An HGV driver that was dismissed after refusing to wear a face mask was not unfairly dismissed, a landmark tribunal ruling has found.
The case centred around a delivery driver that elected not to wear a face mask inside his cab while delivering to a supplier during the first national lockdown in the UK in Spring 2020.
The tribunal ruled that while the driver was not aware of his requirement to wear a mask at the time, his ‘continued insistence’ that he had done nothing wrong made the employer’s decision to dismiss him from his position a fair and reasonable one.
The driver was employed in his role as a Class 1 driver from 2016 until his dismissal without notice in June 2020. The majority of his work encompassed driving to and from a supplier’s site.
The supplier had made face masks mandatory at its site to reduce the risk of COVID-19 transmission but had not updated its written rules on site because it was a temporary rule. However, all visitors were issued with face masks upon entry.
The driver visited the site in May 2020 and was subsequently banned from attending the site after being asked repeatedly put his mask on and refusing to comply.
The incident was then investigated and statements were taken from staff at the supplier’s site, with the driver insisting that ‘this was not the law and it says nothing in the site rules’.
In investigating, the employer concluded that if the employee was banned from the supplier’s site, which comprised the majority of his role, then this would materially affect his ability to do his job.
Following a disciplinary meeting, the driver was dismissed and the decision was not appealed, after the employer decided that the deliberate refusal to comply with a health and safety instruction was a deliberate breach, while his ‘lack of remorse’ during the disciplinary process was also a factor in the decision.
In ruling, the Judge stated that the employee’s “lack of remorse and the practical difficulties caused by the site ban meant that the decision to dismiss fell within the range of reasonable responses and the dismissal was fair”.
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