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It would seem that the answer is potentially yes!
Masks have been with us for some time now – it’s currently law that face coverings are worn in all indoor public places and anywhere else where adequate social distancing cannot be maintained and it remains so as we start to emerge out of lockdown. The WHO recommends that non-medical facemasks are worn in settings where physical distance cannot be achieved.
Despite this there is still a lot of confusion and discussion about whether employers can require an employee to wear a facemask in the workplace.
Last week, the Employment Tribunal ruled that it was fair to dismiss and employee for refusing to wear a face mask at work.
The Claimant, Mr Kubilius, was a lorry driver working for Kent Foods Limited. His role was to deliver products to customer sites. According to Kent Foods’ Employee Handbook he had to take all reasonable steps to protect his health and safety and that of others, and follow Kent Food’s Client’s instructions regarding health and safety and PPE requirements.
Mr Kubilius carried out deliveries to one of Kent Food’s key customers – Tate and Lyle. He was asked on two occasions to wear a mask whilst in his lorry. Tate and Lyle said this was to reduce the risk of droplets from him spreading to others whilst he was talking to people through the cab window. He refused to do on the basis that there was no legal requirement for him to wear a mask. Subsequently he was banned from attending Tate And Lyles’ site. Kent Foods brought disciplinary action against him which resulted in him being dismissed on the grounds of gross misconduct in that he had breached the terms of the employee handbook.
Mr Kubilius brought proceedings in the Employment Tribunal on the grounds that he has been unfairly dismissed. However the Tribunal found that his dismissal was fair and that it fell within the range of reasonable responses.
Whilst this case is the first that the Tribunal’s have had to decide on the issue of masks in the workplace, it’s not likely to be the last. The judgment is not legally binding it shows how Tribunals may decide future cases.
Employers (whether in a pandemic or not) have an ongoing health and safety duty to employees and third parties and there are commercial relationships that need to be maintained. There may well also be valid and a reasonable explanation for someone to not wear a mask, for example a medical exemption, and to take action in those circumstances may well be discriminatory. However this case is very helpful to employers as, depending on the circumstances, a dismissal for refusing to wear a mask may be justified.
If you would like to discuss this or any other HR issues your busines is facing please contact us.