Under pressure: When a customer calls for an employee’s dismissal

Lockdown measures may be set to ease in the coming weeks — but the COVID pandemic continues to cast a long shadow over many aspects of working life. As businesses throughout the UK once again re-open, or prepare to do so, many employers will be busy briefing staff on COVID-safety protocol and reinforcing any additional or elevated health and safety measures.

Hopefully, most employees will be considerate and cooperative. But what can you do if staff refuse to comply with safety rules put in place by your organisation, or by an important client or customer? A recent employment tribunal decision offers some useful pointers.

Kubilius v Kent Foods

The case of Kubilius v Kent Foods Limited concerned the dismissal of an employee, Mr Kubilius (an HGV lorry driver) for refusing to wear a face mask whilst at a client’s premises.

A client of Kent Foods introduced a rule that face masks were required to be worn whilst on site, due to the COVID pandemic, but it did not update its written site rules to reflect this. Mr Kubilius, who was delivering goods to the client, was handed a face mask to wear as he entered the site in his HGV lorry. A short while later, a manager at the site witnessed Mr Kubilius sitting in his cab, not wearing a mask, and with the window open. The manager instructed Mr Kubilius to wear a mask, but he refused and “dug his heels in”. He was repeatedly asked to wear a mask but he refused, insisting that he was not required by law to wear a mask and that he could not be forced to do so. The client banned Mr Kubilius from returning to its site.

At the disciplinary hearing held by his employer, Mr Kubilius relied on the fact that the client’s site instructions did not require him to wear PPE whilst in his cab and that a Government website stated, at that time, that employees did not need to wear a mask in public or whilst at work.

The employment tribunal found that dismissal was within the range of reasonable responses and was therefore fair. In doing so, it took into account Mr Kubilius’ refusal, his lack of remorse and also the fact that he was banned from returning to the customer’s site. Whilst this decision is not binding on other employment tribunals, it does demonstrate that tribunals are prepared to find, in principle, that dismissals for failing to comply with COVID safety rules can be fair.

An important point to note in this case is that, although the client’s written site rules had not been updated, Mr Kubilius had been repeatedly asked to wear a mask and refused. Had he simply been spotted on site without a mask, and dismissed on that basis, the dismissal would almost certainly have been unfair. The key factor here was the employee’s refusal to comply with a repeated, reasonable request. As such, it is important that employers ensure that their rules and procedures are clear and that they have been brought to the attention of employees. If not, a tribunal is more likely to find that a dismissal is unfair.

SOSR dismissals

It is interesting to note that, at the employment tribunal hearing, the employer relied on two potential reasons for dismissal — misconduct, or alternatively, an SOSR dismissal (Some Other Substantial Reason), due to the client banning Mr Kubilius from its site. Whilst the tribunal held that Mr Kubilius was dismissed for misconduct, it reminds us that employers can, in certain circumstances, fairly dismiss an employee due to:

• an employee being banned from a client’s premises; or
• pressure from a third party, such as a client or supplier, to dismiss.

These scenarios frequently arise when employees carry out the majority of their duties at a client’s premises. Examples include cleaners, security guards and IT staff, where these services are sub-contracted out.

During the pandemic, it is anticipated that the number of third party pressure dismissals will increase as employees either struggle or refuse to comply with third parties’ COVID-safety rules. Issues that may arise include refusals/failures relating to PPE, temperature tests, COVID testing and social distancing to name but a few.

Where a client is not calling for the dismissal of the employee, but is refusing to allow them back onto their premises, it may be fair to dismiss the employee if there is no suitable alternative work. The employer should consider alternatives, but if no reasonable alternative exists, it may ultimately be fair to dismiss.

Where a third party is actively calling for an employee to be dismissed, or the employer feels pressured into doing so, it may still be fair to dismiss the employee, even if the employer does not otherwise believe that there are grounds to dismiss.

In the majority of circumstances, the third party’s reason for calling for the employee to be dismissed is of limited relevance. The key consideration is how important the third party’s business is to the employer and the risk of losing that business if the employer refuses to dismiss the employee. Before dismissing, employers need to consider the injustice to the employee and consider what, if any, steps could be taken to alleviate any such injustice. However, if an employee’s contract of employment makes it clear that a third party could have the employee removed, an argument in relation to injustice is less likely to succeed at tribunal. As such, where employees are based or work frequently at a client’s premises, consideration should be given to including such a clause in their contract of employment.

In certain circumstances, it might be appropriate for an employer to ask the client to reconsider their request to dismiss, for example, by agreeing to redeploy the employee to a different client (if such a role exists), or by suggesting a lesser penalty coupled with training, as possible alternatives to dismissal. However, if the very fact of asking the client to reconsider would risk losing their business, it may be reasonable to decide not to do so. Every case is different and will turn on its own facts.

Clearly, where an employee is failing or refusing to comply with the rules and it is the employer who is considering dismissal, with no pressure from a third party, a rigorous, fair procedure must be followed. There may be valid reasons why an employee has failed to comply with COVID-safety rules, for example, due to a pre-existing medical condition or disability. It is therefore vital that a reasonable investigation and disciplinary process are undertaken prior to any decision to dismiss. A failure to do so could lead to costly and disruptive employment tribunal claims, including unfair dismissal and discrimination.