What action can you take when you find an employee failing to comply with COVID-19 restrictions?

An employer’s disciplinary and grievance procedures provide them with the framework to address issues of unacceptable behaviour and/or actions of employees during their employment.  You may feel confident to deal effectively with issues which arise when your employee is at their place of work or working on behalf of your organisation with your customers, suppliers, or business partners at their locations.  However, the COVID-19 pandemic puts a spotlight on this aspect of people management with a ruling from recent case.  The case looks at COVID-19 and Employee Non Compliance.

The case in question is D Kubilius v Kent Food Ltd. (Click for details)

The tribunal at the East London Hearing Centre ruled the employer had lost confidence in a delivery driver’s future conduct after he refused to wear a face mask which resulted in him being banned from a supplier’s site.  Judge Barrett ruled the employer dismissal to be fair.  He stated in his conclusion ‘it was the Claimant’s (employee’s) deliberate refusal, despite repeated requests, to comply with a health and safety instruction which was a serious breach and amounted to misconduct warranting the dismissal’.

Disciplinary action was taken against an employee who had been delivering to a site in East London.   The site operator, a key supplier to the organisation, had asked him repeatedly to wear a mask inside the cab of his HGV as part of the new COVID rules.  In response to these requests, the employee had refused.  His reply was ‘he was in his cab and he did not have to wear a mask’.  His employer took disciplinary action against him, for failing to wear a mask, and summarily dismissed him for gross misconduct.

It was pointed out by Judge Barrett that “The misconduct concerned a single incident of refusing to comply with a PPE instruction at a client site” and although it may have been reasonable to provide a formal warning as an appropriate sanction, the employee’s continued insistence that he had done nothing wrong caused the employer to reasonably lose confidence in his future conduct.  A further relevant factor was the driver being banned by the supplier from their site and accordingly, the decision to dismiss fell within the range of reasonable responses by the employer.

This is the first published decision regarding health and safety disputes between employers and employees this year.   Each case is determined on its own set of facts and circumstances, but this judgement possibly gives a flavour of future outcomes to similar hearings.

For additional guidance on how to handle complex employee relations issues contact us at Solution22 – HR Consultancy Services

Source Materials – Journals: – HR Review 4th February 2021, People Management 26th February 2021, Legal:- Swinburne Maddison LLP and Nelsons employment law firm.