Andrew Maxwell: Harper Macleod secures landmark Covid-19 mask decision



Andrew Maxwell

Harper Macleod successfully defended a client at the East London Employment Tribunal in an unfair dismissal claim brought by an ex-employee who was dismissed for gross misconduct for refusing to wear a mask on a supplier’s site as part of Covid-19 health and safety rules. This has been reported as the first case of its kind in the UK. Andrew Maxwell explains the details of the case.

The claimant was an articulated lorry driver with the respondent and 90 per cent of his role involved making collections from the site of a key supplier. When the claimant arrived on site, he was informed that he must wear a mask at all times while on site, as per the site’s updated health and safety rules. Despite this, the claimant refused to wear a mask whilst sat in the cab of his lorry when requested by a number of staff. As a result of his refusal, he was banned from the supplier’s site.

During the investigation, the claimant stated his belief that he did not require to wear a mask whilst in his cab and cited the UK government guidance in place at the time of the incident which listed mask-wearing as optional.

The respondent was unpersuaded by his defence and after an investigation and disciplinary hearing he was dismissed without notice.

Tribunal - employee handbook role

The respondent’s employee handbook required all drivers to maintain good relationships with their suppliers and also that they should comply with customer instructions regarding PPE and health and safety. The Employment Tribunal found therefore that it was a rule for the respondent’s staff that they follow supplier’s instructions in relation to PPE whilst on a supplier’s site - and this would have included the wearing of a mask to protect against Covid-19.

The tribunal held that the respondent had conducted a reasonable investigation and that dismissal was not outside the “band of reasonable responses”. The respondent acted reasonably in protecting their client relationship. The claimant’s lack of remorse and continued insistence that he had done nothing wrong caused the respondent to reasonably lose confidence in his future conduct, in respect of maintaining supplier relationships in the future.

Comment

Under public health regulations, employers have a responsibility to ensure the health and safety of all staff who attend work during the pandemic and will be asking employees to comply with such requirements, including mask-wearing and social distancing. In that context, this case is a helpful example of how employers may be able to deal with those employees who refuse to comply. A failure by an employee to follow reasonable health and safety instructions, site rules and third-party requests can give rise to incidents that may be regarded as gross misconduct during the pandemic.

Key in this case was the contents of the employee handbook which stipulated that following client health and safety instructions around PPE was a rule. Therefore, having an up-to-date employee handbook or health and safety policy is important for employers, as is clear communication of these to staff. With a route map out of lockdown forthcoming, and ever-increasing numbers of staff returning to work, this will be a key step for employers to get right.

Andrew Maxwell is a solicitor at Harper Macleod