A delivery driver fired for refusing to wear a face mask inside his cab while delivering to a supplier during the UK’s first Covid lockdown was not unfairly dismissed, a tribunal has found.
The East London Hearing Centre ruled that Kent Foods Limited had lost confidence in delivery driver Deimantas Kubilius’ future conduct after his refusal to wear a face mask led him to be banned from a supplier’s site.
The landmark tribunal held that while Kubilius was not at the time aware of his requirement to wear a mask inside his cab, his “continued insistence” that he had done nothing wrong and “lack of remorse” made the employer’s decision to dismiss a fair and reasonable response. The judge added that it was “not feasible for the claimant to continue in his contractual role” because of the ban.
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Kubilius was employed at Kent Foods as a Class 1 driver from July 2016 until his dismissal without notice in June 2020, and was based primarily out of its Basildon depot. The tribunal heard that approximately 90 per cent of the work from this depot involved driving to and from Tate & Lyle’s (T&L) Thames Refinery site, and that a “good relationship with clients and suppliers is essential” to Kent Foods’ business.
The tribunal heard that, prior to the incident involving Kubilius, T&L had taken the decision to make wearing a face mask mandatory at its Thames Refinery site to reduce the risk of coronavirus infection. It did not update its written site rules because it was a temporary rule change during the pandemic, but all visitors were issued with face masks at the gatehouse.
On 21 May 2020, after Kubilius had visited the T&L site, transport planner Kieron Mahon received an email from a manager at T&L stating that a driver had been banned after being “asked repeatedly to put his mask on” and refusing to comply, saying “he was in his cab and didn’t have to”.
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When Mahon established the driver was Kubilius he texted him to inform him of his ban. Kubilius responded that he did “nothing wrong, I just stay in my cab”, adding that wearing face masks was “not the law”. He also sent Mahon a copy of the T&L site instructions that did not mention face masks, as well as guidance from the government’s website that stated “wearing a face covering is optional and is not required by law including in the workplace”.
Mahon passed Kubilius’ response to his line manager Neil Lagdon to investigate the incident.
Lagdon interviewed Kubilius on 25 May 2020 and explained that statements were being taken from the T&L staff involved. In the meeting, Langdon advised him of T&L’s policy on face masks, but Kubilius insisted “this was not law and [it] says nothing in the site rules”, adding that he had “never worn the mask in the cab on previous visits to the site”.
On 26 May 2020, Kent Foods’ commercial director, Scott Liddle, emailed T&L account manager Graham Coetzee who dealt with the incident, informing him that a disciplinary process was underway and asked for written statements. In this email, Liddle stated: “Clearly if [Kubilius] is unable to load sugar at Tate & Lyle then this materially affects his ability to do the job for which he is employed.”
Liddle received two statements from two T&L managers, who both confirmed Kubilius refused to wear a mask. One said he explained to Kubilius that “with no mask on, all the droplets coming from hls mouth as he spoke were going to land on people’s faces due to his elevated position up in the cab”.
The second manager added that Kubilius “blatantly refusing a simple request is extremely frustrating and it did make me very angry”. The manager told Kubilius the mask was not for his protection but to protect “everyone else on site from any potential Covid risk that the driver has brought with him.”
Liddle told the tribunal he assumed Kubilius would “come to regret his actions” and felt the stress of the pandemic may have “affected his judgement”. He aimed to persuade T&L to rescind the ban so he could continue his role, as all articulated lorry drivers had to work with T&L, and there were no vacancies for other roles.
Liddle spoke to T&L’s head of supply chain, Ben Wilson, asking him to overturn the site ban, but Wilson was unable to do so. He attached an email from T&L’s plant manager, Liz McColm, who said it had been “pretty clear from mid-April” that masks were required and the lack of written guidance was “a side issue that [Kubilius] is using as an excuse”. She added that she sympathised with Kent Food’s situation but “I don't think it is our problem and the decision stands”.
Kubilius attended a disciplinary meeting on 12 June 2020 with Kent Foods site manager Sol Chinamo, where he repeated that T&L’s request for him to wear a mask had been “wrong” as he was in his own environment, and that government guidelines stated wearing a mask was optional.
Chinamo decided that Kubilius’ deliberate refusal to comply with a health and safety instruction was a “serious breach”. He considered his lack of remorse in his disciplinary hearing was an important factor, and that even if the T&L site ban had been lifted, he “would not have trusted the claimant not to act similarly in future, potentially endangering [Kent Foods’] good relationship with other customers”.
Chinamo summarily dismissed Kubilius on 25 June 2020, who did not appeal the decision.
Judge Barrett said that while Kubilius was a “details-oriented person who believed he was following written site instructions” he “dug his heels in”. Barrett concluded that his “lack of remorse and the practical difficulties caused by the T&L site ban” meant Kent Foods’ decision to dismiss fell within the range of reasonable responses and the dismissal was fair.
Raoul Parekh, partner at GQ Littler, said employers would welcome this employment decision, but warned it “doesn’t tell us much” about how future cases of Covid PPE might be dealt with by the courts.
“The employee here was dismissed because he had damaged the employer’s relationship with its key customer by refusing to wear a mask when asked,” he said, adding that the case could have been avoided if the employer and their customer had “been clearer about the PPE requirements”.
“As interesting as this case is, employers will have to wait a bit longer for the first ruling on whether discipline or dismissal for refusal to comply with the employer’s PPE guidance is justified,” Parekh added.
Kent Foods has been contacted for comment. Kubilius could not be reached.