An employment tribunal has recently found an employer fairly dismissed an employee who refused to wear a face covering.
The employee worked for a distribution company who transported food products from suppliers to customers. Due to the coronavirus pandemic one of the customers said that face masks must be worn at their site by all staff to reduce the risk of infection.
The employee refused to wear his mask when requested to while on site and in his vehicle. After being asked several times to wear his mask, he still refused. He was then banned from the customers site for not complying with their Health and Safety rules.
At the time the government guidance stated wearing a face covering was a recommendation and not required by law, even in the workplace. The employee said he would wear a mask in the open, but not while he was in his vehicle.
After an investigation into the issue the employee was invited to a disciplinary hearing where he was dismissed for gross misconduct.
The Employment Tribunal found the employers reason for dismissal to be fair, and that a fair procedure had been followed. It concluded that it was important for the employer to maintain a good relationship with their customers, and that by not adhering to the customers site rules, action had to be taken.
Employers have a duty of care for the health and safety of their employees, which includes providing a safe workplace. Employers must ensure that they keep up to date with government guidance on how to enable and create a safe working environment during the Coronavirus pandemic. Government guidance includes information on face coverings for particular types of workplace. The guidance must be an important part of any employer’s H&S risk assessment.
A refusal to wear a face covering by an employee can be deemed as misconduct as it is a failure to comply with a reasonable request. However, each case would need to be looked at individually, as dismissal may not always be deemed fair; a final warning or written warning may be seen as a more reasonable response.
If a reason for refusal to wear a face covering is due to disability, then disciplinary action or dismissal could amount to unlawful discrimination (unless it can be objectively justified.)
Employers should consider the following if they require employees to wear face coverings at the workplace or during working hours:
Communicate any policy or policy updates with employees, ensuring exemptions are communicated and how employees go about informing their employers of their exemption.
- Let employees know the consequences if they do not adhere to the policy.
- Listen to any issues or concerns employees may have and look at alternative options.
- Provide employees with the required PPE and instructions on how to use them.
If you would like more information on dealing with the above issue or information on any HR Topic please contact Clover HR on 0121 516 0299 or email us at info@cloverhr.co.uk
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