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Kent Foods Ltd had dismissed a delivery driver for gross misconduct after he failed to wear a mask inside his cab.

A significant employment law ruling in relation to an employee being sacked for refusing to wear a mask has been handed down by an East London Employment Tribunal. Thought to be the first of its kind in the UK, the judgement centered around the case of Deimantas Kubilius, who was facing disciplinary action for refusing to wear a mask while making a delivery for Kent Foods Ltd.

Mr Kubilius was employed as a Class 1 Driver and delivered sugars and sweeteners from their Basildon depot. He was asked by a customer, Tate and Lyle sugar refinery, to respect their COVID-19 rules and put on a mask at their depot while still in his lorry. The incident took place on 21st May 2020 in a period where many companies were creating and amending coronavirus measures every week as more information was revealed about the ongoing pandemic.

Bosses at the sugar refinery site were concerned delivery drivers like Mr Kubilius could transmit the virus to their employees while talking out of the window. However, the driver refused to comply with their rules, stating that he felt his space in his truck was being “invaded”. Mr Kubilius argued that “my cab is my home”.

Kent Foods received an email later that day from a Tate and Lyle manager detailing the incident:

The driver was asked repeatedly to put his mask on by one of our managers. Every driver receives a mask when he enters the site, with instructions to wear the mask when on site. He refused, saying he was in his cab and he didn't have to.

After the event, Mr Kubilius - who did agree to wear a mask outside of his lorry - was then told he would face a disciplinary hearing from Kent Foods.

After the disciplinary process, Mr Kubilius was summarily dismissed on 25th June 2020 for gross misconduct as a result of his stance. He then launched legal action against Kent Food Ltd and claimed unfair dismissal.

 

The Employment Tribunal ruling on wearing a mask

Employment Judge Barrett held that the dismissal by Kent Foods had been fair. The company had a genuine belief that Mr. Kubilius had been guilty of misconduct, having carried out a reasonable investigation into facts.

These facts were not in dispute - Mr. Kubilius acknowledged that he had refused to wear a face mask. The judgement, therefore, simply had to determine whether it was fair for Kent Foods to dismiss Mr. Kubilius.

Judge Barrett stated that although it may have been “reasonable” to simply warn Kubilius, his "continued insistence that he had done nothing wrong caused [Kent Foods] to reasonably lose confidence in his future conduct".

The Judge concluded:

Taking into account the relevant circumstances, including [Kubilius'] lack of remorse and the practical difficulties caused by the Tate and Lyle site ban, I conclude that the decision to dismiss fell within the range of reasonable responses.

The judgement proposed that Kent Foods had been entitled to take account of:

  • The importance of maintaining good relationships with its clients; and
  • Mr. Kubilius’s continued insistence that he had done nothing wrong – which caused Kent Foods concern as to his future conduct; and
  • The practical difficulties arising from Mr. Kubilius being banned from Tate’s Thames refinery site.

While this is certainly an interesting employment law case, it may not be a true indicator of how employment disputes relating to the wearing of PPE may unfold further down the line. Employers will no doubt welcome the Tribunal’s decision, but it might not tell us much about how future cases of COVID-19 PPE will be dealt with by the courts.

This is due to the employee, Mr Kubilius, primarily being dismissed because he had damaged the employer’s relationship with a key customer by refusing to wear a mask, along with his continued insistence that he had done nothing wrong. Employers may have to wait a little bit longer for the first ruling on whether discipline or dismissal for refusal to comply with an employer’s PPE guidance is justified.

 

How Percy Hughes & Roberts can help

This case highlights the ongoing complications that COVID-19 is causing employees and employers alike. There are continuous changes to the legislation which means keeping up with employment law changes is a tough task. This is why it is vital that you receive expert employment law advice at the earliest indication that a potential dispute may arise.

At Percy Hughes & Roberts, we have a team of employment lawyers who boast years of experience and promise a confidential, friendly, and honest approach to all issues within the employment law field. If you have any questions regarding an unfair dismissal claim or any issue surrounding employment law, you can get in touch with our team for expert advice. Get in touch with one of our Wirral Employment Lawyers today by calling 0800 781 3894 or by completing the “Get in touch” form on this site.

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