What can care providers do if an employee refuses to comply with Covid-19 testing and PPE requirements?
Care providers are responsible for protecting the health, safety and wellbeing of vulnerable people. To meet this responsibility, most have implemented measures such as regular Covid-19 workplace testing and the use of additional personal protective equipment (PPE). Are care providers in a unique position that allows them to deal with employees that refuse to comply?
Alongside the vaccination rollout, routine testing is central to the government's plans to re-open society and re-build the economy. Whilst employers can decide to make testing voluntary, care sector employers are likely to make it mandatory for their employees (and visitors). Testing can help to identify asymptomatic individuals and prevent potentially deadly outbreaks.
What can care providers do if their front-line employees refuse to be tested? The starting point is that employees have a duty to comply with reasonable management instructions. Therefore, where employees unreasonably refuse to comply with a reasonable instruction to be tested, disciplinary action will usually be lawful. So, when is it reasonable to instruct an employee to take a test, and when is it unreasonable for them to refuse?
PPE is another measure that protects the health and safety of colleagues, service users and visitors. Can care providers dismiss someone for not wearing PPE?
The recent case of Kubilius v Kent Foods Limited ET/3201960/2020 (10th February 2021) is insightful.
Mr Kubilius was employed as a delivery driver by Kent Foods Limited (Kent). Kent's employee handbook required courteous treatment of clients and that employees take all reasonable steps to safeguard their own and others' health and safety at work. Its drivers' handbook required drivers to follow customer instructions about PPE. Mr Kubilius worked at Kent's Basildon depot where most 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 owing 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.
The tribunal found that his dismissal was fair because:
Kent had a genuine belief that Mr Kubilius had been guilty of misconduct having carried out a reasonable investigation into the facts.
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.
And the answer is…
The key battleground is usually whether, firstly, the employer is giving a reasonable instruction, and secondly, the employee is unreasonably refusing it.
Providers caring for those who are more vulnerable to Covid-19 are generally more likely to establish the reasonableness of their testing and PPE requirements. Whether the employee is unreasonably refusing to be tested or wear PPE, will depend on their particular reasons; care providers must consider these carefully as part of their investigation into any refusal. The case mentioned above demonstrates that employees who unreasonably refuse to comply with a reasonable health and safety instruction can, in some circumstances, be fairly dismissed for misconduct.
Where an employee is reasonably refusing to be tested or wear PPE (for example, for health reasons), care providers need to consider whether there are alternative measures that can enable them to continue working. This will help to mitigate the risk of unfair dismissal claims (for those with the necessary length of service) and potential discrimination claims where the reason for their refusal relates to a protected characteristic under the Equality Act 2010. Alternatives might include other PPE, social distancing, regular hand washing, working from home or being redeployed into a different role.
If alternative measures are not available or sufficiently safe and the employer's requirement for testing and/or PPE is reasonable, it may be lawful to terminate the employment, provided, in the case of employees with the necessary length of service for an unfair dismissal claim, a fair process has been followed. Each situation differs and must be considered carefully; we recommend that care providers seek expert legal advice before taking any action.
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