The claimant worked for the respondent from 25th July 2016 until he was dismissed without notice by a letter received on 25th June 2020. The claimant was a Class 1 Driver and he largely transported food products to the Respondent’s clients - with one of the major clients being Tate and Lyle.  Within the Employee Handbook it outlined that it is essential to retain a good relationship with clients and suppliers.  As part of this, it also stated that all reasonable steps should be taken to safeguard health and safety and that customer instructions regarding PPE must be followed.

The issue leading to dismissal occurred on 21st May 2020.  The claimant was to go to Tate & Lyle’s site.  Tate & Lyle took a decision that face masks should always be worn on its site by all staff as a precaution in response to the risk of coronavirus.  The signs were not changed to reflect this but on arrival all visitors were issued a facemask.  The claimant refused to wear a mask when he was in his cab stating that it was his workplace.  He did agree to wear it when he was outside of his cab.   As a result of this, the claimant was placed on a ‘banned driver list’ by Tate & Lyle.  At that point, the wearing of face covering was optional and there was no requirement in law to wear one in the workplace.

An investigation proceeded which found that the claimant refused to wear his mask in his cab stating it was ‘his home’ and that he wore it at all times when he had left the cab.  It was found that the claimant had breached the requirements in the Employee Handbook to maintain good relationships with customers and suppliers as well as following PPE instructions from customers.   This led to a disciplinary hearing where the claimant reaffirmed his position, and when asked why he had not complied with the request he stated that the request made by those working in Tate & Lyle was wrong as he was in his own environment (while in the cab) and there was no requirement for him to wear a mask.  Following the hearing, a decision was made to dismiss considering the site ban that the claimant had received.  The dismissal was also based upon the deliberate refusal to comply with a health and safety instruction received.

The Tribunal found that the investigation was reasonable in the circumstances, the respondent also had a genuine belief that the claimant was guilty of misconduct.  This was largely on the basis of the Claimant’s refusal to comply with the PPE instructions at the customer’s site.  The Tribunal accepted the claimant’s submission that he was not informed of the requirement to wear the mask in the cab, and they did take into account the fact that everyone at that point was working as ‘keyworkers’ and that there could have been scope to give a warning rather than summary dismissal.   However, the question is whether the decision fell within the range of reasonable responses rather than what the Tribunal would do in that situation.  For that reason, the Tribunal held that it did fall within the band of reasonable responses and it dismissed the claimant’s claim for unfair dismissal.

Practical Lessons

As the Tribunal, like the rest of us, tries to get to grips with the changes that have come with employment law as a result of coronavirus restrictions, there are likely to be favourable cases for employees and harsh ones.  It is submitted that this is a very harsh decision, especially when it is based upon misconduct.   The fact that the claimant felt that the cab was his own space; there was no legal requirement to wear a mask, and he wore the mask when he left the cab could have been dealt with without recourse to dismissal.  The site ban may have led to other difficulties, but some other substantial reason was never put forward as the reason for the dismissal.  It will be interesting to see if this is appealed.
https://www.gov.uk/employment-tribunal-decisions/deimantas-kubilius-v-kent-foods-ltd-3201960-slash-2020