For as long as the pandemic continues, businesses will have their own COVID-19 safety protocols in place. These rules inevitably differ across businesses because what is deemed proportionate to mitigate workplace risk must depend on the nature of the business, how it operates, its size and location. This divergence in COVID-19 safety rules may give rise to an issue of significant commercial relevance. Let’s suppose that a major client of an employer implements a policy requiring masks to be worn on their site, or perhaps requires those on site to be double vaccinated; if an employee refuses to follow the client’s policy, this risks straining commercial relations between the employer and its client.
The legal question this situation raises is whether it is reasonable for an employer to dismiss an employee because of their refusal to comply with a key client’s safety policies. The Employment Tribunal (ET) provided some guidance on this earlier this year in Kubilius v. Kent Foods. The facts are important. The claimant was employed by Kent Foods as a delivery driver. He spent most of his time driving to and from Tate & Lyle’s Thames Refinery site – Tate are one of Kent Food’s major clients. To mitigate COVID-19 risk, Tate introduced an unwritten policy requiring masks to be worn on site at all times. In May 2020, the claimant attended Tate’s site and was spotted in his vehicle without a mask and with his window open. He was informed by Tate employees of the new policy, yet refused repeated requests to don his mask, insisting that the law did not require him to. Tate subsequently banned the claimant from their site and informed his employer. The employer, after investigating the facts, and failing to persuade the client to remove the ban, ultimately dismissed the claimant. The ET held that they acted reasonably in doing so.
What is fascinating about this case from a legal point of view is that although the site ban made it impossible practically for the claimant to continue working for the employer, the ET held that the employer’s principal reason for dismissal was the employee’s misconduct; in other words, the employer themselves deemed the employee’s behaviour unreasonable and wasn’t just acting in response to third party (indirect) pressure from the client. The employer’s driver’s handbook instructed employees to follow client’s health and safety rules regarding PPE. This meant failure to follow the client’s instructions was, at the same time, a failure to follow the employer’s instructions as regards health and safety – something the employer took seriously. Moreover, the ET found that the lack of remorse shown by the claimant during the investigation further contributed to the employer’s decision to dismiss; the employer was concerned that even if the client were to renege on the site ban, the claimant might continue to frustrate the employer’s key client relationships, which were a commercial imperative. Thus, this case (although not binding) suggests that employers who implement policies requiring their employees to follow client instructions regarding COVID-19 safety measures may, depending on the circumstances, be entitled to dismiss employees who fail to follow those instructions and in doing so harm commercial relations with a main client. An employer’s unease about the prospect of the employee continuing to damage client relationships, premised on employee misconduct during the disciplinary process, may also contribute to a tribunal’s finding that dismissal was fair.
The employer might alternatively wish to dismiss an employee purely because of third party pressure. In such situations, the employer does not share the client’s belief that the employee misconducted themselves; the employer simply has no choice but to dismiss to prevent damaging their relationship with a major client. There is a long line of case law recognising that third party pressure on the employer to dismiss may be some other substantial reason (SOSR) for dismissal – indeed, in Kubilius, the employer had raised this ground in the alternative. The Employment Appeal Tribunal (EAT) gave guidance in Henderson v. Connect South Tyneside on what employers must do before their dismissal is considered fair in such situations:
‘…if the employer has done everything that he reasonably can to avoid or mitigate the injustice brought about by the stance of the client – most obviously, by trying to get the client to change his mind and, if that is impossible, by trying to find alternative work for the employee – but has failed, any eventual dismissal will be fair’.
In this passage, the EAT appears to justify an employer dismissing an employee regardless of the reasonableness of the client’s grounds for calling for dismissal, provided the employer did as much as reasonably practicable to avoid any injustice to the employee. This tends to suggest that employers may be entitled to dismiss employees when a major client of theirs, who requires site attendees to be double vaccinated for example, prevents an employee not so vaccinated from attending their site, even if, perhaps, the client’s policy is substantively unfair because the employee had a legitimate reason for not being vaccinated. What is of central importance to tribunals and courts when deciding whether dismissal is reasonable in such circumstances is whether the employer felt no choice but to dismiss given the importance of the client to their business and the pragmatic need to prevent relations souring. Employers are not being judged for the reasonableness of their client’s beliefs, but for how they endeavour to eliminate injustice to their employees.
It ought to be noted that in Henderson itself (and in the earlier case of Dobie v. Burns), the employer’s contract with the third party – in both cases the council – reserved the right for the third party to request that the employer dismiss an employee. Thus, it is perhaps arguable that where employers are contractually bound to dismiss employees upon request by a third party, the steps they must take to avoid injustice to the employee may be less demanding, but nonetheless, to mitigate the risk of costly and lengthy tribunal proceedings, companies should always do as much as reasonably practicable to ensure the employee can continue working for either the client or in another capacity. Such procedural fairness would make it difficult to impugn the reasonableness of the employer’s dismissal.
In summary, the commercial incentive to maintain good relationships with major clients is accepted by the courts, whether or not the employer shares a concern over the reasonableness of the employee’s conduct. Employers might therefore be justified in dismissing employees who fail to follow a client’s COVID-19 safety protocols; however, much depends on the particular facts of the case. It would be prudent for businesses to do as much as reasonably possible to alleviate injustice to the employee before resorting to dismissal.
W Legal are able to provide any assistance in this area and would love to answer any questions that either an employer or employee may have.
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