The UK is now starting to see claims at employment tribunal connected to employment disputes arising out of the pandemic.
Coronavirus related employment claims can include breach of contract and discrimination in respect of Furlough, both in terms of the selection and process in managing the scheme and unfair dismissal claims in respect of redundancy selection and failure to consult. Some health and safety claims can also be lodged at an employment tribunal, such as where there has been a refusal to attend work due to perceived “serious and imminent risk” from the virus as well as whistleblowing claims. These types of claims though would be brought under the Employment Rights Act. Read the case law update below for details of the case ruling which address a Covid related claim.
Dismissal for refusing to wear a face mask
The Health and Safety at Work Act 1974, section 2, requires an employer to take all reasonably practicable steps to reduce workplace risks to their lowest level, and that section 7 sets out that where there is a failure to do this, it makes it a criminal offence. In addition, under this same piece of legislation, employees have their own duty to cooperate with their employer as is reasonably necessary.
A Covid-19 risk assessment will identify all the reasonable measures you must take to reduce the risk from Covid to its lowest level, and one of these measures could be the requirement to wear face masks.
The Tribunal Case: Mr Kubilius v Kent Foods Ltd
This coronavirus tribunal case deals with the matter of requiring face masks. Mr Kubilius was a delivery driver for a food depot company (Kent Foods Ltd) which required him to travel to and from a major client site. When the pandemic began, the client identified that there was a risk of the coronavirus being transmitted because of the way the driver sits elevated in the cab of their vehicle. Consequently, the client had introduced rules requiring drivers to wear face masks when on site. Mr Kubilius was repeatedly asked to wear a face mask but refused and the client went onto complain to Kent Foods Ltd.
Furthermore, Kent Foods also included within its own handbook that all employees must show courteous treatment towards clients as well as taking all reasonable steps to safeguard their own health and safety, and that of others whilst at work.
On receiving the complaint, Kent Foods asked the client to reconsider having Mr Kubilius back on site, but they refused and so, Kent Foods Ltd explored whether he could be redeployed, but unfortunately, this was not possible. The matter was progressed under the company’s disciplinary process and following an investigation and subsequent disciplinary hearing, Mr Kubilius was dismissed with immediate effect (summary dismissal). Mr Kubilius went on to raise an unfair dismissal claim at an Employment Tribunal.
The employment tribunal viewed that Kent Foods Ltd had acted reasonably in all the circumstances surrounding the incident and believed the decision to summarily dismiss (i.e., dismiss for a first offence due to the severity) was a sufficient response. This was despite recognising that another employer, who was equally responsible, may have concluded the matter to warrant a formal warning rather than a dismissal. Ultimately, the tribunal concluded that the decision did fall within a range of reasonable responses and Mr Kubilius lost his case of unfair dismissal.
HR and Health & Safety Learning Points
This coronavirus tribunal claim case highlights that the onus is not just on an employer in ensuring a covid secure workplace, but it also falls on the responsibility of the employee too (section 7 of the Health & Safety at Work Act, HSAW, places a legal duty on employees to cooperate with their employer as is reasonably necessary). Given the urgent and unclear situation with the virus the use of face masks is (in most cases) a reasonable measure where contact with other people is possible. Of course, to act reasonably, you should explore all other possible alternatives before progressing to a dismissal.
It is also worth considering that this issue came about because of a 3rd party complaint; the fact that the employer’s own handbook explicitly stated the need for courteous behaviour towards clients as well as taking all reasonable steps to safeguard their own health and safety, and that of others whilst at work supported the reasonable response of carrying out a dismissal.
Covid-19 Risk Assessment
HR Solutions would recommend that all measures introduced come about because of the Covid-19 risk assessment. You can access our Covid-19 risk assessment template here.
Return to Work Webinar
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