Yes, held the Employment Tribunal in the recent case of Kubilius v Kent Foods. In the first ruling of its kind, the Tribunal held that it was fair for a lorry driver to be dismissed for refusing to wear a face mask while working on client premises, despite still being in his cab.
Facts of the case
The Claimant, Mr Kubilius, was a lorry driver working for the Defendant, Kent Foods Ltd. Mr Kubilius had been employed by the claimant for just under four years and delivered products to customer sites. Tate and Lyle were a key customer for Kent Foods and 90% of their work involved driving to and from the Tate and Lyle’s Thames Refinery site.
As a result of the first national lockdown, Kent Foods updated its employee handbook to include that “customer instruction regarding PPE requirements must be followed”.
Tate and Lyle insisted that face masks had to be worn by all staff and visitors to their Thames site and masks were provided on entering the premises. At the time, government guidance stated that “wearing a face covering is optional and not required by law including in the workplace”.
Mr Kubilius visited the site in May 2019 and ignored Tate and Lyle’s request for him to put a mask on while remaining in his cab. Mr Kubilius insisted that the cab was “his home” and refused to comply with the request despite being asked twice to wear a mask. The managers of the site had concerns that he could pass on the virus while speaking to staff through his window and subsequently banned the Claimant from its site.
Mr Kubilius was summarily dismissed for gross misconduct following an investigation and disciplinary process. Mr Kubilius brought a claim for unfair dismissal.
Tribunal decision
Mr Kubilius’ claim for unfair dismissal was rejected by the tribunal by reason of conduct and third-party pressure which amounted to ‘some other substantial reason’.
The Claimant refused to follow instructions to wear PPE on the client site. The facts were not disputed and Kent Foods believed that Mr Kubilius was guilty of misconduct, his dismissal was held to be in the range of reasonable responses.
The facts that influenced the tribunal’s decision were:
- The importance of Kent Foods maintaining a good relationship with Tate and Lyle.
- Mr Kubilius insisted that he had done nothing wrong after the incident and continued to do so throughout the disciplinary process, this raised concerns with his employer over his future conduct.
- Mr Kubilius was banned from the client’s site therefore making him unable to continue with his contractual role. Mr Kubilius had suggested he could have been redeployed to a less skilled role at a lower salary, however, Kent Foods Ltd had no alternative vacancies at the time.
Although an employment tribunal judgment is not binding on future cases, this case gives us an indication of the factors that the tribunal will consider in determining similar cases. It’s clear that this was a case decided on it’s specific facts and, if another employer is faced with a similar situation, their case may be decided differently. This case may be the first of many, particularly as lockdown eases and refusal to wear a face mask could be viewed differently by employers.
Read the full judgment here.