On 10 February 2021, in the case of Kubilius v Kent Foods Ltd, an employment tribunal held that an employer had acted fairly in dismissing an employee who had refused to wear a face mask as required by a client when visiting the client’s site.

Mr Kubilius was employed by Kent Foods Ltd as a delivery driver for their Basildon depot. His work largely involved travelling to and from their client Tate and Lyle’s Thames refinery site.

With the outbreak of the coronavirus pandemic, Tate and Lyle made it compulsory to wear face masks on their site and all visitors were given a face mask on their arrival at the site if they did not have one of their own to wear.

On 21 May 2020, Mr Kubilius refused to wear a face mask whilst on the site in the cab of his vehicle, despite being asked by two employees of Tate and Lyle to wear one until he left the site, especially as his elevated position in his cab would mean that he would be breathing over people’s faces and therefore possibly enabling the spread of the coronavirus.

Mr Kubilius’ argument was that in his cab he was his own space and that wearing a face mask was not a legal requirement.

Tate and Lyle reported the incident to Kent Foods Ltd and banned Mr Kubilius from their site.

Following an investigation and a disciplinary hearing into the allegation that, in refusing to comply with Tate and Lyle’s instruction regarding PPE, Mr Kubilius had breached the requirement to maintain good relationships with clients and to co-operate to ensure a safe working environment, Mr Kubilius was summarily dismissed.

Kent Foods Ltd’s employee handbook required courteous treatment of clients and that employees take all reasonable steps to safeguard their own health and safety and that of others in the course of their actions at work. Additionally, Kent Food Ltd’s driver’s handbook required customer instruction regarding PPE to be followed.

An employment tribunal decided that Mr Kubilius’ dismissal was fair for the following reasons:

  • Kent Foods Ltd genuinely believed that Mr Kubilius had been guilty of misconduct.
  • Kent Foods Ltd had carried out a reasonable investigation, the facts of which were largely undisputed, and they had acted reasonably in treating the alleged misconduct as a sufficient reason for dismissal.
  • Although another employer may have issued a warning instead, dismissal fell within the range of reasonable responses.
  • Kent Foods Ltd was entitled to take into consideration the importance of maintaining good relationships with its clients, the fact that Mr Kubilius’ continued to insist that he had done nothing wrong (as this raised concerns about his future conduct) and the practical difficulties that being banned from Tate and Lyle’s site created.

The Employment Tribunal’s decision is not binding on other courts and tribunals but it will doubtless bring comfort to employers trying to understand and comply with the obligation to keep employees and customers safe during the pandemic.

If you have any questions regarding the above case or any aspect of employment law, please do not hesitate to contact Debbie Sadler on 01494 478 671 or at djs@blasermills.co.uk.