Recent Employment Tribunal Case & Information Updates – 31/03/2021

We thought we would share a recent case heard at the ET (Employment Tribunal) and just some reminders on statutory payments that come into effect early April.

The sun is shining, well ok for a few days at least. We can all start to look forward to the brighter and longer evenings and we are sure that everyone will welcome this after a hard winter and even harder lockdown.

Before we all head off for the Easter bank holiday long weekend, we thought we would share a recent case heard at the ET (Employment Tribunal) and just some reminders on statutory payments that come into effect early April.



Kubilius v Kent Foods Ltd

The first ET case has been heard (February 2021) relative to COVID-19 and in particular an employee’s conduct for refusal to wear a face mask. In the ET case a lorry driver was fairly dismissed for refusing to wear a face mask while on a client’s premises but still in his cab.

The background to this case is that Mr Kubilius was employed as a lorry driver for Kent Foods (KF) and employed since July 2016 until his dismissal for gross misconduct on 25 June 2020. KF’s major customer (and important to understand this as it based some of the decision taken by the ET) was Tate & Lyle and approximately 90% of the company’s work was to and from T&L’s Thames Refinery site. KF’s employee handbook stated that ‘customer instruction regarding PPE requirement must be followed’.

Two months into the first national lockdown, T&L decided that face masks had to be worn by all staff at its Thames site and visitors to the site were issued with them at the gatehouse. During a delivery in May to the T&L site, Mr Kubilius ‘dug his heels in’ and ignored T&L’s requests for him to put on a mask in his cab. Managers at the site were concerned he could pass on the virus while speaking out of the window. But Mr Kubilius argued that his cab is his home and refused to comply but, he was quite prepared to wear a mask outside his cab. At the time the incident took place, government guidance stated that ‘wearing a face covering is optional and is not required by law including in the workplace’. T&L subsequently banned Mr Kubilius from its site. After an investigation and disciplinary process, Mr Kubilius was summarily dismissed for gross misconduct. He claimed unfair dismissal.

The tribunal decision was that his unfair dismissal claim was rejected on grounds of his conduct;-

His refusal to comply with an instruction to wear PPE on a client site. KF genuinely believed that Mr Kubilius was guilty of misconduct having investigated facts which were not disputed and it had acted reasonably in treating the alleged misconduct as a sufficient reason for dismissal (thus satisfying all the elements of s. 98 of the Employment Rights Act 1996). While another employer might have chosen to issue a warning, dismissal fell within the range of reasonable responses open to them.

There were three issues that influenced the tribunal’s decision:

1) the importance of KF maintaining good relationships with its clients

2) the continued insistence by Mr Kubilius that he’d done nothing wrong, which caused his manager concerns as to his future conduct, and

3) the fact that Mr Kubilius couldn’t continue his contractual role because T&L had banned him from their site.

Mr Kubilius may appeal the decision and although this is not binding (as its only at ET) this may affect other decisions.


Uber BV v Aslam

Everyone waited with bated breath on this case which took six years to reach a decision following its travel right up to the Supreme Court. As well reported Uber drivers have been classified as “workers” and not “self-employed” and therefore entitled to rest breaks, NMW (national minimum wage) and holiday pay. Uber would not accept that the drivers were workers and maintained that they were self-employed until this judgement was reached.



The outcome of the Uber case Supreme Court decision will no doubt impact on other “gig” economy cases which are Stojsavljevic v DPD Group Ltd currently on appeal to the EAT (Employment Appeals Tribunal) and Addision Lee v Lange which is to be heard on appeal at the Court of Appeal.



In one of our earlier 2021 newsletters we confirmed the increase in statutory rates, but just a reminder.

1 April National Living Wage – will now include those age 23 and above threshold from the current age of 25. The new rate will be £8.91 per hour.

4 April – Statutory maternity, adoption, shared parental, paternity, and parental bereavement pay increase to £151.97 per week

6 April – SSP rises to £96.35 per week.

6 April – Statutory Redundancy Payment increases to a capped weekly amount of £544.



Our offices will close at 5pm on Thursday 1 April and will reopen at 8.30am on Tuesday 6 April.


The team at Black Mountain wish you all a happy Easter and a welcomed long weekend.

Black Mountain Group

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