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achrn  
#1 Posted : 16 April 2021 14:58:23(UTC)
Rank: Super forum user
achrn

This looks interesting:

https://www.ioshmagazine.com/2021/04/16/mask-refusing-delivery-driver-fairly-dismissed-rules-tribunal

and

https://www.bailii.org/uk/cases/UKET/2021/3201960_2020.pdf

Here an employment tribunal upholds a dismissal on the grounds that a Covid mask is PPE, so a refusal to wear said Covid mask is a refusal to comply with a PPE instruction.

Roundtuit  
#2 Posted : 16 April 2021 15:18:55(UTC)
Rank: Super forum user
Roundtuit

Once again our Judiciary covers itself in glory and proves how out of touch they are with reality.

IF, as stated, a Covid mask is PPE then perhaps they can enlighten the whole of Europe as to which harmonsied standard such a device should be manufactured in accordance with to comply with the PPE regulations - lord knows it has long been debated on these forums.

thanks 6 users thanked Roundtuit for this useful post.
acetylene on 25/04/2021(UTC), webstar on 05/05/2021(UTC), kmason83 on 05/05/2021(UTC), acetylene on 25/04/2021(UTC), webstar on 05/05/2021(UTC), kmason83 on 05/05/2021(UTC)
Roundtuit  
#3 Posted : 16 April 2021 15:18:55(UTC)
Rank: Super forum user
Roundtuit

Once again our Judiciary covers itself in glory and proves how out of touch they are with reality.

IF, as stated, a Covid mask is PPE then perhaps they can enlighten the whole of Europe as to which harmonsied standard such a device should be manufactured in accordance with to comply with the PPE regulations - lord knows it has long been debated on these forums.

thanks 6 users thanked Roundtuit for this useful post.
acetylene on 25/04/2021(UTC), webstar on 05/05/2021(UTC), kmason83 on 05/05/2021(UTC), acetylene on 25/04/2021(UTC), webstar on 05/05/2021(UTC), kmason83 on 05/05/2021(UTC)
A Kurdziel  
#4 Posted : 16 April 2021 15:30:28(UTC)
Rank: Super forum user
A Kurdziel

Yes, I saw  that...

Well of course they are wrong its not PPE as PPE is what protects the wearer from  the hazard  not bystanders from the hazard caused by the wearer.   The case if you hadn’t read  it is about a lorry driver who was told that he had to wear a face covering on a site he was visiting  even while he was in his cab. He refused and so was kicked off the site. His employer then sacked him as the company’s main business was making deliveries to that site. He argued that he was not obliged to  wear the mask while has was in the cab. Interestingly the manager of the site was an expert in the spread of covid 19 when he tried to explain why he insisted that the guy  wear the mask in the cab:”  ‘with no mask on, all the droplets from his mouth as he spoke were going to land on people’s faces due to his elevated position up in the cab’.” Well of course he was not but that’s what he said.

The whole thing is a bit amateurish but essentially it boils down to whether  the request to wear a face covering was reasonable. Its a bit like those sites where they insist that if you don’t wear full PPE at all times you will be told to leave. From the H&S point it might not make sense but it can be regarded as a reasonable request and  so  they are in their right to insist that you comply. As its only an employment tribunal it will not establish any sort of binding precedent so face covering will not be treated a PPE  in future legal cases.

 

 

thanks 2 users thanked A Kurdziel for this useful post.
CptBeaky on 19/04/2021(UTC), kmason83 on 05/05/2021(UTC)
stevedm  
#5 Posted : 16 April 2021 16:26:10(UTC)
Rank: Super forum user
stevedm

hang on guys...yet again there is glossing over a wee bit of detail here...the tribunal didn't say covid mask was ppe it was the client and the drivers employer who referred to this as PPE and report merely follows along with those statements...they just upheld that he was dismissed fairly for not following the instructions, although I would have probably challenged that if I was his lawyer...attention to the detail is important otherwise you start writing for the daily mail... :)

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johnc on 16/04/2021(UTC), chris42 on 16/04/2021(UTC), Mark.Poole on 29/04/2021(UTC)
achrn  
#6 Posted : 19 April 2021 08:38:24(UTC)
Rank: Super forum user
achrn

Originally Posted by: stevedm Go to Quoted Post

yet again there is glossing over a wee bit of detail here...the tribunal didn't say covid mask was ppe

The judgement conclusions describe the incident as "a single incident of refusing to comply with a PPE instruction", so actually yes the tribunal does describe it as a PPE matter.

CptBeaky  
#7 Posted : 19 April 2021 09:23:31(UTC)
Rank: Super forum user
CptBeaky

I read the case notes it is seems that whether or not face coverings were/are PPE was not relevant to whether the tribunal upheld his dismissal. The person was dismissed for refusing to comply with a customers safety preocedures, failing to maintain good customer relations, the absence of other work available due to this and the lack of remorse.

The person was asked by a customer to wear a face covering whilst he was on their site. He refused, because he "was in his on environment" (i.e in his lorry) and there was no legal basis to insist on him wearing one. He was banned from attending that site again, which was 90% of his work, therefore he had no job left for him.

