(KUBILIUS V KENT FOODS LTD – Employment Tribunal decision February 2021)

A delivery lorry driver employed in role since 2016 was dismissed in June 2020 by his employer. Around 90% of his workload was to driving from the employer’s depot to the same client. In a direct response to the Pandemic the client updated their health and safety rules which included making it compulsory to wear face masks, including for visitors, (although this was not specifically on the site paperwork yet as it was not a permanent change).

Subsequently upon arrival on site in May 2020, the client provided the driver with a face mask to wear whilst on site. Whilst sat in the cab of his lorry with the window down, the driver repeatedly refused to wear the mask. His response to these requests pointed out that face masks were not mandatory according to Government guidance at the time. The client banned the driver from their site.

The lorry drivers employer’s staff handbook required its employees to treat clients courteously (a good relationship with clients was essential to its business) and went on to require employees to safeguard their own health and safety and follow clients’ instructions regarding PPE.

The lorry driver’s employer conducted an investigation, including contacting the client to suggest they reconsider the ban, but the client refused. At a disciplinary hearing, in June 2020 the lorry driver was dismissed for gross misconduct.

A claim for unfair dismissal was submitted for consideration by The Employment Tribunal. The decision of the Tribunal was that the dismissal was fair. They noted that the employer had conducted a reasonable investigation and noted that dismissal was not outside the “band of reasonable responses.” It was not so much a case of a reasonable employer might have concluded that this one instance of misconduct could have resulted in a warning rather than summary dismissal. That was not the issue. The employer’s decision fell within the range of reasonable responses. The Lorry driver’s lack of remorse and insistence that he had done nothing wrong led the employer to reasonably determine a loss of confidence in his future conduct, in particular, willingness to maintain good client relationships in the future. In addition, from a practical point the client’s ban from site made it impossible to recommence deliveries by the lorry driver and it had no other suitable alternative jobs available.

This case is of interest to other employers as it was based around the employee’s refusal to adhere to health and safety rules imposed by a major client . Employers will be reassured that reasonable COVID-19 protocols (in this case by a significant client) can provide reasonable grounds to defend unfair dismissal claims where the employer has followed a reasonable investigation and disciplinary process, prior to summarily dismissal decision.