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Category: Employment

Published: 21 April 2021

Delivery Driver who Refused to Wear Face Mask Loses Unfair Dismissal Case

A delivery driver who was fired for refusing to wear a face mask during the first Covid lockdown has his case rejected by an Employment Tribunal.

The Class 1 lorry driver had almost four years’ service when he was suspended after being refused entry by a customer to their site.

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Delivery Driver who Refused to Wear Face Mask Loses Unfair Dismissal Case

Deimantas Kubilius was dismissed without notice by Kent Foods in June 2020. An Employment Tribunal in London heard that approximately 90 per cent of his work involved driving to and from a sugar refinery operated by Tate & Lyle, who had decided to make face masks mandatory. All visitors were issued with face masks on entry.

But Mr Kubilius refused to comply, saying “he was in his cab and didn’t have to”. When he was questioned by his bosses, he said he had done “nothing wrong, I just stay in my cab”. The driver claimed that wearing face masks was “not the law”. He sent his managers a copy of guidance from the Government that wearing a face covering was “optional” and was not required by law in the workplace.

Although he did not leave his cab, Tate & Lyle were unhappy with his refusal because of the risk of droplets from the driver as he spoke to their employees from an elevated position. A manager at the customer said the actions of Kubilius by “blatantly refusing a simple request” was “extremely frustrating and it did make me very angry”. The manager said the driver failed to appreciate the mask was not for his protection but for others against the risk that he had brought Covid with him.

Kent Foods’ commercial director, Scott Liddle, asked Tate & Lyle to reconsider but they refused. They said they had been “pretty clear from mid-April” that masks were required.

When Mr Kubilius attended a disciplinary meeting, he repeated that the supplier’s request for him to wear a mask had been “wrong” as he was in his own environment in the cab, and that government guidelines stated wearing a mask was optional.

The employer decided his deliberate refusal to comply with a health and safety instruction was a “serious breach”, and his lack of remorse was an important factor. Even if the site ban had been lifted, they would “would not have trusted the claimant not to act similarly in future, potentially endangering [Kent Foods’] good relationship with other customers”.

The Employment Judge said while Mr Kubilius was not initially 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 to the situation. It was “not feasible for the claimant to continue in his contractual role” because of the ban, and Kent Foods’ decision to dismiss fell within the range of reasonable responses required by the law.

*Case Commentary: History has not been kind to Mr Kubilius - the further death and misery caused by Covid does not show his principled stance in a good light. It might have been different if he had a health reason for not wearing a mask, as this would have meant the employer would need to look at the Equality Act and possible discrimination. The first test case is awaited.

The outcome might also have been different if his employers had work with other customers. Because 90 per cent of their driving contracts were with this supplier, his stance also made his employers’ choice for them.

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