delivery man wearing a face mask carrying boxes

Denial of the basic facts of the coronavirus outbreak is not confined to conspiracy theorists but has crept into what passes for government policy. Covidiocy is now mainstream

The Guardian, 7 September 2020

Background

The Claimant was employed as a Class 1 Driver by the Respondent from July 2016. He was dismissed without notice on 25 June 2020. The Respondent food distribution company contended that this was fair on the grounds of his conduct, or alternatively because of third-party pressure which amounted to ‘some other substantial reason’.

Their Employee Handbook includes a provision on Client/Supplier Relations: 

The company’s success is built upon its relationship with its clients/suppliers. You should, therefore, be courteous and pleasant to clients/suppliers at all times. Rudeness or off-hand treatment of clients/suppliers will not be tolerated, however badly the client/supplier may have behaved. If the relationship between yourself and a client/suppliers is deteriorating you should immediately seek the help of your line manager. 

On Health and Safety: 

You should take all reasonable steps to safeguard your own health and safety and that of any other person who may be affected by your actions at work. You must co-operate with the company to ensure a healthy and safe working environment. 

Additionally, their Driver’s Handbook requires that “…customer instruction regarding PPE requirement must be followed.” 

In response to the coronavirus pandemic, a client of the Respondent introduced a temporary requirement that all staff on their site should wear facemasks. All visitors were issued with facemasks at the entrance to the site. This included the Claimant.  

Investigation and Dismissal

On 21 May 2020, the Respondent received feedback from their client:

Unfortunately we had an incident with one of your bulk liquid drivers this morning. The driver was asked repeatedly to put his mask on by one of our managers. Every driver receives a mask when he enters site with instructions to wear the mask when on site. He refused, saying he was in his cab and he didn’t have to. As a consequence he has now been banned from site on the grounds of noncompliance with health and safety rules. The vehicle registration was […]. If you could let us know the name of the driver so that we can put it in our banned driver list. 

The Claimant was that driver. He responded: 

I didn’t nothing wrong, I just stay in my cab and staff from [the client] came to me and start required to keep mask on my face but I don’t must seat in my cab with mask, my cab is my home. When I leaving my cab I wear mask and first its not the law. (sic.) 

Further, he referred to the site instructions and guidance on gov.uk that: 

Wearing a face covering is optional and is not required by law including in the workplace. 

The Respondent investigated the incident and requested the client’s input. They concluded that the Claimant had failed to “be courteous and pleasant” and suspended him on full pay pending the outcome of the investigation and disciplinary process.   

The Claimant had seemingly come to regret his actions and the Respondent asked their client to rescind the site ban. The reply was “…I don’t think it is our problem, and the decision stands.’  

The Respondent was of the view that the matter might have been disposed of with a final written warning. However, the Claimant’s role required him to visit the client’s site daily. This being the case, they decided that he be summarily dismissed.  

Employment Tribunal

The Employment Tribunal (‘ET’) concluded that the dismissal was unfair. Their considerations can be distilled as:

  • Did the Respondent have a genuine belief that the Claimant was guilty of misconduct?  The ET accepted that the decision-maker had a ‘genuine belief’.
  • Did the Respondent carry out as much investigation into the matter as was reasonable in the circumstances? The ET concluded that it fell within the reasonable range of responses. 
  • Were there reasonable grounds for the Respondent to conclude that the Claimant had committed misconduct? There were. The Driver’s Handbook imposes an obligation to comply with PPE instructions at a client site. The Claimant accepted that he had refused to comply. 

The ET had regard to the Claimant’s lack of remorse and the practical difficulties presented by the site ban to conclude that the “…decision to dismiss fell within the range of reasonable responses”. 

Comment

This case should not be taken as precedent. 

It occurs that the Claimant’s conduct may have been exacerbated by communication difficulties – English was not his first language and he needed an interpreter to engage with proceedings.    

Employers should continue to proceed with caution. If in any doubt, take legal advice before you do anything else. 

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By Paul Sullivan FRSA

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