Covid-related tribunal claims – is your business at risk?

Can an Employee refuse to wear a face mask at work?

A recent employment tribunal judgment has determined that dismissal of an employee who failed to wear a face mask whilst in his own cab of a company-owned vehicle but where he was working on a client’s site against that company’s policy, did not constitute an unfair dismissal.

Due to the pandemic, the company’s client required those on site to wear face masks at all times. Mr Kubilius, the employee in question, was asked on numerous occasions by staff of the client to wear a face mask however, he refused on each occasion insisting that he was in the cab of his vehicle and didn’t need to wear a mask.

The client reported this to Kent Foods (Mr Kubilius’ employer) and banned Mr Kubilius from its site. Kent Foods therefore followed a full investigation and disciplinary process which concluded that Mr Kubilius had breached the requirements to maintain good relationships with their clients and to cooperate to ensure a safe working environment. Mr Kubilius was summarily dismissed.

The employment tribunal held Kent Foods’ dismissal of Mr Kubilius had been fair and that it had acted reasonably in treating the alleged misconduct as a sufficient reason for his dismissal. While another employer might have chosen to issue a warning, the tribunal held that in this case dismissal fell within the range of reasonable responses of an employer.

With this case in mind, it is important to note that employers should carry out a risk assessment to identify the measures necessary to prevent the transmission of coronavirus in the workplace. In this case, the employer’s client required face coverings in the workplace as necessary, noting that some people are exempt from wearing a face covering. The company also had a policy in place highlighting the importance of its staff having a positive relationship with its clients.

If an employee does not have a legitimate reason for not wearing a face covering, a failure to wear one is likely to be a refusal to follow the employer’s reasonable instruction and could, subject to the facts in each case, amount to grounds for commencing a disciplinary process. It is also important to ensure all Coronavirus-related policies are clear and communicated to staff including individuals that work on-site at their customers premises.

Kubilius v Kent Foods Ltd ET/3201960/2020

Employers should therefore double check their polices and risk assessments to ensure that they are up to date with current laws and are Covid-19 compliant.

Can an employee’s dismissal due to absence from work because of ‘serious and imminent’ danger of contracting Covid-19 be seen as automatically unfair?

On 1 March 2021, Leeds Employment Tribunal determined that the dismissal of an employee for failing to show up for work without any permission or sick note was not automatically unfair.

Mr Roberts had been working for Leeds Laser Cutting Limited for less than two years before he was dismissed for refusing to work because the coronavirus pandemic presented a serious and imminent danger in the workplace.

Mr Roberts claimed that his son was clinically extremely vulnerable, suffering with sickle cell anaemia, and that everyone in the household was required to shield. He was absent from work for four weeks without permission and without a doctor’s note.

Mr Roberts claimed that his dismissal was automatically unfair pursuant to section 100(1)(d) and (e) of the Employment Rights Act 1996. These sections state that:

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

The Tribunal applied the test set out in Oudahar v Esporta Group Limited (2011), asking:

1. Were there circumstances of danger which Mr Roberts believed to be serious and imminent; and
2. Did Mr Roberts take or propose to take appropriate steps to protect himself or other persons from the danger or to communicate those circumstances to his employer?
The Judge ruled that Mr Roberts did not believe the danger to be purely in the workplace, but in the wider world. He had not raised concerns about the coronavirus and his employer’s risk assessments and reasonable steps to protect the staff included staggering arrival and departure times, regular sanitising and social distancing.

Employers are likely to welcome this decision, especially with many workplaces due to open in the coming weeks. The Tribunal noted, however, that the dismissal may have been seen to be unfair if Mr Roberts had completed his qualifying service due to the way in which the process was carried out.

It was also noted that the Employer had taken all reasonable steps to make sure that their employees would be safe, including having relevant policies in place to protect the company. Mr Roberts had not raised any concerns about the safety measures previously.

Rogers v Leeds Laser Cutting Ltd [2021] ET/1803829/2020

If you’d like further information on anything contained within this blog do not hesitate to contact Sarah Collier, Partner & Head of Employment Law on 01204 527777.