10th March 2021

Lorry driver takes Die Hard approach after dismissal for refusing to wear face mask

In January, Bruce Willis was asked to leave a pharmacy in California for refusing to wear a face mask. This was bold of the pharmacy staff considering his kill count in Die Hard alone was 73. Despite the arsenal of options available to him, Bruce surprisingly u-turned admitting this was an error of judgment and urged everyone to wear face masks. A lorry driver in Kubilius v Kent Foods Ltd ET/3201960/2020 finding himself in similar territory took the “John-McClane-Die-Hard” approach and fought the fairness of his dismissal in the Employment Tribunal for refusing to wear a face mask whilst visiting a client site.

What happened?

The respondent was a food company who, in this case, were involved in the distribution of sugar from well-known sugar manufacturer Tate & Lyle to suppliers. The claimant on arrival at the sugar company’s site was issued with a face mask. An employee of the sugar company realised Mr Kubilius was not wearing his mask while his window was open and asked him to put this on, whilst he was in the cab. The claimant argued he did not need to put his mask on as this was not law and, in any case, his cab was his own space. The employee responded saying droplets would fall down out of the cab onto people due to his elevated position. Mr Kubilius wore his mask outside the cab but refused to wear one within it. The sugar company banned the claimant from its site as a result.

Following an investigation meeting, the respondent concluded the claimant had breached the terms of their staff handbook. The handbook required employees to treat clients courteously, maintain good relationships with them and take reasonable steps to safeguard their own health and safety as well as others. The respondent quickly called yippie-kai-yay on the claimant’s employment and dismissed him for breaching health and safety procedures and failing to keep good relations with clients.

What was decided?

The Employment Tribunal found that the respondent genuinely believed the claimant had committed the misconduct, had carried out a reasonable investigation in all the circumstances and had reasonable grounds to believe the claimant had committed misconduct. The Employment Tribunal did consider whether a final written warning may have been more appropriate however it was convinced the respondent had acted reasonably in concluding they had lost trust in the claimant to maintain good client relations in the future. The claimant was adamant he had not done anything wrong which caused concern for future behaviour.

Comments

This is a fact sensitive decision and does not give employers a licence to dismiss for refusing to wear face masks in the work place. Careful consideration should be given to the full circumstances of the case and any breaches in the staff handbook the employee may have committed. Considerable weight appears to have been given to the importance the employer placed on maintaining good client relations when considering the fairness of the dismissal. Therefore, employers should be able to justify the seriousness of the misconduct when dismissing for gross misconduct.

If you need any advice about coronavirus or unfair dismissals get in touch with Blackadders’ Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

Duncan Milne, Solicitor
Employment Law
Blackadders LLP
@EmpLawyerDuncan

www.blackadders.co.uk

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