You’ve risk assessed your workplace and have put various measures into place taking into account guidance from the Government – working safely during Coronavirus Many employers have mandated the use of face masks but what if employees refuse to wear one? Where this enforcement comes through Government guidance for example, customer facing roles the this is likely to be a reasonable management instruction and therefore you could initiate disciplinary action if an employee refuses to wear a mask.
But what if your roles aren’t customer facing? You will want to consider whether there are other measures that can be taken to reduce the risk. Can you demonstrate that this is a reasonable management instruction? Have you discussed the reasons with the employee and explained the consequences? You should consider the reasons for refusal to wear the mask, for example if the reason is medical, you could seek guidance from Occupational Health. If there is no legitimate reason for the refusal, you can consider taking action under your disciplinary policy. Seek advice on the situation though, as it will depend on the situation.
In the tribunal
Kubilus v Kent Foods is a recent tribunal decision involving refusal to wear a face mask. Although this tribunal isn’t legally binding on others it does give some indication of what tribunals will consider.
The employee was a delivery driver whose job involved travel to and from Tate & Lyle, the main provider of work at the depot where the employee worked. The employee handbook required employees to be courteous with clients and take all reasonable steps to safeguard their own health and that of others they worked with. It also required employees to follow customer rules on PPE. Tate & Lyle’s rules were to wear a face mask even when in their vehicles as they said this was to avoid droplets from the drivers mouth landing on people as he spoke to them.
The employee refused to wear a face mask in his cab whilst on Tate & Lyle premises and said it wasn’t a legal requirement. Tate & Lyle banned him from their site and reported the incident to the employer. The employer investigated. The employer asked Tate to remove the ban, but they refused. The employer dismissed the employee for gross misconduct, for breach of both company rules and Tate & Lyle’s rules.
The tribunal said the dismissal was fair. There was no other work the employee could do (90% of his work involved Tate & Lyle) and he had been banned from Tate & Lyle’s site. However, the tribunal found the key reason for the dismissal was his conduct in refusing to comply with Tate & Lyle’s rule to wear PPE on site and he had shown no remorse. The decision to dismiss was a reasonable response even though another employer may have issued a warning. The employer was entitled to consider maintaining good relationships with clients.