COVID 19 – Refusal to work/refusal to wear a face mask – Employment Tribunal update

In this update we summarise two recent employment tribunal decisions arising out of the pandemic. The first case concerns an employee who refused to work in order to protect themselves from a situation which they believed to pose a serious and imminent danger. The second concerns a dismissal for refusing to wear a face mask at a client’s worksite.

Case No.1: Tribunal finds employee was not protected from unfair dismissal because of general concerns about Covid-19 

In the case of Rodgers v Leeds Laser Cutting Limited ET/1803829/2020, an Employment Tribunal has found that an employee could not rely on health and safety reasons in an automatic unfair dismissal claim “to refuse to work in any circumstances simply by virtue of the pandemic”. This was because the very existence of Coronavirus does not inevitably create a serious and imminent danger in the workplace which cannot be avoided.

Protection from dismissal for refusal to work on health and safety grounds

Under employment legislation, an employee is granted protection from dismissal where there are legitimate health and safety concerns. An employee may be entitled to claim unfair dismissal where they have left work, refuse to return to work and/or taken appropriate steps to protect themselves and/or others from a situation which they reasonably believed to pose a serious and imminent danger, and one which could not be avoided.

There is no minimum length of service to bring a claim of this type.

Background to the claim:

This case considers the availability of statutory protection against unfair dismissal for employees who are concerned about the risk of contracting Covid-19 whilst at work.

In this case, the Claimant brought a claim for automatic unfair dismissal due to his leaving of and refusal to return to the workplace and for taking, what he considered to be, appropriate steps to protect himself and his family from infection.

The Claimant worked as a laser operator as part of a team of five and in a workplace roughly the size of a large warehouse. In March 2020, the Respondent implemented measures to combat the spread of Covid-19. These included adhering to social distancing, wiping down surfaces, staggering arrival times and putting up reminders on handwashing. On 24 March 2020, an employee communication was published confirming the workplace remained open and that safety measures were being put in place.

After a colleague of the Claimant displayed symptoms and began self-isolating, the Claimant informed the Respondent he would not be returning to work “until the lockdown eased”. The reason for this was the Claimant’s concern for his children; a 7-month-old baby and another diagnosed with sickle cell disease.

Employment Tribunal Decision:

The Tribunal found that the level of danger in the workplace was no more than that in general society and the Claimant even agreed that the workplace was “possibly safer than the community at large”. It could, therefore, not be considered circumstances of danger.

The Respondent’s evidence had demonstrated that the workplace did not pose an imminent or serious danger due to its size, the limited number of employees and the measures implemented to prevent the spread of Covid-19. It was, therefore, not a reasonable belief to consider there to be a serious and imminent danger. The Claimant could also have reasonably avoided any risk by following the guidance in place and by adhering to social distancing.

The Tribunal concluded that the Claimant’s absence from work was not due to any specific risk posed by the working conditions. This was evidenced by the Claimant’s failure to raise any specific issue with the Respondent. Instead, the Tribunal considered the absence to be linked to the Claimant’s concerns surrounding Covid-19 in general, although this was contradicted by the Claimant’s actions of driving a friend to the hospital despite being advised to self-isolate. As his general concerns were not directly attributable to the workplace, the Claimant’s refusal to attend work was not appropriate and the claim was dismissed.

What does this mean for employers?

Although employers will welcome this decision, the Tribunal indicated that health and safety reasons relating to Covid-19 could be relevant to giving employees protection from dismissal, but that every case “will need to be considered on its facts and merits”. The key will likely be the link between the employee’s refusal to work and the working conditions at the time.

As one of the first claims of this nature to be heard, it is yet to be seen whether this approach will be followed. This is just a Tribunal decision and as such will not bind any future Tribunal or Court. A practical step for employers to take is to implement adequate health and safety measures which reflect current government guidance. By continually updating these measures as and when appropriate, employers will be committed to protecting employees and making reasonable attempts to lower the risk of infection.

In this case the Claimant had less than two years’ service so had to claim protection from dismissal for refusal to work on health and safety grounds. An employee with more than two years’ service could have also claimed ordinary unfair dismissal, and that may have arrived at a different outcome.

It’s worth noting that the law also protects employees (and more recently due to a change in the law, workers) from suffering a detriment, such as withholding pay, where they refuse to attend work due to a reasonable belief they are in serious and imminent danger.

Rodgers v Leeds Laser Cutting Limited ET/1803829/2020

Case No. 2: Dismissal for refusing to wear a face mask

In the case of Kubilius_v_Kent_Foods Ltd, an Employment Tribunal has ruled that an employer fairly dismissed an employee who refused to wear a face mask as required by a client when he was visiting their site.

Mr Kubilius, a delivery driver, worked at Kent Foods Ltd's Basildon depot where most of the work involved travel to and from a site of their major client, Tate & Lyle.

Kent Foods' handbook required its employees to show courteous treatment towards clients and that employees take all reasonable steps to safeguard their own health and safety and that of others while at work. Their drivers' handbook required customer instruction regarding the PPE to be followed. Due to the pandemic, Tate & Lyle required face masks to be worn on site, and all visitors were given a face mask.

In May 2020, despite being asked repeatedly by a Tate & Lyle employee to do so, Mr Kubilius refused to wear a face mask while in the cab of his vehicle. He was told that without one, droplets from his mouth were likely to land on peoples' faces due to the elevated position in his cab, and that Tate & Lyle's rules required him to wear a face mask until he left their site. Mr Kubilius refused, and so Tate & Lyle reported the incident to Kent Foods and banned Mr Kubilius from its site.

Kent Foods tried to persuade Tate & Lyle to allow Mr Kubilius back on site, but they refused, and Kent Foods was not able to redeploy him. Following an investigation, Mr Kubilius was summarily dismissed and he brought an unfair dismissal claim.

The tribunal concluded that Kent Foods had acted reasonably in all the circumstances in treating Mr Kubilius' misconduct as a sufficient reason for dismissal. That said, the tribunal noted that another, equally reasonable employer might have concluded that the incident merited a warning rather than summary dismissal - but the issue it had to decide was whether Kent Foods' decision fell within the range of reasonable responses.

What does this mean for employers?

This decision highlights how important it is for employers to have clear rules on health and safety and separately about the behaviour expected of employees in their relationships with clients, customers and suppliers.

Unless an employee has a legitimate reason for not wearing a face mask, failure to wear one is likely to be a refusal to follow the employer's reasonable instruction and therefore grounds for beginning a disciplinary process.

Kubilius_v_Kent_Foods Ltd