Could an employer dismiss an employee during the pandemic for failing to wear a face mask?

27 June 2022

All employers have a duty to maintain the health and safety of their staff, so most will have included a general health and safety clause in their employees’ contracts or handbook. It will be wiser for it to be in the contract than in a non-contractual handbook. Some sectors, such as construction, with heavy health & safety obligations will already include directions on wearing PPE on site which until the pandemic would be aimed at protecting the worker themselves from harm from construction activities on site.

Whilst the mandating by Government of face masks in the workplace has subsided with the pandemic, cases on this issue remain instructional for wider purposes or were similar health conditions to return. Wearing a face mask requirements during the pandemic were primarily (although not exclusively) to protect others. The impression from this case is that the damage to the relationship with the client was a central factor to the reasonableness of the requirement. Therefore in terms of employees’ behaviour at client sites, a strong line was able to be taken by the employer on wearing masks if this is demanded by the client.

Whether an employer could insist on wearing masks would likely depend on whether there is any impact on other members of staff who might either be traveling with an employee or attending sites with them.

In the same way, if a workplace is indoors, where air circulation may not be managed with 100 per cent effectiveness, even without Government-mandated mask wearing, the health and safety basis could be sufficient for an employer to require its staff to wear masks.

Care should always be taken in cases where an employee or worker has a health reason why they are unable to comply with any health and safety rules regarding mask wearing. In those circumstances, continued working from home may be an option in some sectors. Alternatively, there is the option of medical suspension for up to six months, but that would be at full pay, and masks may be mandatory in the workplace for longer than that. Therefore suspension may defer but not solve the issue, but may be a useful management tool in the near term.

The debate about vaccination in the workplace developed in a similar but more multifaceted way. That has broader health, data protection and, in the shorter term when only certain age cohorts able to access a vaccine, age discrimination overtones which all needed to be very carefully considered.

Guidance on these new challenging questions is emerging through Employment Tribunal decisions. However, every decision will depend on its own facts and so none will provide comprehensive guidance. Employers are advised that clear employment contract and policy terms directing behaviour in general or specific terms; and stating the health and safety or commercial business reasons that behaviour is required will give them the maximum flexibility and manage their risk most effectively.

How we can help

As always, we recommend that employment contracts and handbooks are tailored for your business. If you have not updated your employment contracts and staff handbook since the regulations on employment contracts changed in April 2020, now is the time to do so. See here how we can help

If you have concerns or queries about employment contracts and handbooks, please contact Carolyn Brown or Charlie Barnes for more information or a confidential discussion. 

More information on the recent tribunal decision

Case: Deimantas Kubilius v Kent Foods Limited Employment Tribunal Judgement 19 January 2020

The recent Employment Tribunal case of a distribution company which transported food products from suppliers to customers shows how to get this right. The employer had three key elements to its documentation. The first two were in the Employee Handbook and the third in an operational policy for its drivers. They said:

  1. “The company's success is built upon its relationship with its clients/suppliers. You should, therefore, be courteous and pleasant to clients/suppliers at all times.”
  2. “Health and safety:
    You should take all reasonable steps to safeguard your own health and safety and that of any other person who may be affected by your actions at work. You must co-operate with the company to ensure a healthy and safe working environment.”
  3. ‘… customer instruction regarding PPE requirement must be followed.’

What was the issue?

A delivery driver who had been employed for almost four years worked from a depot where the majority of the work involved travel to and from the site of a major client.

Due to the coronavirus pandemic, the client required face masks to be worn at its site and all visitors were issued with one on arrival. Despite being asked by two of the client’s employees, the driver refused to wear a face mask while he was in the cab of his vehicle on the client site. 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 the client’s rules required him to wear a face mask until he left their site. The driver still refused, arguing that his cab was his own area and that wearing a face mask was not a legal requirement. 

The client reported the incident to the driver’s employer and banned the driver from its site. Following an investigation by the employer, the driver was invited to a disciplinary hearing into the allegation that, in refusing to comply with the client’s instruction regarding PPE, he had breached the Employee Handbook requirements to maintain good relationships with clients and to co-operate to ensure a safe working environment. 

The driver asserted:

  • “my cab is my home”;
  • “I put on my helmet, glasses and a hi-visibility vest, (when he exited his cab on the client’s site) and the policy clearly states that I am not required to wear protective clothing when I am inside my cab”; and 
  • the Government guidance stated ‘Wearing a face covering is optional and is not required by law including in the workplace.’ 

The employer considered whether the driver could be moved to work on a different site, but there were no such roles available. They also tried to persuade the client to lift its ban, but the client refused. The disciplinary hearing officer thought that the driver was guilty of misconduct meriting a severe sanction. His view was that a deliberate refusal to comply with a health and safety instruction was a serious breach. He thought this was aggravated by the driver’s lack of remorse in the disciplinary hearing. He also thought that, even if the site ban by the client had been lifted, the employer would not have trusted the driver not to act similarly in future, potentially endangering their good relationship with other customers.

After the hearing, the driver was summarily dismissed which he did not appeal, but then ne claimed unfair dismissal.

An Employment Tribunal determined that the driver’s dismissal was fair. The employer had a genuine belief that its driver was guilty of misconduct, having carried out a reasonable investigation into facts that were not disputed. The employer 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. 

The employer had been entitled to take account of:

  • the importance of maintaining good relationships with its clients; 
  • the driver’s continued insistence that he had done nothing wrong (which caused concern as to his future conduct); and 
  • the practical difficulties arising from the driver being banned from the client’s site. 

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