Tribunal judgment on the fairness of dismissal for failing to wear face covering at a customer’s site

In a first instance decision (which means it’s not legally binding on other tribunals), a recent claim for unfair dismissal, based on an employee’s refusal to wear a face covering at a customer’s site, was found this to be a fair dismissal for gross misconduct The claim was brought in the East London tribunal by Deimantas Kubilius against his former employer Kent Foods Limited.

The facts of the case

Mr Kubilius had been employed by Kent Foods as a lorry driver for almost four years. 90% of his work involved driving to and from Tate & Lyle’s Thames Refinery site. The Employee handbook stated how important it was to be courteous to customers and suppliers at all times and the Driver’s Handbook made it clear that employees had to follow customer’s instruction regarding PPE.

Tate & Lyle introduced a policy of requiring face coverings to be worn on-site, and visitors to the site were issued with these on arrival. When visiting the site, Mr Kubilius refused to wear a face covering, despite being asked to do so by two different site managers. He felt he did not need to do so as he was remaining in his cab (although his window was open, and he was required to pass paperwork over to Tate & Lyle staff) and it was not a legal requirement that he wear one.

Tate & Lyle reported the incident to his employer immediately in an email which said:

“As a consequence he has now been banned from site on the grounds of noncompliance with health and safety rules.…If you could let us know the name of the driver so that we can put it in our banned driver list.”

Having carried out an initial investigation, his manager wrote to Tate & Lyle setting out a comprehensive account of the employee’s explanation and adding:

“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 from you.”

They produced statements from the two managers who had spoken to him and these stated it was made clear to him that although it was not a legal requirement, it was their site rule that face coverings must be worn and that he would be banned from the site if he did not wear one.

Although everyone’s account of what happened that day was consistent, Kent’s Operations Director thought that the employee would come to regret his actions and considered that perhaps the stress of the coronavirus pandemic may have affected his judgment.

He thought that it would be better for all concerned if the site ban were rescinded and therefore, he telephoned the Head of Supply Chain Operations at Tate & Lyle to try to persuade him to overturn the ban. He followed up the call with an email attaching the employee’s explanation for his actions.

They refused and the employee was dismissed for gross misconduct for failing to follow a Health & Safety Instruction from staff on a supplier’s premises. In the outcome, the disciplinary hearing officer found that his misconduct and lack of remorse were more important factors than the site ban. In reaching his decision, and in his evidence, he said that even if the site ban had been lifted, he would not have trusted him not to act similarly in future, potentially endangering good relationships with other customers.

The employee brought a claim for unfair dismissal (acting in person) and this was defended on the basis that the dismissal fell within the range of reasonable responses and, in the alternative, there was some other substantial reason (SOSR) for the dismissal, namely third-party pressure given his ban from the Tate & Lyle site.

Judgment

The Tribunal found this to be a fair dismissal for gross misconduct. Although the case involved a single incident of refusing to comply with a PPE instruction at a client site, which a reasonable employer might think merited a warning rather than summary dismissal, the question was whether their decision fell within the range of reasonable responses.

They felt that it did as they accepted the employer could take into account the importance of maintaining good relationships with its suppliers and customers (which they included in their handbook) and the employee’s continued insistence that he had done nothing wrong which caused the disciplining officer to reasonably lose confidence in his future conduct. The site ban was a “further relevant factor”.

Take away points for employers

  • Every case has to be decided on its merits, but even if Kent had lost on the gross misconduct argument, they had done all the rights thing to set this up as a dismissal for third party pressure (except of course stating that was the reason for dismissal).
  • They had clear written evidence from the third party that they were not prepared to have the employee on-site or working with them. In this case, Tate & Lyle had confirmed that he was on a list of banned drivers. Careful consideration needs to be given in a case where the third party is not prepared to put this in writing as this may ultimately pose evidential problems in defending a claim. You need to consider how you can evidence this robustly.
  • In third party dismissal cases, tribunals will look to see if the employer has done everything that they reasonably can to avoid or mitigate the impact on the employee including trying to get the third party to change their mind and, if that is not possible, considered whether there is alternative work available. Again it is important to have documented evidence that these steps have been taken.

For the first time as we move out of lockdown, we will be in a position where COVID testing is widely available across all sectors and vaccines are being rolled out quickly.

Many business owners may start to find themselves caught between their employees and potentially unreasonable demands from their customers. It’s useful to remember that a third-party pressure process that dots the i’s and crosses the t’s can establish a fair dismissal, even in cases where the outcome may feel unjust, because it will allow the employer to show that they have done everything they reasonably can to avoid it and have behaved fairly.

How Citation can help

If you’ve got any questions about the potential impact this initial decision could have on your business, you can call our 24/7 advice line for expert guidance on 0345 844 4848.

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