Not Unfair To Dismiss Lorry Driver For Not Wearing A Mask

An Employment Tribunal (ET) has ruled that a lorry driver, who was dismissed by his employer for refusing to wear a face mask inside his lorry cab while delivering to a supplier during the UK’s first lockdown, was not unfairly dismissed.

Deimantas Kubilius v Kent Foods Ltd: 3201960/2020

Case summary

The Claimant (Deimantas Kubilius) was employed at Kent Foods Limited (the Respondent) as a Class 1 driver from July 2016 and was based primarily out of its Basildon depot. The majority of deliveries made from this depot involved delivering to and from Tate & Lyle’s (T&L) Thames Refinery site.

Prior to the incident in this case, T&L had made it a mandatory requirement for all people visiting their site to wear face masks to reduce the risk of Covid-19 transmission. The company did not, however, update their written site rules as the requirement was only a temporary one as a result of the pandemic but all visitors accessing were provided with face masks upon arrival.

On 21^st May 2020, the Claimant was scheduled to make a delivery to the T&L Thames Refinery site. However, when he was asked to wear a mask inside the cab of his lorry he refused to do so as “he was in his cab and didn’t have to”. To which the T&L staff replied by saying that it would still be possible for him to pass on the virus while speaking out of the window.

Following the incident, a manager at T&L contacted Kent Foods’ Transport Planner, Kieron Mahon, via email to inform him of what had happened and that one of the delivery drivers from Kent Foods had been banned from their site after being “asked repeatedly to put his mask on” but he refused to. Once Mr Mahon had established that the driver was Mr Kubilius he sent him a text message to inform him of the ban.

The Claimant responded, stating that he had done “nothing wrong, I just stay in my cab” and that wearing face masks was “not the law”. Mr Kubilius also sent Mr Mahon the T&L site instructions which did not include any details with regards to the wearing of face masks, along with Government guidance which stated that “wearing a face covering is optional and is not required by law including in the workplace”.

Mr Mahon then passed the matter onto his line manager, Neil Lagdon, so he could undertake an investigation into the incident. As part of the investigation process, Mr Lagdon interviewed Mr Kubilius where he reiterated T&L’s face mask policy and that statements were being gathered from the T&L staff present during the incident. The Claimant reiterated the same argument he had previously made (e.g. he was not legally bound to wear a mask and that the site instructions did not contain any details in relation to wearing a face covering) and added that he had “never worn the mask in the cab on previous visits to the site”.

The day after the interview, T&L Account Manager, Graham Coetzee (who dealt with the incident), was sent an email by Kent Foods’ Commercial Director, Scott Liddle, in which he was told that a disciplinary process was being undertaken and written statements were required from T&L staff present during the incident. In this email, Mr Liddle wrote:

T&L provided Mr Liddle with statements from two of their site managers, who both reconfirmed that the Claimant had refused to wear a face covering when making the delivery. One of the managers wrote in his statement that he had said to Mr Kubilius that “with no mask on, all the droplets coming from his mouth as he spoke were going to land on people’s faces due to his elevated position up in the cab”.

The other manager stated that the Claimant “blatantly refusing a simple request is extremely frustrating and it did make me very angry”. This manager also informed Mr Kubilius the face mask was not for his protection but for the protection of “everyone else on site from any potential Covid risk that the driver has brought with him.”

During the ET proceedings, Mr Liddle said he attempted to persuade T&L to remove Mr Kubilius’ ban so that he could continue his role with Kent Foods, as if he was not able to make deliveries to and from the T&L site, there would not be enough alternative work or another job role for him to undertake. However, he was unable to persuade T&L to overturn the ban.

The Claimant then attended a disciplinary meeting with Kent Foods’ Site Manager, Sol Chinamo, on 12th June 2020, where he reiterated that he had done nothing wrong during the incident. Mr Chinamo took the view that Mr Kubilius’ actions were a “serious breach” and that even if his ban had been removed, he “would not have trusted the claimant not to act similarly in future, potentially endangering [Kent Foods’] good relationship with other customers”.

Mr Kubilius was dismissed by Kent Foods on 25^th June 2020 but the Claimant did not appeal the decision. Instead he brought an Employment Tribunal claim for unfair dismissal against Kent Foods.

Upon dismissing the claim, Employment Judge Barrett stated:

Adding that under the circumstances it may have been “reasonable” for T&L to warn the Claimant of the face mask policy but that Mr Kubilius’ “continued insistence that he had done nothing wrong caused [Kent Foods] to reasonably lose confidence in his future conduct”.

Judge Barrett concluded:

Comment

This case puts a pandemic slant on existing case law around following reasonable management instructions and employers acting on the instructions of their customers.

Recently, we have been supporting many employer clients with disciplinary proceedings against employees who have not followed the coronavirus rules and recommendations; many of whom feel that they should set a firm example in this regard.

Such disciplinary processes can be more tricky than usual as the requirements in question are not likely to be referred to as specific examples in the employer’s disciplinary policy and there may not be any precedents set from previous cases.