Although the number of coronavirus cases continues to drop, it still seems that ‘normality’ may be a way off. What are your options in respect of those employees who refuse to follow policies dealing with face coverings, social distancing, temperature checks and tests?
An Employment Tribunal has recently provided useful guidance on how to deal with those employees refusing to wear a face mask.
Facts of the case
Mr Kubilius was a delivery driver for Kent Foods. Whilst making a delivery, he was asked twice by a customer to wear a face covering – he refused. Mr Kubilius was dismissed. The tribunal found that the dismissal was fair in the circumstances. Whilst this shouldn’t be used as a case that determines that the dismissal of every employee who refuses to wear a face covering will be lawful (as the decision isn’t binding and was decided on specific facts) it is a useful indication as to the approach tribunals are currently taking.
Here are a few takeaways from the case:
Clear policies – set out in writing the behaviours you expect colleagues to follow and make clear the consequences of failing to do so.
Communicate consistently – it’s important to ensure that your policies are regularly communicated, trained on, and accessible. Failure to do so can expose you to arguments that colleagues hadn’t agreed to them/ weren’t aware of them.
Care personally – it’s important to understand whether there’s an underlying reason for failing to wear a face mask (e.g. an underlying health condition). Failure to consider reasonable adjustments for those colleagues could expose you to claims for discrimination.
Take advice – before taking any action take advice as much depends on the factual circumstances of each case.
If you need support with the challenges, employment law risks and considerations of returning employees back to work and refusals to comply with your safety policies, get in touch to access our ‘safe return to work’ policy or further advice.