In what I believe to be one of the first court or tribunal decisions about mask wearing at work, the East London Employment Tribunal determined that a lorry driver who was sacked because he refused to wear a face mask while in his cab – even though at the time that was not a legal requirement – cannot claim for unfair dismissal.
Mr Kubilius was a Polish articulated lorry driver for Kent Foods Limited/TC Facilities Management Limited. He’d worked there since July 2016 until he was sacked on 25 June 2020.
The Company’s major customer was Tate & Lyle and approximately 90% of the company’s work was to and from T&L’s Thames Refinery site.
On the 21st May 2020, the Claimant was driving a van to the refinery site and “the driver was asked to put on his mask… every driver receives a mask when he enters the site with instructions to wear the mask. He refused saying he was in his cab and he didn’t have to”
Obviously at some point prior to the 21st May, T&L made a decision to ensure anyone visiting the site wore a mask.
T&L reported the driver to the Company and effectively banned him from the site.
The Claimant said in response: “‘I didn’t nothing wrong, I just stay in my cab and staff from Tates came to me and start required to keep mask on my face but I don’t must seat in my cab with mask, my cab is my home. When I leaving my cab I wear mask and first its not the law.’
After an investigation and disciplinary process, the employee was dismissed.
The Claimant claimed it was unfair dismissal and saying that a third party (T&L) had put pressure on the company. He said that T&L never told him to wear the mask, and that the government guidance at the time said that wearing a mask at work was optional. He said inside his cab was his own environment – his home – and that he hadn’t refused to wear a mask whenever he was outside the cab.
The Tribunal however reached a conclusion that the decision to dismiss was fair – it was within the band of reasonableness, and because it was not feasible for the claimant to carry out his work given the site ban, it was fair.
Lessons to learn
The decision from the tribunal was not surprising. The question of whether a dismissal is fair or not is now well established law, and the question is whether the decision to dismiss falls within the band of reasonableness. The decision to dismiss here was based on conduct but they could also take into account the third party “ban” from site.
This isn’t a case which answers the question ‘can my employer force me to wear a mask’ or whether mask wearing was a legal requirement or not. Indeed, at the time it was only guidance and not a legal requirement.
However, Tribunals are unlikely to decide a case like this where the decision would have the effect of invalidating or questioning government legislation – certainly unlikely at tribunal level.
Of course, mask wearing in certain places is now legislated for and thus a legal requirement.
Which would make any dismissal for failing to follow the law (as well as company policy) even more likely to be held as being fair.
Inevitably in due course we will have claims from claimants seeking to challenge the requirement to wear a mask on grounds of equality, eg disability or belief.
In the meantime, the lessons learned are
- Employers can require employees to wear masks at work
- Employers can fairly dismiss employees for failing to wear a mask if required
- Employers always need to follow a fair process
- Employers should be aware of potential claims for discrimination
Do check out my other videos on the “no jab no job” policy where I discuss whether a company can force an employee to have a vaccine, and my video on the law surrounding the wearing of masks.
The Law on Mask Wearing in England: https://youtu.be/2zPNi39qzQM
No Jab No Job – Can your employer force you to take a Covid vaccine: https://youtu.be/bSoqhGuLybI