Face coverings are a legal requirement for staff in some workplaces, for example, customer-facing workplaces. Employers should consider the guidance on the 14 types of workplace as part of their risk assessment - https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19.
Employers who have updated their health and safety arrangements to include face coverings in line with government regulations and their risk assessments may be able to rely on the implied duty on employees to follow reasonable instructions as the legal basis for those requirements. However, exemptions will need to be taken into account on a case-by-case basis and not unlawfully discriminating against employees with legitimate reasons for not wearing a face covering. If the reason, for example, is medical and evidence can be provided, it is unlikely that an employer can fairly treat this as a failure to obey reasonable instructions.
A case law example: dismissal for refusal to wear a face mask was fair
In Kubilius v Kent Foods Ltd, Mr Kubilius worked at Kent Foods Ltd as a Driver. Tate & Lyle are a major customer, and the majority of the work was travelling to and from Tate & Lyle’s Thames Refinery site.
Kent Foods Ltd’s employee handbook required staff to be respectful towards clients/suppliers and take all reasonable steps to safeguard their own health and safety and that of others at work, and abide by customer instructions regarding PPE.
Tate & Lyle required face masks to be worn at the Thames site by all staff and visitors, and masks were provided on arrival. In May 2020, despite being asked by two Tate & Lyle employees, Mr Kubilius refused to wear a face mask while he was in the cab of his lorry. He was told that without one, droplets from his mouth would land on people’s faces due to his elevated position in his cab, and rules required him to wear a face mask until he left site. He continued to refuse, arguing his cab was his own area and that wearing a face mask was not a legal requirement. Tate & Lyle reported the incident to Kent Foods Ltd and banned Mr Kubilius from its site. Following an investigation, Mr Kubilius was invited to a disciplinary hearing into the allegation that, in refusing to comply with Tate & Lyle's instructions regarding PPE, he had breached the requirements to maintain good relationships with clients and to co-operate to ensure a healthy and safe working environment. Mr Kubilius was summarily dismissed.
An employment tribunal held the dismissal had been fair. Kent Foods Ltd’s genuine belief that Mr Kubilius had been guilty of misconduct followed a thorough investigation into the facts. Factors the tribunal took into account included:
- Mr Kubilius’s reluctance to co-operate with the requirement to wear a mask.
- The practical difficulties arising from him being banned from Tate & Lyle's site.
- The importance of maintaining good relationships with its clients.
It had acted reasonably in treating the alleged misconduct as a sufficient reason for dismissal. The dismissal fell within the range of reasonable responses; therefore, Mr Kubilius’s dismissal was fair.
This case's findings are not binding on future tribunals; this case was decided on specific factors. Other tribunals with similar situations may be determined differently.
Link to judgment.
What should I do next as an employer?
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