The recent case of Kubilius v Kent Food provides an insight into how employment tribunals might look at unfair dismissal claims related to PPE during the pandemic. The claimant, a lorry driver, refused to wear a mask in the cab of his vehicle at the request of his employer’s client on arrival at its premises.
The client (which had a policy in place requiring all staff and visitors to wear a mask on site) complained to the employer and banned the claimant from its premises.
The employer had a policy that all employees should follow clients’ health and safety procedures when requested or required. The employer instigated a disciplinary process on the grounds of misconduct and dismissed the claimant as a result.
In deciding on the sanction, the employer (and subsequently when considering the case, the employment tribunal) considered the fact that the employee did not show any remorse and therefore concluded that it would not be able to have faith in his conduct in the future.
It also took into account that the employee was banned from the client premises and so the claimant could no longer undertake his duties in respect of that client.
It is important to note that this is a decision at first instance and therefore not binding on future tribunals. Additionally, the pandemic landscape continues to evolve and any future change of the UK government’s guidelines in respect of PPE may impact the way that future tribunals consider similar cases.
However, it does indicate that tribunals will appreciate that employers will take pandemic health and safety issues seriously, particularly if client relationships are risked as a result.
It would be wise for any employers in the insurance sector to check the health and safety requirements of their clients.
Employers must ensure that any of their own employees who visit external company premises as part of their duties not only understand those requirements but know that they are required to comply with them as a matter of their own contractual terms and that any failure to do so may be considered an act of misconduct.
For more information, contact the Elborne Mitchell employment team:
Kate Payne, Partner, payne@elbornes.com
Melanie Cotton, Associate, cotton@elbornes.co
