This GB Tribunal case found the employee was fairly dismissed for refusing to wear a facemask. The Decision is only first instance and from a GB tribunal therefore not binding on any Tribunal here.

However, the case is interesting as seems to be the first decision for breaching a rule requiring face masks to be worn.

Facts

K was a lorry driver delivering goods to a Client. On arrival at the site K was provided the site rules and a facemask. K remained in his cab, sometimes with window down, but did not wear his mask. Two of the Client’s managers asked K to wear his mask whilst K was in his cab, but K refused on a number of occasions. K later stated that there was no law requiring him to wear a mask when he was alone in his cab and that the site rules did not state this. K wore his mask outside of his cab when he was on site. However, the Client subsequently banned him as a Driver from entering their site.

K’s employer then conducted an investigation at the end of which they returned to Client and put K’s case to them. Their communication stated:

‘The disciplinary process we are following allows us to impose various sanctions including dismissal. Clearly if he is unable to load sugar at Tate & Lyle then this materially affects his ability to do the job for which he is employed. I have enormous sympathy with the T&L position on this, but I need to make sure that we have collected all evidence in writing before we move to the next stage of the disciplinary process. I would therefore like to request a written statement from T&L in response to the points raised above. We intend to proceed with the next stage of our disciplinary process on Friday so I would be grateful to receive an urgent response form you.’

The Client responded by providing two statements from the managers who stated that despite being asked on several occasions K continued to refuse to wear the mask. K was subsequently invited to a disciplinary hearing to answer an allegation that he had:

‘‘Failure to follow a Health and Safety Instruction from staff on a supplier’s premises, regarding the current requirement to wear a face mask when on site.’

Again, during the disciplinary hearing, the Company asked the Client to rescind the ban on K attending their site. However, the Client responded confirming that their decision to ban remained. The disciplinary panel found that if the Client site ban had been rescinded, they may have issued a Final Written Warning. However, they found K’s actions amounted to misconduct meriting a severe sanction – he had deliberately refused to comply with a health and safety instruction which was a serious breach. This was aggravated by K’s lack of remorse in the disciplinary hearing. Even if the site ban had been lifted, the Employer could not trust K not to act similarly in the future, potentially endangering Client relationship. The employer decided to summarily dismiss.

Findings

In determining that the decision to dismiss was fair, the Tribunal found it fell within the bands of reasonable response open to an employer. The Tribunal reasoned that the refusal to comply with an instruction to wear PPE on a client site, together with lack of remorse afterwards amounted to a conduct dismissal. The Tribunal also found that the site ban formed part of the relevant circumstances to be considered when assessing whether the decision was reasonable in all the circumstances.

Commentary

This is a difficult decision to classify. Whilst it was held to be a ‘conduct dismissal’, it does have soundings of a ‘some other substantial reason justifying dismissal on grounds of Third-party pressure to dismiss. There was no job for K if he was banned from the Client site.

There is also some sympathy with K who argued that there was lack of clarity around the rules on when he must wear a facemask. However, it is clear that he refused to do so when instructed to by two managers. Had K been an employee of the Client it may well be that the Tribunal would have found his dismissal unfair.  As it was he was a visitor to the Clients site and expected to comply with their heath and safety rules. It was his lack of remorse and lack of confidence that this would not happen again that lead to his dismissal being found fair.

We recommend any Members considering dismissing employees for breach of the Covid safety rules contact us for further advice.

Full Decision can be read here