The impact of COVID-19 issues and how they interact with employment law has been debated over the last year, but the key test is how Employment Tribunals react. As a consequence of the pandemic, the Employment Tribunal system has slowed down considerably and a backlog of cases has built up. With many cases now being heard remotely via a Cloud Video Platform system (similar to Zoom), case decisions relating to COVID-19 are now emerging.

The case

The case of Kubilius v Kent Foods is one such example. It involved a lorry driver delivering to a Tate & Lyle sugar refinery in May 2020 and one single act of misconduct: the driver refusing to wear a mask in the cabin of his lorry.

The refinery had a rule that masks must be worn on site, and masks were handed out on entry. Kent Foods had a rule that drivers must comply with the PPE instructions at customers’ sites. Tate & Lyle staff were concerned that although the driver, Mr Kubilius, was in his lorry, the window was open and staff would be handing paperwork to him. Despite being asked to wear a mask twice by two different on-site managers, the driver refused. His defence included that government guidelines stated that it wasn’t compulsory to wear masks at work. It was not against the law not to wear a mask and he described the lorry as his home.

Tate & Lyle banned the driver from its site and he faced disciplinary proceedings from Kent Foods, which led to his dismissal for gross misconduct.

Where an employer dismisses an employee with more than two years’ service, it must show that the dismissal was for a fair reason and that it was reasonable in the circumstances to dismiss.

The Tribunal accepted that the driver was dismissed for misconduct, which is a fair reason under employment law. But when deciding if a misconduct dismissal is reasonable, a Tribunal must also take established case law into account. This includes looking carefully at the dismissal process, and the Tribunal found that Kent Foods had undertaken a detailed investigation and had followed a fair procedure overall.

However, the crucial test is whether a dismissal falls within a “band of reasonable responses”. What that means is that if one employer were to dismiss where another employer would give a warning, the dismissal will only be unfair if no reasonable employer would dismiss. It doesn’t make a dismissal unfair if the employee would be “let off” by another in similar circumstances. Kent Foods had considered switching the driver to another role but there were no vacancies. Also, Tate & Lyle deliveries were 90% of the driver’s work and the driver remained banned, having not apologised. The Tribunal found that dismissal was a reasonable response and therefore fair.

What does this mean for employers?

During the COVID-19 pandemic, many employers will face a similar dilemma with employees refusing to wear PPE or following new regulations which could necessitate disciplinary action. Whilst this case is not binding on other Tribunals, it gives a useful indication of the thought process for Employment Tribunals in these matters, suggesting that existing principles will prevail. As always, employers should carefully consider all the circumstances and follow a fair process when considering dismissal.

If you have any questions on the issues of this case, please contact David Jepps.