The East London Employment Tribunal has rejected a claim by an employee who was disciplined and then dismissed for not wearing a mask.
In Kunilius v Kent Foods Limited 3201960/2020, Judge Barrett heard evidence via a remote video hearing that the food distribution company, which supplied Tate & Lyle’s Thames Refinery site, had hired the claimant as an articulated lorry driver. The respondent’s employee handbook required all drivers to comply with instructions regarding PPE and health and safety.
Despite Tate & Lyle rolling out a mask-wearing policy at their site during the first wave of the pandemic, the claimant refused to wear a mask when requested. In consequence he was banned from the refinery site. According to Tate & Lyle:
The driver was asked repeatedly to put his mask on by one of our managers. Every driver receives a mask when he enters site with instructions to wear the mask when on site. He refused, saying he was in his cab and he didn’t have to.§ 16
In his defence, the Claimant said: ‘my cab is my home. When I [leave] my cab I wear [a] mask and first its not the law [sic]‘.
While the evidence suggested that the Claimant had worn his mask when he left the cab of his truck, he was also observed not wearing a mask while sitting in the cab with the window open, endangering staff who spoke with him and handed him paperwork. The claimant’s employer was unpersuaded by his defence and after an investigation and disciplinary hearing he was dismissed without notice.
In cases of third-party pressure to dismiss an employee, the relevant questions include whether the employer has taken reasonable steps to avoid or mitigate any injustice caused by the third-party’s views (see Henderson v Connect South Tyneside Ltd  IRLR 466 at § 14).
The Tribunal held that the employer had conducted a reasonabe investigation and although there was a level of stress among keyworkers during the lockdown, dismissal was not outside the ‘band of reasonable responses’ (§64). They acted reasonably in protecting their client relationship. The claimant’s lack of remorse for his actions also left the employer with little choice as to the appropriate sanction in the circumstances.
From vaccination to social distancing, employers are increasingly asking for guidance on coronavirus and the workforce. In that context, this case is a helpful demonstration of how the refusal to comply with reasonable health and safety instructions, site rules and third-party requests can give rise to gross misconduct during the pandemic.
Up-to-date employee handbooks or policy guidance, clear communication with staff about conduct expectations and key third-party relationships during the coronavirus pandemic are likely to be key to employers getting it right.
Hat-tip to Paman Singh for bringing this case to light.
Lack of remorse and concerns about his future conduct providing persuasive #ukemplaw
— Paman Singh (@PamanSingh) February 20, 2021