If it is our policy for all employees to wear a face covering whilst at work and one employee refuses to wear one, can I terminate their contract?
Whether you can dismiss an employee (without risk) because they refuse to wear a face covering, will depend on the reason(s) why they refuse to wear one.
In the first instance, the Government have not stated that face coverings are mandatory in office settings. In addition, whilst Government guidance states wearing a face covering in an enclosed space can help to protect individuals and those around them from COVID-19, particularly if social distancing is not possible, they have also stressed, that face coverings should not be used as a substitute for the other more effective ways of managing workplace risks. For example, screens/barriers between employees, increased handwashing and staggered employee start-times.
If you have made it a requirement for all employees to wear a face covering whilst at work, there a few factors you should consider before deciding to dismiss an employee for refusing to wear a face covering: These are as follows:
- whether your employee is exempt from wearing a face covering because they have a disability as defined under the Equality Act 2010, and if they do have a disability, whether you have considered your legal duties to provide them with reasonable adjustments. For example, allowing them to work from home, in another role with limited interaction with others, in a breakout room, or allowing them to wear clear visor type face coverings or a face shield.
- if an employee has a disability which prevents them from wearing a face covering, whether the requirement to wear a face covering, outweighs your requirement not to discriminate on the grounds of disability because as per the Equality Act 2010:
– it is an occupational requirement
– the application of the requirement is a proportionate means of achieving a legitimate aim.
- the employee’s length of service. If they have been employed for at least 2 years, they are protected from unfair dismissal and you should not dismiss them unless you have a fair reason to do so, i.e., redundancy, poor performance, capability, some other substantial reason, or because of a legal obligation;
- whether the employee’s non-compliance amounts to insubordination and the refusal to wear a face covering is so serious that it can be classed as gross misconduct; and
- whether the health and safety of your other employees is largely at risk or completely compromised because of one individual who refuses to wear a face covering whilst at work.
If you are not based in England or Northern Ireland, but are based in Scotland or Wales, please see the Public Health guidance on face coverings in: Scotland and Wales, which will also assist you in determining on whether you can dismiss an employee for non-compliance.
Before you consider dismissing an employee for refusing to wear a face covering, you should consider all of the above and its strongly recommended that you seek advice before making a decision.
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