Potentially, depending on the facts of the case.
In a recent decision (Kubilius v Kent Foods Ltd), the Employment Tribunal found that Kent Foods’ dismissal of Mr Kubilius, for refusing to wear a face mask while attending one of its client’s sites, was fair.
Mr Kubilius was employed as a delivery driver. In accordance with the terms of Kent Food’s Employee Handbook, Mr Kubilius had to: 1) take all reasonable steps to protect his health and safety and that of others affected by his actions; and 2) follow its client’s instructions regarding PPE requirements.
When attending a key client’s premises, Mr Kubilius was asked on two occasions to wear a mask when in his lorry cab, as part of COVID-19 security measures. It was said this was to reduce the risk of droplets from his mouth landing on others from his elevated position. Mr Kubilius refused to do so maintaining that he was not legally obliged to wear a mask.
Mr Kubilius was banned from attending the client’s site as a result and, further to disciplinary proceedings being undertaken, summarily dismissed. Kent Foods found that Mr Kubilius had breached the terms of their Employee Handbook which amounted to gross misconduct.
The Tribunal dismissed Mr Kubilius’ unfair dismissal claim finding that the sanction of dismissal fell within the range of reasonable responses given the circumstances of the case.
Hannah Pryce comments:
“Many employers will face a similar dilemma of whether to discipline an employee for refusing to wear a face mask at work. Although this decision is not legally binding, it still gives a helpful indication of the tribunal’s likely approach to such matters. Employers should carefully consider all relevant circumstances before taking action. Where there is a reasonable explanation for the employee’s refusal, (for example, they are medically exempt), disciplinary action is unlikely to be justified and could be discriminatory. Where there is no reasonable excuse, employers may now look to dismiss where that is justified"
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