14/04/2021

Background

Mr Kubilius was employed by the Respondent as a lorry driver to make deliveries; much of his time was spent making deliveries to and from a major client. In May 2020, the client introduced a policy making it mandatory for all individuals who came on to its premises to wear a face mask, and provided face masks to all its visitors for this purpose.

On 21 May 2020, the Claimant attended the client’s premises in order to make a delivery. He was asked to wear a face mask but refused to do so, on the basis that he was inside the cab of his vehicle. The client made several requests and explained its reasoning to the Claimant, but he continued to fail to comply with the requests. The client informed the Respondent immediately following the incident that it had banned the Claimant from its site “on the grounds of noncompliance with health and safety rules”.

At the time, the use of face masks was not the subject of any UK government guidance or regulation.  However, some employers had by that time taken the decision as a matter of their health and safety policy to require employees and visitors to wear face masks. Separately, the Respondent had included policies in its own staff handbook which required its drivers to treat clients courteously and specifically, to comply with customer instruction regarding personal protective equipment.

The Respondent conducted an internal investigation following the incident, the outcome of which was that the Claimant had a disciplinary case to answer.  As such, a disciplinary process was commenced.  The finding reached following the disciplinary process was that, by refusing to wear a face mask as requested by the client, the Claimant deliberately refused to comply with a health and safety instruction and was in breach of the Respondent’s own policies contained in its staff handbook.

The Respondent concluded that the Claimant’s lack of remorse exacerbated the situation, and that it could not trust him to respect and maintain client relationships in future. As the majority of the Claimant’s duties involved making deliveries to this particular client, the Respondent came to the conclusion that redeployment was not an option available to it. On that basis, the Respondent found that the Claimant had committed an act of misconduct justifying dismissal.

Decision of the Employment Tribunal

The Employment Tribunal (the “Tribunal”) noted that the Respondent had conducted a thorough investigation, and had considered several factors such as the impact of the incident on its relationship with the client, as well as the Claimant’s insistence that he had done nothing wrong. Moreover, since the client had added the Claimant to its list of banned drivers (as had been notified to the Respondent in the email from the client following the incident on 21 May 2020), in practical terms the Claimant could no longer perform his role. On that basis, it found that the Claimant had been fairly dismissed.

Assessment

This appears to be the first decision of the UK Employment Tribunal on the enforceability of mandatory face mask requirements imposed by an organisation in response to COVID-19. A key factor driving the Respondent’s decision was the impact of the incident on its relationship with a key client, and the limitations of the Claimant’s role by virtue of the fact that his role revolved around making deliveries to the client. The Tribunal also noted that while dismissal was within the range of reasonable decisions available to the Respondent, another employer may have concluded that the incident ‘only’ warranted a warning.

Considerations for employers

A decision of the UK Employment Tribunal is not binding on the Workplace Relations Commission, Labour Court or civil courts.

However, it is clear that in the context of Irish employment law, a failure or refusal by an employee to wear a face mask, where they are required by their employer to do so (or, as in this case, by a client), may lead to a disciplinary process being invoked.

The outcome of a disciplinary process will depend on any number of factors such as, for example, whether the wearing of a face mask was required by Government regulations, whether there was a legitimate reason for the failure or refusal to wear a mask, whether other people were put at risk by the employee’s actions and/or the extent to which the employer had notified the employee of the requirement to wear one.

As has been the case since the start of the pandemic, employers are required to follow the most up to date public health advice and to adapt workplaces as necessary.  The Work Safely Protocol provides guidance to both employers and employees in relation to COVID-19 workplace health and safety issues and their obligations under the Safety, Health and Welfare at Work Acts 2005 to 2014.  Employees have obligations to take reasonable care to protect the health and safety of themselves and others in the workplace.  Employers should set out clearly the health and safety measures that employees must comply with and update relevant policies.

It is advisable that, if it is not already expressly provided for, policies state that a failure to comply with health and safety obligations may be held to be misconduct or gross misconduct, resulting in the imposition of a sanction up to and including dismissal, under the disciplinary policy.

The authors wish to thank Sonam Gaitonde for her contribution to this article.

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