Making reasonable adjustments for mask exempt employees - refusal to work in individual workspace

Posted in : Seamus Says - Employment Law Discussion on 5 March 2021
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Reasonable adjustments; Mask exemptions

Our policy is that all employees must wear masks while at work. One employee cannot wear a mask and we've created an individual workspace for them as a way to keep them and others safe. However, they refuse to work in this space citing loneliness, and have gone off work on stress. How can we handle this?

Now, I know there was another case that came in of a lorry driver who was dismissed because he refused to wear a mask while he was delivering to a supplier. So maybe can give us a bit of background, then look at this particular thing here where you're trying to make these reasonable accommodations for somebody who cannot wear a mask for medical reasons and they're just refusing to accept it. So maybe deal with both of those, Seamus.

Seamus: Yeah. Look, I think a very interesting case. It's the first case that I've come across, and it's the case of Kubilius and Kent Foods Limited. It's an Employment Tribunal case in East London where it relates to. So it is a case of first instance. It was heard on the 19th of January, so it's a very recent decision that has been issued, and the powers that be at Legal-Island, probably Scott, managed to get their hands on this case. And it's the first case that I've come across where we've actually had a tribunal give some indication and give a judgment in relation to some of the issues arising as a result of COVID, so if you get a chance to look at it, certainly, I think it's available on Legal-Island's website there. It's an interesting case.

The background of this was a lorry driver that worked for Kent Foods Limited, he was delivering products to a customer of Kent Foods Limited, and when he arrived at the customer's business at the premises, and he was inside his cab and his lorry, he wasn't outside of it, but he refused to put his mask on when asked by the staff at the employer's customer. And he refused to put his mask on. He said he was in his own cab and he didn't have to put it on. Now they did put forward an argument that because he was raised up high in his cab and when he was talking down to them, the droplets from his mouth could have come out. But they very much have taken, the customer had taken a strong stance in relation to masks. They asked anyone that was attending the premises to wear masks, and that was going back as far as April and June 2020. And this employee refused to wear the mask, and there was a complaint filed on him from the employer's customer through to the employer.

And ultimately, he was dismissed. He was dismissed for some other substantial reason and he brought a claim in the Employment Tribunal. The long and the short of the claim is that the tribunal found in favour of the employer. And what they said was that it was really the employee's continued insistence that he had done nothing wrong. The employee kept putting up these arguments to say, "I've done nothing wrong." And very interestingly, there wasn't a policy, a written policy, and procedure by the employer in relation to having to wear masks. They had said that they hadn't written down policy because it was a temporary measure that they hoped that they were bringing in. But it was sufficient enough even without there being a written policy for the tribunal judge to decide that the dismissal fell within the bounds of reasonable responses as it was picked.

And specifically, what he said was that there was concerns in and around the employee's continued insistence that he done nothing wrong and his lack of remorse which made the employer's decision to dismiss fair and reasonable response. So I think it's just an indication, certainly, Scott, as I would see it from the tribunal, I know it's only the first case that we've got and I know it's a case of first instance, and all of these cases will depend on the circumstances, but it's an indication that the tribunal are willing to take a firm view with these things.

Scott: So that was the case of what we might call a thran employee who refuses what effectively is a reasonable instruction, which is when you're on their premises, follow their rules, and if you don't do that, we're going to sack you. But what about the case here where somebody's saying, look, I know you're making reasonable adjustments for me, but I can't have a mask in my face or I can't work there because I'm lonely. Is it different had this chap been disabled and couldn't have worn a mask? Might that have been then tough to say well, in that case, we might have to pull you out? Is that more plausible?

Seamus: The circumstances are look, you have an employer who does appears to have a medical condition, can't wear a mask, and look, it's about looking at what are the reasonable adjustments that could be made here. Take out of the fact whether there's disability or not, but when they can't wear a mask due to medical reasons. Look for the reasonable adjustment. If there isn't a reasonable adjustment to be made at the facility of the person attending work, then you maybe need to look at putting the employee on furlough or making some sort of decision in that respect. This employee specifically has said due to loneliness that they don't wish to be placed in part of the office where they're alone.

I think that there's a subjective element when you need to know a bit more about maybe if these mental health issues with the employee or what the problem is, but look, that we could all say that we're lonely at work at the minute if we're working from home and we're feeling isolated. Some might enjoy that aspect more than others. Other people really like the attendance of work and the social aspect of it and everything else. But it doesn't seem to me, I mean, I think if I was a judge looking at this, I'd need to know the specific circumstances. But somebody to say that they are lonely, the fact that they've gone off on stress, I think the employer still needs to give careful consideration to it and see if there are alternative reasonable adjustments that could be made. Is there ability to put screens up instead and maybe have the employee move closer in, but have the screen up whereby they can still have that social interaction? But two very different scenarios here. You have one, somebody is refusing to wear the mask, and then you have somebody that can't wear the mask because of medical reasons.


This article is correct at 05/03/2021

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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