Lorry Driver Fairly Dismissed For Refusing to Wear a Face Mask

An employment tribunal has ruled that a lorry driver was fairly dismissed for refusing to comply with a supplier’s instruction to wear a face mask during the Covid lockdown resulting in the supplier banning the driver from its site.

Relevant legal principles

Where an employee is dismissed for misconduct, British Home Stores v Burchell [1978] IRLR 379, sets out the following questions to be addressed by the tribunal when considering reasonableness of the dismissal:

(i). whether the employer genuinely believed the employee to be guilty of misconduct;

(ii). whether the employer had reasonable grounds for its belief; and

(iii). whether, when it formed that belief on those grounds, it had carried out as much investigation as was reasonable in the circumstances.

In determining whether the employer acted reasonably, it is not for the tribunal to decide whether it would have dismissed for that reason. That would be an error of law as the tribunal would have ‘substituted its own view’ for that of the employer.

Rather, the tribunal must consider the objective standards of a reasonable employer and bear in mind that there is a range of responses to any given situation available to a reasonable employer.

It is only if, applying that objective standard, the decision to dismiss (and the procedure adopted) is found to be outside that range of reasonable responses, that the dismissal should be found to be unfair (Iceland Frozen Foods Limited v Jones [1982] IRLR 439).

Facts

The Claimant was employed as a Class 1 driver based primarily out of his employer’s Basildon depot. The tribunal heard that approximately 90 per cent of the depot’s work was with Tate & Lyle’s (T&L) Thames Refinery site, and that a “good relationship with clients and suppliers is essential” to the employer’s business.

Prior to the incident that resulted in the Claimant’s dismissal, T&L had taken the decision to make wearing of face masks mandatory at its Thames Refinery site to reduce the risk of coronavirus infection. It did not update its written site rules because it was a temporary rule change during the pandemic, but all visitors were issued with face masks at the gatehouse.

After the Claimant had visited T&L’s site, the employer received an email from a manager at T&L stating that one of their drivers had been banned after being asked repeatedly to put on a face mask and refusing to comply, saying he was in his cab and did not have to wear a mask.

When the employer’s transport planner established that the driver was the Claimant, he texted him to inform him of his ban. The Claimant’s response was that he did “nothing wrong, I just stay in my cab”, adding that wearing face masks was “not the law”. He also sent the transport planner a copy of the T&L site instructions which did not mention face masks, as well as guidance from the government’s website that “wearing a face covering is optional and is not required by law including in the workplace”.

The Claimant was informed about T&L’s policy on face masks. The Claimant’s response was that “this was not law and [it] says nothing in the site rules”, adding that he had “never worn the mask in the cab on previous visits to the site”.

Subsequently, the employer’s commercial director emailed the T&L account manager, informing him that a disciplinary process was underway and asked for written statements. He added that: “Clearly if [the Claimant] is unable to load sugar at Tate & Lyle then this materially affects his ability to do the job for which he is employed.”

The employer received two statements from two T&L managers confirming that the Claimant had refused to wear a mask. One said he explained to the Claimant that “with no mask on, all the droplets coming from his mouth as he spoke were going to land on people’s faces due to his elevated position up in the cab”.

The second manager added that the Claimant’s “blatantly refusing a simple request is extremely frustrating and it did make me very angry”. He added that he told the Claimant that the mask was not for his protection but to protect “everyone else on site from any potential Covid risk that the driver has brought with him.”

The employer’s commercial director spoke to T&L asking the to overturn the site ban, but they were unwilling to do so.

The Claimant attended a disciplinary meeting at which he repeated that T&L’s request for him to wear a mask had been “wrong” as he was in his own environment, and that government guidelines stated wearing a mask was optional.

The employer decided that the Claimant’s deliberate refusal to comply with a health and safety instruction was a “serious breach” and that his lack of remorse was an important factor”.

The Claimant was summarily dismissed.

ET

The ET dismissed the Claimant’s complaint of unfair dismissal, upholding the employer’s decision to dismiss him.

Although a reasonable employer might have concluded that this instance of misconduct merited a warning rather than summary dismissal, the question for the tribunal was not what another employer might have done but whether the Respondent’s decision fell within the range of reasonable responses.

The employer was entitled to take into account the importance to its business of maintaining good relationships with its suppliers and customers. The Claimant’s continued insistence that he had done nothing wrong caused the employer to reasonably lose confidence in the Claimant’s future conduct.

A further relevant factor was that it was not feasible for the Claimant to continue in his contractual role due to the T&L site ban. The site ban was a consequence of the Claimant’s conduct.

Taking into account the relevant circumstances, including Claimant’s lack of remorse and the practical difficulties caused by the T&L site ban, the ET concluded that the employer’s decision to dismiss fell within the range of reasonable responses. Therefore, the Claimant’s dismissal was fair.

Deimantas Kubilius v Kent Foods Limited/ET/ 3201960/2020 V

Comment

Employers should not treat the decision in this case as the green light to dismiss employees who refuse to comply with COVID safety instructions. Each case is likely to be different. The dismissal in this case was justified because the employee’s behaviour was prejudicial to the employer’s relationship with its largest customer.

Warning: this news item is not a substitute for legal advice. 

Contact jbrown@nechambers.co.uk

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