Yes, you do need to wear a mask

It’s a theme we’ll no doubt be coming back to on a regular basis this year, but one of the first employment tribunal cases with a pandemic background has just been published. The case involves an employee who was dismissed for his refusal to wear a face-mask on a client’s site and it will no doubt be reassuring to employers who are currently grappling with employees voicing resistance to masks, vaccines or workplace COVID testing.

Kubilius v Kent Foods Ltd concerned third-party pressure from the company’s client to comply with its rules, but the principles are relevant in misconduct dismissals as well. The employee was given clear instructions to comply with the client’s requirement that a mask should be worn at all times on its site and the employee was found not to be wearing one while in the cab of his truck. When asked to comply he refused to do so and the client banned him from its premises. Mr Kubilius was consequently dismissed for misconduct due to his refusal to comply with the requirements and he brought a claim for unfair dismissal.

The tribunal found that the decision to dismiss was a reasonable response. Our view is that this is a pragmatic response to the pressures under which very many businesses are operating. With a duty to protect the whole workforce and others who come onto its premises, employers will have little choice but to enforce the measures which are considered necessary to limit the risk of transmission. Unless there is a good reason, such as a health condition or disability which prevents an employee from complying with measures put in place, employers will no doubt need to enforce the sorts of health & safety procedures, which many may consider personally invasive, for some time to come. This judgment demonstrates that as long as employers are consistent and reasonable in their handling of the rules, as well as engage in sensible dialogue with staff, they are likely to be able to defeat later claims.

Please do contact us if you would like to discuss any challenges with putting workplace controls in place.


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