Jennifer Stewart

Spring is in the air; the vaccination programme is well under way and with the increasing relaxation of restrictions over the next few weeks, things are edging closer to some semblance of life as we knew it. However, as minds turn to reopening workplaces, health and safety issues remain as important as ever.

An employer’s duties under the Health and Safety at Work etc Act 1974 are to ensure, so far as is reasonably practicable, the health and safety of employees and those affected by their undertaking. Applying this principle, in the case of Deimantas Kubulius v Kent Foods Ltd, the Employment Tribunal recently ruled that an employer did not unfairly dismiss an employee for refusing to wear a face mask whilst driving a lorry and delivering to a supplier during last year’s initial lockdown.

In Deimantas, the claimant had been employed by the respondent as a delivery driver. He was dismissed without notice by letter in July 2020 as a result of his conduct and subsequently brought a claim against the employer for unfair dismissal.

The respondent is a distribution company transporting food products from suppliers to customers and one of its major clients is the sugar company Tate & Lyle (T&L) who had made it a mandatory requirement for any individual visiting their site to wear a facemask to reduce the risk of Covid-19 transmission. As this was a temporary measure, T&L had not updated its written site rules, although it did provide all visitors accessing the site with a face mask.

When the claimant was asked to wear a mask during a scheduled delivery, he refused to do so as he was in the cab of his lorry and didn’t have to do so. T&L’s employees pointed out that it would still be possible for him to pass on the virus whilst speaking through the window of the cab. He was informed that the face mask was not for his protection, but for the protection of “everyone else on site from any potential Covid risk that the driver has brought with him.”

It should be noted that the respondent’s employee handbook included requirements for their drivers to treat their clients courteously and to take all reasonable steps to safeguard their own health and safety and that of others as a result of their actions at work. Their driver’s handbook required all drivers to follow customer instruction regarding the wearing of PPE.

Subsequently, a manager at T&L contacted the respondent to advise of the incident and that T&L had required to ban one of the respondent’s drivers from their site due to his refusal to wear a face mask despite being asked repeatedly to do so. Despite requests from the respondent, T&L were not prepared to overturn his ban and there was not enough alternative work or another suitable role for the driver.

Following investigations, the claimant attended a disciplinary meeting where he reiterated his position that he had done nothing wrong, however, the view of the respondent was that the claimant’s actions amounted to a serious breach and could potentially endanger the respondent’s relationships with other employers.

It was accepted by Employment Judge Barrett that the claimant had not been informed of the requirement to wear a face mask even inside his cab until he was asked to do so at the site and that it may have been “reasonable” for T&L to have warned him of the mask policy in the circumstances. However, he held that the claimant’s “continued insistence that he had done nothing wrong” had led the respondent “to reasonably lose confidence in his future conduct.”

He concluded: “Taking into account the relevant circumstances, including the claimant’s lack of remorse and the practical difficulties caused by the T&L site ban, I conclude that the respondent’s decision to dismiss fell within the range of reasonable responses. Therefore the claimant’s dismissal was fair.”

This is an unusual case which does give some relief to employers in terms of compulsory use of PPE by their employees, although it is important to note that the dismissal was for refusing to comply with an instruction given by a client, rather than refusal to use PPE.

It does, however, reinforce that employer’s health and safety policies must continue to be crystal clear, in addition to being effectively communicated to employees, to ensure compliance and avoid claims.

Jennifer Stewart is a senior associate at BTO LLP