As restrictions ease, and employees start returning to the workplace, to what extent can an employer take action against employees who fail to comply with Covid-19 safety requirements?
In one of the first ‘Covid-19’ related cases to be reported, an employment tribunal has held that an employer’s decision to dismiss for gross misconduct a lorry driver who refused to wear a face mask on a client’s site and which damaged the client relationship was fair. The facts of this case date back to May 2020.
In reaching this decision, the Tribunal took into account the following relevant factors:-
The misconduct concerned a single incident of refusing to comply with a PPE instruction at a client site;
The respondent (Kent Foods) had a policy which stated that: “customer instruction regarding PPE requirement must be followed”;
It was accepted that the claimant was not informed of the requirement to wear a face mask until he arrived at the client’s site that day;
A reasonable employer might have concluded that this instance of misconduct merited a warning rather than summary dismissal. However, the question is not what another employer might have done but whether the respondent’s decision fell within the range of reasonable responses;
The respondent was entitled to take into account the importance to the respondent’s business of maintaining good relationships with its suppliers and customers;
The claimant’s continued insistence that he had done nothing wrong throughout the disciplinary process caused the respondent reasonably to lose confidence in the claimant’s future conduct; and
A further relevant factor was that it was not feasible for the claimant to continue in his contractual role as the client had banned him from site, which was imposed as a consequence of the claimant’s conduct in the incident.
In this case, the employee was dismissed not for their non-compliance with the mask rule per se, but because of the negative impact the non-compliance had on the client relationship. A fact specific case. Although not a legally binding decision on appeal courts, this case shows how an employer could rely on damage to client relationships as a reason for justifying disciplinary or dismissal proceedings. It was interesting that the employer was able to argue there was no alternative role/route for the lorry driver after he was banned from the specific client site.
It would be interesting to see if dismissal following a breach of an internal PPE rule would have the same outcome. What would be important would be the sector in which the employer operates, the Covid-secure guidelines and the employer having a clear and communicated policy.
When taking action against employees who fail to comply with COVID-19 safety requirements, employers must ensure that their requests are reasonable in the circumstances. This means ensuring that the employer is operating in line with Government guidance and its own policies and procedures. Also, that such policies are clearly communicated and, where necessary, staff are trained to these requirements. Employers should also be mindful of the reasons why employees have failed to comply with any requests, particularly where this may be related to an underlying health condition that is protected as a disability under the Equality Act 2010.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.