The use of face masks relating to coronavirus is a public health protection measure largely intended to help protect others and the wearer. It’s been a legal requirement for employees in some workplaces to wear a face covering. However, those requirements are changing on 19th July 2021 making face masks not compulsory. The question then arises as to whether face masks can still be enforced by an employer in the working environment. For workplaces where it’s not compulsory for other reasons, the employer may deem the wearing of a face mask to be beneficial. It may also be necessary as a precautionary measure, which should be identified in a COVID risk assessment. This is an issue that features in Employment Tribunal cases and the employer needs to act cautiously.
Early in 2021 this point was addressed in the case of Deimantas Kubilius v Kent Foods Limited, which could be called the case of the unmasked driver. An employment tribunal considered whether an employer’s decision to dismiss an employee following a refusal to wear a face mask was an unfair dismissal. Mr Kubilius (K) was employed as a lorry driver for Kent Foods Limited (KFL). Much of K’s work involved travelling to and from one of KFL’s major clients Tate & Lyle (T&L). This was the major customer and accounted for about 90% of the driving work from the site where K was based.
KFL’s staff handbooks stated that employees were required to safeguard their own health and safety, to treat clients courteously and to follow clients’ instructions regarding PPE. Importantly, government guidance at the time was that face masks were optional.
T&L required face masks to be worn on site as a safety precaution and masks were provided to all visitors. During a delivery to T&L, K was given a face mask and despite repeated requests from T&L staff he refused to wear it while seated inside his lorry cab, although he did wear it when outside of the cab. T&L responded by banning K from their site. KFL investigated the incident, invited K to a disciplinary hearing and subsequently dismissed him for gross misconduct. KFL relied on two reasons for the dismissal – conduct or alternatively some other substantial reason (SOSR) due to a major client banning K from its site. K claimed unfair dismissal.
The employment tribunal held that it was a fair dismissal in the circumstances. K’s lack of remorse and the difficulties caused by the client’s site ban were two key factors. KFL had a genuine belief in K being guilty of misconduct and had carried out a reasonable investigation. The dismissal was held to be within the band of reasonable responses. This means that it was an option open to a reasonable employer even though another employer may have decided to act differently.
This is an interesting case and it illustrates a good point. But please note that the decision in this case is not binding on other employment tribunals and was based on K’s conduct and refusal to comply with requirements imposed by a third party.
What can an employer do?
What you can do will really depend on all the circumstances although there are some practical considerations.
Why is the employee refusing?
The starting point will be to ask why the employee is refusing and for the empoloyer to consider their reasons. Perhaps the employee doesn’t understand the reason for the company requirement to wear a face mask. A clear explanation of the requirements, risk assessment and related policies and procedures may help. It will be important to ensure that the rules regarding face masks and procedures are clear and brought to the attention of all employees. There are some who will be medically exempt and it is important to bear this in mind also.
You may need to ask for medical evidence if you have some doubt about the employee’s assertion of any underlying health condition or a disability although it’s ultimately a judgment call. In any event, you should resist the sudden urge to issue a “do this or else!” ultimatum, however tempting. This may have the effect of aggravating any condition or causing distress. Such treatment could also amount to disability discrimination or harassment under the Equality Act 2010 and there is a distinct possibility that you will find this coming back to haunt you.
In the case of an employee with a disability, there will be a duty to make reasonable adjustments, so that the employee is not substantially disadvantaged when doing their job, for example by wearing a mask. Depending upon the employee’s role you may have the difficulty of considering what reasonable adjustments can be made. You’d also need to consider your obligations to other employees and customers. What is reasonable will depend on the risks and the circumstances at the time. Solutions may include continuing social distancing with the use of screens, working different hours, performing different duties, being redeployed to another part of the business or being allowed to work from home for a temporary period at least. Keep written records of what your employee suggests together with your suggestions and an assessment of their reasonableness.
No reasonable exemption?
It may be sufficient for you to remind the employee of their contractual obligations and ask them to reconsider their refusal. Although there may not be any express contractual term that you can rely on, there are implied terms such as the duty to obey the lawful and reasonable orders of the employer that may be more helpful. In this way, work rules which may be in your staff handbook or posted on a notice board, or a reasonable instructions given will need to be followed by the employee, depending on the circumstances.
Is refusal misconduct?
If ultimately you deal with the employee’s refusal as misconduct you will need to carry out a reasonable investigation and a fair disciplinary procedure in accordance with the ACAS Code of Practice. Depending upon the circumstances there may be grounds for the employee’s dismissal for SOSR. The law says this would need to be a “substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held”. For example, due to third party pressure, where your employee is attending a client site and your client won’t accept the employee without a face mask. You may need to attempt to change the mind of the client and consider reasonable alternatives. However, if unsuccessful or there are none then it may be fair to dismiss the employee.
If you decide to dismiss the employee by reason of misconduct or SOSR and there is an unfair dismissal claim, an important question will be whether you acted reasonably in treating it as a sufficient reason for the dismissal. If you didn’t a tribunal may find the dismissal is unfair. For example, dismissing an employee on the spot for failing to wear a face mask on one occasion is probably going to be unfair. Each case will be decided on its own facts and as always, it’s best to get legal advice.
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