Failure to wear a mask was a fair reason to dismiss

A delivery driver fired for refusing to wear a face mask inside his cab while delivering to a supplier during the UK’s first Covid lockdown was not unfairly dismissed, a tribunal has found.

An employment tribunal has ruled that Kent Foods Limited had lost confidence in delivery driver Deimantas Kubilius’ future conduct after his refusal to wear a face mask led him to be banned from a supplier’s site.

The landmark tribunal held that while Kubilius was not at the time aware of his requirement to wear a mask inside his cab, his “continued insistence” that he had done nothing wrong and “lack of remorse” made the employer’s decision to dismiss a fair and reasonable response. The judge added that it was “not feasible for the claimant to continue in his contractual role” because of the ban.

Prior to the incident involving Kubilius, a client of Kent Foods had taken the decision to make wearing a face mask mandatory to reduce the risk of coronavirus infection. All visitors were issued with face masks at the gatehouse. 

The client contacted Kent Foods to inform them that a a driver had been banned after being “asked repeatedly to put his mask on” and refusing to comply. Kubilius responded to the allegation, stating that “he did “nothing wrong” and that wearing face masks was “not the law”.

Kent Foods made the decision that this this materially affected the driver’s ability to do the job for which he was employed. Kubilius attended a disciplinary meeting where he repeated that the request for him to wear a mask had been “wrong” as he was in his own environment, and that government guidelines stated wearing a mask was optional.

It was decided that Kubilius’ deliberate refusal to comply with a health and safety instruction was a “serious breach” and his lack of remorse in his disciplinary hearing was an important factor. He was summarily dismissed.

The Judge found that the decision to dismiss fell within the range of reasonable responses and the dismissal was fair.

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