An employee's refusal to wear a face mask may not always amount to gross misconduct. However, it could lead to their dismissal in particular circumstances.

In the case of Kubilius v Kent Foods Ltd, due to the coronavirus pandemic, one of Kent Food's major customers Tate & Lyle ('Tate') required face masks to be worn by all staff and visitors were issued with a face mask on entry.

The Kent Foods Driver's Handbook stated that customer instruction regarding PPE must be followed and maintaining good relationships with customers and suppliers was essential. The Kent Foods Employee Handbook required:

Courteous treatment of clients; and that employees take all reasonable steps to safeguard their own health and safety and that of others as a result of their actions at work.

During a delivery to Tate, Mr Kubilius refused to wear a face mask whilst sat in his lorry cabin with the window open. When asked by Tate employees to wear a mask, Mr Kubilius argued that his cabin was his home and that wearing a face mask was not a legal requirement. He was subsequently banned from the Tate site, which materially affected his ability to do his job.

Mr Kubilius was later summarily dismissed for gross misconduct for breaching his employer's requirements. Mr Kubilius brought a claim for unfair dismissal to the employment tribunal.

The employment tribunal held that Mr Kubilius' dismissal had been fair because:

Failure to comply with Kent Foods' Driver's Handbook amounted to misconduct

The disciplinary hearing procedure was fair

The business depended on maintaining good relationships with suppliers and customers

Mr Kubilius' insistence that he had done nothing wrong caused concern regarding future conduct

Mr Kubilius' ban made his role unfeasible.

Employers should:

Ensure that any internal and client policies regarding PPE are communicated adequately to all staff

Consider staff training on PPE usage

Include the consequences of failure to comply within policies.