. He continued to believe he had done nothing wrong. The disciplinary hearing officer adjourned and considered the outcome. The disciplinary hearing officer thought the allegation of misconduct was established and it was a serious breach requiring dismissal with notice pay.
Employees, with qualifying service, have the right to not be unfairly dismissed. A potential fair reason for dismissal is conduct. For the employer to rely on this ground they will need to demonstrate that:
Once an employer proves there is a fair reason for dismissal, they will need to show that there was procedural fairness; and that the decision to dismiss was within the band of reasonable responses.
If employers follow the ACAS code of practice on disciplinary and grievance procedures, then the procedure will likely always be fair. The uncertainty for unfair dismissal is whether the decision to dismiss was within the band of reasonable responses.
In Kubilius v Kent Food Ltd the tribunal found that the reason to dismiss the employee was because of misconduct. They found there was procedural fairness. The employment judge held that the decision to dismiss was within the band of reasonable responses as: -
This is a first instance decision which means that the decision is not binding on other tribunals. However, this case does show what will be within the reasonable band of responses available to an employer. It is important to note that it was the combination of key relationship, loss of faith and site ban which meant the decision to dismiss was within the band of reasonable responses. Had it not been for the site ban then dismissal may not have been within the band of reasonable responses.
It is likely there will be further tribunal decisions on whether dismissing an employee for not wearing a face mask is fair. This is because the Government has not made it mandatory for employees to wear face masks in all workplaces. Face masks are not considered PPE either. For advice on masks in the workplace, including exemptions and discrimination issues, contact our employment team.