Driver's dismissal for not wearing a facemask 'was not unfair'

A delivery driver has lost a claim of unfair dismissal after he was fired for refusing to wear a mask while on duty during lockdown.

The case involved Deimantas Kubilius who had worked as a driver for Kent Foods Limited for four years.

Most of his work involved driving to and from their supplier Tate & Lyle’s (T&L) Thames Refinery site.

During the pandemic, T&L introduced a rule that made wearing facemasks mandatory on site to help to stop the spread of the virus. It was a temporary rule change and was not added to the company’s written rules.

Visitors were provided with facemasks at the gatehouse.

However, when Kubilius arrived at the T&L site, he refused to wear a mask as he was in his cab.

A T&L manager sent an email to Kent Foods to inform them that Kubilius was banned from their site as he was repeatedly asked to put a mask on but refused.

Kent Foods’ transport planner Kieron Mahon contacted Kubilius who insisted he had done nothing wrong as it was not required by law to wear a facemask.

He emailed Mahon a copy of T&L’s rules which didn’t mention a requirement to wear facemasks, along with government guidance that wearing a mask in the workplace is not required by law.

Kubilius was interviewed by his line manager, Neil Lagdon, and reiterated that wearing a mask was neither part of UK law nor T&L’s written policy.

He showed a lack of remorse and insisted that he had done nothing wrong. This led to Kent Foods losing confidence in the likelihood that he would wear a mask in the future.

Commercial manager Scott Liddle stated in an email: “Clearly if [Kubilius] is unable to load sugar at Tate & Lyle then this materially affects his ability to do the job for which he is employed.”

However, Liddle believed that stress caused by the pandemic had temporarily affected Kubilius’ judgement and he would soon be able to work again.

He emailed T&L to ask them to lift the ban but T&L’s plant manager, Liz McColm, said that it had been clear since April that masks were required and that Kubilius was simply using the lack of written guidelines as an excuse.

Kubilius refused to change his stance at a disciplinary meeting and was dismissed for the ‘serious breach’ of failing to comply with a health and safety regulation. He took the case to the Employment Tribunal but it ruled against him.

Judge Barrett said that Kent Foods’ response in dismissing Kubilius had been reasonable given that he had showed no remorse and his refusal to wear his mask had created practical difficulties.

Please contact us if you would like more information about the issues raised in this article or any aspect of employment law.

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