By Alex Lyttle, partner at Tayntons 

If, a year and a half ago, someone asked you "what is the first thing to come into your head when they said the word facemask?", I wonder what your response would be?

Some might think of Casualty or ER, others Halloween or even Batman. I doubt if anyone would have thought they would become part of our day to day lives and never too far away from where we are.

They are now something we use every day both to go to the shops, visit a beer garden and at work.

The recent employment tribunal case of "Deimatas Kubilius v Kent Foods Ltd 3201960/2020" highlights the difficulty of advising employees when they must wear face masks or other PPE.

The claimant was employed as a liquid goods driver by the respondent. They had provided certain health and safety instructions including that "customer instruction regarding PPE must be followed".

The claimant arrived at a customer's site and was sitting in his cab with the window down. An employee of the customer asked him to put his face mask on and he refused to do so. The incident was reported to the respondent.

Shortly after the claimant was dismissed on full pay pending a disciplinary investigation. He was eventually dismissed for gross misconduct.

What to do?

At first glance, the case could be read that all employers can de dismissed if they fail to wear facemasks or other PPE when instructed to do so. The law is not as straightforward as this. The employer must:-

1. Show that the dismissal is fair and;
2. That the sanction they impose on the employee is seen as a reasonable response

In the current circumstances, the tribunal found that the failure of the claimant to follow a customer's rules was a reasonable ground for dismissal and the sanction of dismissal was reasonable in the circumstances outlined in the case.

Balancing act

As stated above, it is important that this employment tribunal decision is not seen as allowing all employers to force employees to wear PPE.

In the first instance, as with all employment matters communication is key. As an employer, you should take time to explain the reason you are asking them to do something. If working at close quarters this is very obvious but if in a more open environment you should explain that it is important for everyone to feel secure in their working environment and the rules you have in place, even if not a legal requirement, help to make others feel secure and the business as a whole functions better as a result of this.

Unfortunately, there will always be those who do not think they have to follow the rules. If you find this to be the case the starting point is a full disciplinary investigation and hearing in accordance with your internal procedures. You should consider what the employee has to say.

By way of an example if they say they are medically exempt then this is clearly a fair reason for the rules not to apply to them so long as it does not affect the needs of the business. However, if it is because they do not think they look attractive in a mask then a different conclusion could be reached.

The circumstances in the case above were very specific and it could be argued instant dismissal was at the more severe end of the penalties to be imposed. The reason it was approved by the tribunal was largely that the customer banned the claimant from their site meaning he could not carry out his duties. If he had been allowed on-site there are hints that a final written warning would be more appropriate.

As an employer, you should consider what sanction is appropriate to the circumstances you find yourself in.

Conclusion

This is an area where there will no doubt be further litigation as we hopefully emerge from the pandemic with things returning to normal. As ever with employment matters the following is key

• Communicate with your employees as they need to know why policies are in place
• If necessary, follow your internal procedures
• Consider the appropriate sanction on a case-by-case basis

 Alex Lyttle is a partner at Tayntons Solicitors and specialises in employment law and dispute resolution.

With a pro-active approach, Alex works collaboratively with his clients and understands the importance of building long lasting relationships.

If you wish to discuss any employment matters further then please don't hesitate to email Alex at alex.lyttle@tayntons.co.uk, call us on 0800 158 4147, or request a callback and a member of our team will be in touch promptly.