According to Deimantas Kubilius v Kent Foods Ltd, yes.
An Employment Tribunal decided that the decision by Kent Foods Ltd to dismiss Mr Kubilius after he refused to wear his face mask during the first lockdown was fair.
The background of the case was, Mr Kubilius, a lorry driver for Kent Foods Ltd primarily transported goods to and from the Basildon depot and Tate & Lyle's Refinery. During the first lockdown T&L put a temporary Health & Safety measure in place, requiring all employers, contractors and visitors to wear a face mask when on-site to reduce the risk of Coronavirus infection.
After visiting T&L in May 2020, Kent Foods Ltd was notified that Mr Kubilius had been banned from the site after repeatedly refusing to put a face mask on when asked, stating that "he was in his cab and didn't have to". Mr Kubilius argued that wearing a face mask was not legally enforceable even in the workplace, and that he had done nothing wrong...
The fact that Mr Kubilius was unable to transport goods between the depot and T&L, materially affected his ability to do the job for which he was employed. Kent Foods Ltd investigated the situation - even attempting to persuade T&L to lift the ban - however, they found that his deliberate refusal to comply with H&S instructions was a "serious breach" of his contract. Which included his lack of remorse in regard to the incident and that, even if the ban had been lifted, they couldn't trust Mr Kubilius to suitably comply with client requirements in the future. So, in June 2020 they summarily dismissed Mr Kubilius.
Judge Barrett concluded that Mr Kubilius "lack of remorse" and the T&L site ban which had already damaged the customer relationship with Kent Foods Ltd, meant that a summary dismissal was in the range of reasonable responses and therefore the dismissal was fair.
What guidance does this case give us for the future? The ET is a first instance court, it's decisions aren't necessarily binding on future cases and so we don't know if this stance will stand in future COVID PPE cases. However, it appears that if there is a dismissal due to damage between the employer and a key customer due to refusal to wear a face mask or follow COVID-safety requirements then this decision may be followed in the future.
This could apply across all industries as the key concept was damage to customer relationships due to a refusal to follow reasonable H&S requests. However, it's worth noting that Kent Foods Ltd followed correct internal procedures, in investigating the incident fully before a decision was made to dismiss - so Employers should bear in mind that even a "serious breach" does not alleviate them of their contractual requirements in regard to disciplinary procedure.
There are a number of cases in the queue for an ET that are attempting to cite COVID-safety breaches as the reason for unfair dismissal. A H&S claim normally allows for a claim of automatic unfair dismissal so it will be interesting to see 1. how many of these cases end up in an ET and 2. what the results will be, and how they will shape the future of Employment Law at common law as they go.