Employee refuses to wear a facemask

The Employment Tribunal (ET) has recently heard a case regarding the refusal of an employee to wear a facemask during the course of his employment. This is unlikely to be the last of such cases in the current climate.

The employee had worked for a facilities management company from July 2016 until his dismissal without notice in June 2020. He made a claim for unfair dismissal. The employee drove lorries for the distribution company. A major client of the company was Tate & Lyle, the sugar company. Unsurprisingly the employer made it clear to all employees that maintaining a good relationship with its major customers was essential.  

The lorry driver's handbook required drivers to comply with any customer instructions regarding Personal Protective Equipment (PPE). Tate & Lyle decided to mandate the wearing of facemasks at its refinery as a safety precaution to reduce the risk of coronavirus infection. The employee was given a facemask upon arrival to the site but refused to wear it on the basis that he was in his cab at all times. The driver was banned from the Tate & Lyle site and was dismissed following an investigation.

The employee claimed that he had been hampered because English is not his first language and indicated that the incident had caused him to suffer stress and had 'restricted' his human rights. He represented himself at the ET.

The ET considered whether dismissal was within the band of 'reasonable responses'. They found that there were reasonable grounds for the employer to conclude that the employee had committed misconduct. The ET concluded that the procedure was fair and that the employer was entitled to take into account the importance to its business of maintaining good relationships with its suppliers and customers. Another relevant factor was that it was not feasible for the employee to continue his contractual role due to the Tate & Lyle site ban and there were no other roles available. Taking all of the above into account, the ET held that the employee's lack of remorse and the practical difficulties caused by the Tate & Lyle site ban, the employer's decision to dismiss fell within the range of reasonable responses and thus the dismissal was held to be fair.

This is not a binding decision as it is from the ET, but employers should consider the procedures relating to mandatory wearing of PPE in the workplace and particularly how they will react if an employee refuses. It is interesting that the general stress on all workers at the moment due to the Covid situation is an issue which the ET acknowledged in the judgment.

To discuss this or any other employment related matter, contact us.

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