We can, of course, argue whether face coverings are PPE, but it is not that relevant, since he was refusing to follow site safety rules. If the site safety rules asked him to sound his horn before turning a corner, could he refuse as there is no legal basis? He was given several chance to wear the face covering, but refused. What did he expect the outcome would be?

"..... (The) Claimant’s misconduct and lack of remorse were more important factors that the T&L site ban in reaching his (the employer) decision. Even if the site ban had been lifted, he (the employer) would not have trusted the Claimant not to act similarly in future, potentially endangering the Respondent’s good relationship with other customers."

thanks 2 users thanked CptBeaky for this useful post.
A Kurdziel on 19/04/2021(UTC), Mark.Poole on 29/04/2021(UTC)
achrn  
#8 Posted : 19 April 2021 10:47:10(UTC)
Rank: Super forum user
achrn

Originally Posted by: CptBeaky Go to Quoted Post

I read the case notes it is seems that whether or not face coverings were/are PPE was not relevant to whether the tribunal upheld his dismissal.

I agree that the tribunal reasoning was that it was about failing to comply with an instruction.  I'm less convinced that it's irrelevant whether it was or not PPE - the 'Driver's Handbook', which is a key document and cited in the 'Findings of fact' is quoted as requiring that "customer instruction regarding PPE requirement must be followed", so if the mask was not PPE, the driver was not in breach of that requirement.

The driver was less clearly in breach of the other stated company rules (from the 'Employee Handbook') - "be courteous and pleasant to clients/suppliers at all times" and "all reasonable steps to safeguard your own health and safety and that of any other person".

The respondent's submission highlighted only that the 'Driver Handbook' contained "an obligation to follow health and safety instructions on customer sites".  This is a broadened definition from what is actually quoted, and does not reference the general Employee's Handbook requirements. (Though I note there is an alternate submission about the subsequent site ban, this is explicity stated as not the factor with most weight).

I remain of the opinion that this tribunal finding depends upon an assumption that a face covering is PPE.

CptBeaky  
#9 Posted : 19 April 2021 10:56:34(UTC)
Rank: Super forum user
CptBeaky

It my be that the tribunal findings were on the (wrong) assumption that face coverings are PPE. However, as A Kurziel, this will not be binding in other rulings. The only thing to really take away from this is the asking someone to wear a face covering is seen as both an optional part of H&S and a reasonable request. I would find it hard to argue against either of those statements, as much as I would argue against SARS-COV-2 being a hazard specific to a workplace, as opposed to a public health issue.

thanks 1 user thanked CptBeaky for this useful post.
Alan Haynes on 19/04/2021(UTC)
A Kurdziel  
#10 Posted : 19 April 2021 12:36:11(UTC)
Rank: Super forum user
A Kurdziel

Thinking about this there is only one legal definition of PPE and that is in the PPE regs: “personal protective equipment” means all equipment (including clothing affording protection against the weather) which is intended to be worn or held by a person at work and which protects him against one or more risks to his health or safety, and any addition or accessory designed to meet that objective.” -So it protects the wearer from the risk.  I can’t see any court upto and including the Supreme Court changing this definition to include face covering to prevent the spread of  Covid-19.

AcornsConsult  
#11 Posted : 19 April 2021 17:19:47(UTC)
Rank: Super forum user
AcornsConsult

As I read it, the site rules required them to wear the face covering, regardless of it being phrased as PPE or anything else and regardless of the legal position.  In much the same way as the site probably requires drivers to wear a seat belt, even if its not on a road and not a legal requirement.   If peopel fail to follow site rules and they are sanctioned by being banned from site, then so be it.  It's their site and their rules.  As the site was one of the employers key clients and the employee couldn't go on site, it was right he was dismissed. 

Roundtuit  
#12 Posted : 19 April 2021 21:32:17(UTC)
Rank: Super forum user
Roundtuit

We forbid the wearing of shorts at our sites.

The Post Office uniform includes shorts.

We are a Post Office "customer".

Based on the logic in your post ......

This is the long standing problem with having made public health an H&S issue - you need clear unambiguous regulation properly enacted and not at the knee jerk reactions of clip board clowns or PCSO's.

thanks 2 users thanked Roundtuit for this useful post.
kmason83 on 05/05/2021(UTC), kmason83 on 05/05/2021(UTC)
Roundtuit  
#13 Posted : 19 April 2021 21:32:17(UTC)
Rank: Super forum user
Roundtuit

We forbid the wearing of shorts at our sites.

The Post Office uniform includes shorts.

We are a Post Office "customer".

Based on the logic in your post ......

This is the long standing problem with having made public health an H&S issue - you need clear unambiguous regulation properly enacted and not at the knee jerk reactions of clip board clowns or PCSO's.

thanks 2 users thanked Roundtuit for this useful post.
kmason83 on 05/05/2021(UTC), kmason83 on 05/05/2021(UTC)
CptBeaky  
#14 Posted : 20 April 2021 07:33:01(UTC)
Rank: Super forum user
CptBeaky

Originally Posted by: Roundtuit Go to Quoted Post

We forbid the wearing of shorts at our sites.

