Can you dismiss someone for not wearing a facemask?

Yes, according to Kubilius v Kent Foods Ltd ET/3201960/2020 (10 February 2021)

Mr Kubilius was employed as a delivery driver by Kent Foods Ltd (Kent). Kent’s employee handbook required courteous treatment of clients and that employees take all reasonable steps to safeguard their health and safety and that of others as a result of their actions at work. Its driver’s handbook required drivers to follow customer instructions about PPE. Mr Kubilius worked at Kent’s Basildon depot where the majority of the work involved travel to and from the Thames refinery site of Tate & Lyle (Tate).

Owing to the Covid-19 pandemic, Tate required face masks to be worn at the Thames refinery site and all visitors were issued with a face mask on arrival. On 21st May 2020, despite being asked by two Tate employees, Mr Kubilius refused to wear a face mask while he was in the cab of his vehicle. He was told that without one, droplets from his mouth were going to land on peoples’ faces due to his elevated position in his cab and that Tate’s rules required him to wear a face mask until he left its site. Mr Kubilius maintained his refusal, arguing that his cab was his area and that wearing a face mask was not a legal requirement. Tate reported the incident to Kent and banned Mr Kubilius from its site. Following an investigation, Kent summarily dismissed Mr Kubilius.

Why was the dismissal fair?

  • Kent had a genuine belief that Mr Kubilius had been guilty of misconduct having carried out a reasonable investigation into facts that were not significantly disputed.
  • It had acted reasonably in treating the alleged misconduct as a sufficient reason for dismissal.
  • While another employer might have chosen to issue a warning, dismissal fell within the range of reasonable responses.
  • Kent had been entitled to take account of the importance of maintaining good relationships with its client.
  • Mr Kubilius’s continued insistence that he had done nothing wrong, caused concern as to his future conduct.
  • Practical difficulties arose from Mr Kubilius being banned from Tate’s site.