We supported SHL to run a compliant collective consultation process, following the need to...
Deimantas Kubilius worked for his employer, Kent Foods Limited (‘Kent Foods’), as a Class 1 Driver from 25 July 2016 until his dismissal without notice on 25 June 2020.
On 21 May 2020 Mr Kubilius had been making a delivery at Tate and Lyle’s Thames Refinery site, where he was asked to wear a mask inside the cab of his HGV as part of their new Covid rules.
Prior to 21 May 2021, Tate and Lyle had taken the decision that face masks should always be worn at this site by all staff as a safety precaution to reduce the risk of coronavirus infection. It did not update its written site rules to reflect this change because it was a temporary rule during the coronavirus pandemic. However, all visitors to the site were issued with facemasks at the gatehouse.
Mr Kubilius was surprised by the verbal instruction he was given on 21 May 2020 as there was no mention of this requirement in the written site instructions he had received on entering the site. In the words of Employment Judge Barrett, Mr Kubilius was a ‘details-oriented person’ and he “dug his heels in”. Having refused to wear the mask he was banned from the site on the grounds of non-compliance with health and safety rules. Tate and Lyle contacted Kent Foods about the incident. Before the disciplinary hearing Kent Foods wrote to Tate & Lyle in an attempt to persuade them to overturn the Claimant’s site ban but Tate & Lyle maintained their position.
Mr Kubilius was dismissed following a disciplinary hearing.
In its defence to the unfair dismissal claim that Mr Kubilius submitted to the Employment Tribunal, Kent Foods argued that Mr Kubilius was dismissed by reason of his conduct, or in the alternative because of third-party pressure which amounted to ‘some other substantial reason’ and that his dismissal was fair.
Considering the rationale of the disciplinary decision maker, the Tribunal found that the principal reason for dismissal was conduct. Mr Chinamo, Site Manager at Kent Foods, attached most weight in his decision to dismiss to Mr Kubilius’s refusal to comply with an instruction to wear PPE on a client site, together with his lack of remorse afterwards. The Kent Foods Drivers handbook imposed an obligation to comply with PPE instructions at a client site and by Mr Kubilius’s own account, he had refused to comply with such an instruction.
Our thoughts on the case
The case should be treated with caution and not taken as evidence that it will always be fair to dismiss following a single incident of refusing to comply with a PPE instruction.
A reasonable employer might have concluded that this instance of misconduct merited a warning rather than summary dismissal. However, the question for the Tribunal was not what another employer might have done but whether the decision taken by Kent Foods on this occasion fell within the range of reasonable responses and it was held that it did.
Mr Chinamo was entitled to take into account the importance to Kent Foods’ business of maintaining good relationships with its suppliers and customers. Mr Kubilius’s continued insistence that he had done nothing wrong caused Mr Chinamo to reasonably lose confidence in his future conduct. A further relevant factor was that it was not feasible for Mr Kubilius to continue in his contractual role due to the Tate and Lyle site ban which was a consequence of his conduct.
The case also serves as a helpful reminder that if posting a letter terminating an employee’s employment, the date of dismissal will be the date the letter is received and read.
In this case, the letter terminating Mr Kubilius’s employment on 16 June 2020 was originally sent to the wrong address and he did not receive it. Mr Kubilius telephoned Kent Foods on 25 June 2020 to enquire what the outcome of the disciplinary hearing was. The dismissal letter was then emailed to Mr Kubilius who received and read it on 25 June 2020. The date of dismissal was therefore 25 June 2020 and Mr Kubilius was entitled to be paid up to this actual date of dismissal and not only up to 16 June 2020.