If an employee refuses to wear a face mask at work, can I discipline or dismiss them?
In appropriate cases, disciplinary action and then dismissal may be fair if an employee refuses to wear a face covering in the workplace. For example, if this is in breach of the government guidance or if employer has issued a reasonable management instruction to this effect due to an identified health and safety risk.
It is important that employers use a fair and reasonable procedure when deciding whether to discipline and/or dismiss an employee and that its actions does not unlawfully discriminate against employees who have legitimate reasons for not wearing masks, such as those individuals who have health conditions like asthma.
Related FAQs
The guidance is clear that furloughed staff must receive no less than 80% of their reference pay (up to the monthly cap of £2500).
Employers cannot enter into any transaction with the worker which reduces the wages below this amount. This includes any administration charge, fees or other costs in connection with the employment.
Obtaining an employee’s Covid-19 test result will amount to processing personal data for the purposes of the General Data Protection Regulation 2016/679 (GDPR) and information about an employee’s health is a special category of data (sensitive personal data under the Data Processing Act 2018 (DPA)).
In accordance with the GDPR and DPA, there must be lawful grounds for processing such information. Most employers rely on employees’ consent to obtain medical information and process sensitive personal data and if the employee is unwilling to give consent, you will not normally be entitled to the information.
Special category data can be processed lawfully if it is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the data controller. Employers may be able to require an employee to disclose their Covid-19 test if there is a substantial public interest, such as ensuring that the employee self-isolate if they have a positive test. However, there is a risk that this measure could be considered disproportionate particularly if it is enforced on all employees as a blanket measure.
The Chancellor announced:
- A new “job retention bonus” for employers to access for furloughed employees subject to certain conditions being met – see below for more information.
- A “Kickstart scheme” which will directly pay employers to create jobs for any 16-24 year old at risk of long-term unemployment.
- Incentives for employers to take on apprentices.
As a result of the CJRS being extended, the Job Retention Bonus will no longer be paid in February 2021.
The reality of these unprecedented times is that enforcement of health and safety legislation by the HSE (particularly through the criminal courts) in relation to Covid-19 is an extremely unlikely outcome.
Interestingly, there is currently no ‘single’ technology to be used by the judiciary within the protocol. The court and parties must choose from a selection of possible IT platforms or audio/telephone hearing (further details available in the guidance e.g. Skype for Business, Microsoft Teams, Zoom etc.) The particular platform must be agreed at the outset of each case and then specified in the case management order. The guidance issued also sets out the basic principles which apply when conducting remote hearings.