As the UK begins its route out of lockdown and workplaces start to reopen, employers must update workplace policies to ensure workers are clear on the rules on wearing the correct PPE, including facemasks, to comply with the new regulations, an employment lawyer has said.

Commenting on a recent case in which a Tribunal ruled an employee was fairly dismissed for refusing to wear a face mask at work, Faye Reynolds, employment lawyer at law firm Lodders has said the case demonstrates the importance of businesses getting all workplace policies bang up to date, to meet legal requirements, and avoid costly tribunal proceedings and disciplinary action.

In an article for Coventry & Warwickshire Chamber of Commerce, she said:

“During the COVID-19 pandemic, many employers may face a similar dilemma with employees following new regulations, or refusing to wear PPE as was the case in this recent Tribunal, which could necessitate disciplinary action. There has been a lot of discussion around to what extent safety measures can be imposed on employees to ensure a safe work environment for colleagues and customers. In this Tribunal – the first case of its kind – we have the decision on an employer’s scope to enforce wearing PPE in the workplace, and whilst this judgment is not binding, it is an indication of how future cases of this kind may be decided.”

The case in question - Kubilius v. Kent Foods Ltd – saw deliverer Deimantas Kubilius fired following an incident during the first national lockdown in 2020, when he arrived to make a delivery at a Tate and Lyle sugar refinery and ignored their requests for him to put on a mask in the cab of his HGV.

Kubilius was banned from the site but defended himself by pointing out that he was not required by law to wear a mask inside his cab but that he happily complied by wearing a mask when outside of his cab. The driver was sacked as a result of his behaviour; he then launched legal action against his company.

Reynolds explains:

“The case does demonstrate that if employers wish to take enforcement action against employees in similar situations, it is important they clearly communicate rules on the wearing of PPE in the workplace and consider the impact of any refusal to follow those rules on client relations. They must also consider the circumstances and follow a fair process when considering dismissal, and remember that it can be very costly to bring or defend an unfair dismissal claim.

“The background to this landmark case is that Kent Foods updated their employee handbook response to the COVID-19 pandemic to specify that drivers must comply with the PPE instructions at customers’ sites.

“The Tribunal recognised the decision to dismiss the driver was due to his failure to comply with an instruction set out in the handbook. It found the employer had acted reasonably in their investigations and, whilst some employers may have decided to issue a warning, it decided that dismissal was within the range of reasonable responses and was therefore fair.”

To make sure the most suitable type of PPE is chosen, the different hazards in the workplace should be identified to ensure the PPE will provide adequate protection against them. Employers should consider if the PPE takes account of the environmental conditions where the task is taking place, if it can be adjusted to fit the wearer correctly, and if more than one item of PPE is used, that they are compatible.