The draft regulations making it mandatory for anyone entering a registered care home in England to have been double vaccinated unless they are clinically exempt were made on 22 July 2021.
It may be difficult to get a doctor’s appointment, harder still book a food delivery slot, but seemingly easier to have an unfair dismissal claim heard! Considering this decision, Mr Kubilius the lorry driver may wish it wasn’t!
Kubilius v Kent Food (2020) ET
Mr Kubilius was employed as a delivery driver for Kent Foods. The employee handbook for the company required that all employees behave courteously towards clients and that they take reasonable steps to safeguard their own health and safety and those of others whilst at work. In addition, Kent Food’s Driver’s Handbook required that any instruction given regards the wearing of PPE be followed.
90% of Kent Foods’ deliveries were to the Thames Tate and Lyle (T&L) refinery site. Two months into the national lockdown, T&L decided that face masks had to be worn by all staff and visitors to the site. During a delivery in May, Mr Kubilius arrived at the site and refused to put a mask on in his cab. He argued the cab was a safe area. T&L said given his cab was elevated, droplets falling from his mouth presented a risk of contamination. T&L reported the incident to Kent Foods and Mr Kubilius was banned from the site. Following an investigation and disciplinary hearing, Mr Kubilius was dismissed. He had refused to follow T&L’s instructions; failing to co-operate to ensure a safe working environment and breaching the requirement to maintain good relationships with clients.
Mr Kubilius did not like this decision either and pursued an unfair dismissal claim.
The tribunal ruled the dismissal was fair. Kent Foods had a genuine belief that Mr Kubilius was guilty of gross misconduct and this belief fell within the reasonable range of responses. Factors which the tribunal accepted as key to this decision were; the importance of maintaining good relationships with clients, especially T&L given that 90% of Kent Foods’ deliveries were to that company; the continued insistence by Mr Kubilius that he had done nothing wrong; and the fact that once banned from the T&L site, Kent Foods had no other role for him within the company.
This is only a tribunal decision and we have heard nothing of an appeal, however, it is the first to indicate a potential direction of travel for similar Covid-19 claims. Will other tribunals follow suit and have little time for employees who, for no good reason, refuse to follow reasonable instructions designed to stop the spread of the pandemic?
Dare we say that this case should come with a 'health warning'! The tribunal noted that an employer who issued only a warning would have fallen within the range of reasonable responses as well. This prompts the question as to whether a differently constituted tribunal might have felt the dismissal be beyond the range of reasonable responses. Key to the case were the specific circumstances; there was nowhere else that Mr Kubilius could be reassigned to work and the importance of maintaining good relationships with T&L was key to the future of Kent Foods.
Our advice for employers when dealing with employees who refuse to wear PPE remains;
- Discuss with the employee their reasons for not wearing PPE – are they on the Government’s list of those who are exempt? Do they have a disability that prevents them from wearing the required PPE?
- If that is the case, has an updated risk assessment been put in place to take account of this risk?
- If the employee continues, with no medical or discernible reason to refuse to wear a face mask, disciplinary measures may be taken where they are reasonable in the circumstances. As we have seen in this case, what is reasonable is a broad test. Given most of the UK population is now used to wearing face masks to carry out normal day-to-day tasks outside the home, it is unlikely a tribunal would deem it an unreasonable request to wear one within the workplace.
The refusal of employees to carry out instructions relating to Covid-19 measures is not limited to the wearing of face masks and PPE. The refusal of employees to take Covid-19 tests and/or have the vaccination is a key issue. Do look at our article on this matter later in this newsletter and consider purchasing our Toolkit which addresses this in more detail.
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