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Covid-Employment WLA Post



An Employment Tribunal in East London, UK on February 12, 2021 upheld the order of termination of services of a lorry driver, terminated by his employer for refusing to wear Covid face mask inside the lorry driven by him.

In the case titled “Deimantas Kubilius Vs. Kent Foods Limited”, the Petitioner Kubilius, worked for the Respondent, TC Facilities Management Limited, from the year 2016 until he received the letter of his dismissal on June 25, 2020. On July 29, 2020, he presented a claim for unfair dismissal.

The Respondent, a distribution company transported food products from suppliers to customers. One of its major clients, a sugar company, Tate & Lyle (‘T&L’) which used to give approximately 90% of the business to the Respondent. Therefore, a good relationship with clients and suppliers was essential to the Respondent’s business. As per the safety rules imposed by the Respondent, its drivers were to mandatorily comply with the instructions concerning use of Personal Protective Equipment (PPE) while being at its customers’ sites.

On May 21, 2020 a complaint was received by the Respondent from T&L regarding an incident involving Respondent’s bulk liquid driver, who was repeatedly asked by a manager of T&L to wear a mask, being mandatory for every driver entering the site of T&L. However, the Petitioner (lorry driver) refused, stating he was in his lorry and did not have to wear it. As a consequence, the Petitioner was banned from T&L’s site on the grounds of non-compliance with health and safety rules.

Due to this incident, post suspension of services of the Petitioner, a disciplinary investigation took place to review the matter and conduct of the Petitioner, who was charged with misconduct of ‘failure to follow health and safety instruction for the staff entering a customer’s premises, to wear a face mask when on site’. During the investigation, deliberate refusal to comply with the health and safety instructions was recorded as a serious breach which was aggravated by Petitioner’s conduct and lack of remorse in the disciplinary hearing. This led to an order for dismissal of services being passed by the Respondent which was challenged by the Petitioner before Employment Judge.

The Employment Tribunal, after analyzing all facts and took into account the relevant circumstances and also found the overall disciplinary procedure being fair. It also took into account the Petitioner’s lack of remorse and the practical difficulties caused to the Respondent due to the T&L’s site ban. Accordingly, the Tribunal observed that the Respondent’s decision to dismiss fell within the range of reasonable response. It was observed that the Petitioner had health and safety obligations under the Employee Handbook (of Respondent) to take all reasonable steps to safeguard his own health and safety and also that of any other person who may be affected by his actions at work. Further, it was observed that the Petitioner had obligations, under the Employer’s Drivers’ Handbook, to follow a customer’s instructions regarding use of PPE. Furthermore, the Petitioner also had obligations under the Employee Handbook tomaintain ‘courteous and pleasant’ relationships with clients at all times.

Although the Employment Tribunal accepted that another employer might have chosen to issue a warning, it was satisfied that dismissal fell within the range of reasonable response in the circumstances, particularly given the importance of maintaining relations with the client, breach of health and safety policies of Petitioner, the practical difficulties of him being banned from the client’s site, and concerns arising from his continued insistence that he had done nothing wrong. Therefore, Petitioner’s dismissal by the Respondent was held fair by the Employment Tribunal.

Anhad Law Perspective

The Judgment is significant as it has been passed during COVID-19 period. Even though the judgment has been passed in the UK, in the current context, principles regarding need for compliance with health and safety aspects are relevant in several jurisdictions including India.

The Employment Tribunal’s decision highlights the significance of employers having well defined policies containing clear and concise rules on health and safety requirements and also about the behavior and/or conduct expected especially in cases wherein direct interaction with clients/customer is involved.

It is noteworthy that health and safety is being attributed a lot of importance even in India. In a recent judgement passed by Hon’ble Delhi High Court on March 08, 2021, in the matter ‘Court on its own motion Vs. Directorate General of Civil Aviation (DGCA) & Ors’, the Hon’ble High Court has issued elaborate guidelines for immediate compliance by all airlines as well as the DGCA regarding direction to offload any such passengers who violate the standard operating procedures (SOPs) or COVID-19 related inflight protocol especially regarding wearing of masks or keep the erring passengers on ‘no-fly’ regiment either permanently or for a stipulated, sufficiently long period.

In India, under the Factories Act and the proposed Occupational Safety, Health & Working Conditions Code, 2020 (“OSH Code”), employees are required to follow health and safety requirements.

OSH Code also mandates that if an employee comes to know that of any unsafe or unhealthy condition in the establishment, he shall report to the employer, health and safety representative or safety officer or agent (or manager in case of a mine), as soon as practicable, electronically or in writing or telephonically. On receipt of information from the employee relating to the existence of an imminent danger to health and safety of employee, the employer is required to take immediate remedial action in this regard. The employer, whether satisfied or not, is required to send a report forthwith of such actions taken, to the Inspector-cum-facilitator electronically or by registered post or speed post.

The Ministry of Home Affairs (MHA) and the Ministry of Health and Family Welfare (MoHFW), since ease of lockdown (including for the companies engaged in, manufacture of essentials goods or, rendering services, etc.), had mandated directives to be followed by employers at workplace(s) involving social distancing, temperature check, hygiene standards and use of masks at workplace, etc. Even as of now employers are expected to ensure compliance of prevailing standard operating procedures (SOPs) by at workplace.

The requirement of following health and safety standards is going to continue and employers would be expected to ensure that such compliances are followed at workplace or during the course of work. It is, therefore, important that employers consider incorporating a clearly defined health and safety policy including actions due to non-compliance.

Manishi Pathak, Founding Partner & Ranjan Jha, Partner

Disclaimer: These are personal views of authors and do not constitute a legal opinion, analysis or interpretation. This is an initiative to share developments in the world of law. No reader should act on the basis of any statement above without seeking professional legal advice.

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