The Post Office uniform includes shorts.

We are a Post Office "customer".

Based on the logic in your post ......

Quite frankly, yes you can tell the post office worker they are not allowed on your site with shorts on, your site, your rules. Whether this would result in the sacking of the worker is unlikely, as I am sure the Post Office aren't too bothered if you don't receive your parcels, as they already got paid, and you have an alternative (collect them/drop them off yourself).

And let us not forget the driver, in this instance, was given a mask to wear as he entered the site. So this would be akin to you given the postal worker some over trousers to wear for their safety and them refusing them.

Kate  
#15 Posted : 20 April 2021 09:31:32(UTC)
Rank: Super forum user
Kate

Would this be a fair summary?

The customer's H&S rules included the wearing of a face covering.

The driver refused to comply with this rule.

The tribunal upheld the dismissal on the basis that the driver refused to comply with the customer's H&S rules.

The tribunal did not address the question of whether or not face coverings are PPE.  Like 99% of people who now think they know what PPE is, they assumed that face coverings are PPE.  As they did not even consider this question, there is nothing to take from this case about whether or not face coverings are PPE.

Something doesn't have to be PPE to be a H&S rule (or even be good H&S to be a H&S rule - there are many very silly H&S rules out there).

The matter of principle in this case is that refusing to comply with a customer's H&S rule can be grounds for dismissal.  Well you would think so, wouldn't you?

A Kurdziel  
#16 Posted : 20 April 2021 09:47:13(UTC)
Rank: Super forum user
A Kurdziel

You could argue that a requirement for posties not to wear shorts on site is not a reasonable request bit it is also complicated by the fact that the person receiving the mail is not actually a “customer”. The post office , privatisation not withstanding” is statutory common carrier which means that they by law must deliver letters to each and every address and you must allow them to do so, whether or not  they are wearing shorts.

achrn  
#17 Posted : 20 April 2021 09:59:03(UTC)
Rank: Super forum user
achrn

Originally Posted by: Kate Go to Quoted Post

The tribunal upheld the dismissal on the basis that the driver refused to comply with the customer's H&S rules.

But the driver maintains he was not told of this rule, and the driver's employer's rules don't mandate that drivers comply with all site H&S rules, only with site PPE rules.

Quote:

The tribunal did not address the question of whether or not face coverings are PPE.  Like 99% of people who now think they know what PPE is, they assumed that face coverings are PPE.  As they did not even consider this question, there is nothing to take from this case about whether or not face coverings are PPE.

Something doesn't have to be PPE to be a H&S rule (or even be good H&S to be a H&S rule - there are many very silly H&S rules out there).

Indeed, but the driver's company rulebook doesn't say comply with H&S rules, it says comply with PPE rules. The rule about face coverings will only be a breach of the driver's company's rules if face covering is PPE.

Quote:

The matter of principle in this case is that refusing to comply with a customer's H&S rule can be grounds for dismissal.  Well you would think so, wouldn't you?

Can it be a grounds for dismissal even if the conmpany rules don't specify it as such? I don't know employment law in that much detail.

CptBeaky  
#18 Posted : 20 April 2021 10:16:21(UTC)
Rank: Super forum user
CptBeaky

The handbook stated

"The company's success is built upon its relationship with its clients/suppliers. You should, therefore, be courteous and pleasant to clients/suppliers at all times. Rudeness or off-hand treatment of clients/suppliers will not be tolerated, however badly the client/supplier may have behaved. If the relationship between yourself and a client/suppliers is deteriorating you should immediately seek the help of your line manager."

The driver was rude and discourteous. If he had a problem he should he spoken to his line manger when he returned. His behaviour meant that he was banned from a site, which meant there was no job for him.

As stated before, it was his misconduct and lack of remorse that cost him his job, not his failure to wear the face covering. If the driver had behaved the same way over a different issue the outcome would have been the same.

Kate  
#19 Posted : 20 April 2021 10:42:12(UTC)
Rank: Super forum user
Kate

If an employer does not explicitly say that its employees visiting customer sites must comply with customer H&S rules on those sites, it's because it goes without saying!  I think most employers would see this as misconduct, whether or not they think it's necessary to write down that it is.  And legally (I know because I was looking at this on the ACAS website the other day), you do not have to define every kind of misconduct in advance.  If I remember correctly, ACAS give the example that you don't have to tell your employees that stealing from their employer is a breach of contract and so grounds for dismissal, because it is so blatantly obvious.  Not following customer H&S rules when on their site, for me, also comes under this category of being so blatantly obvious you don't need to say it.

And in purely practical terms, not complying with the H&S rules of the customer site you are on is clearly grounds for the customer to exclude you from their site.  And if you are excluded from your customer's site you are unable to do your job there.  

Roundtuit  
#20 Posted : 20 April 2021 10:49:21(UTC)
Rank: Super forum user
Roundtuit

We are a "customer" of the Post Office as there is a collection contract for our business mail.

Originally Posted by: A Kurdziel Go to Quoted Post
a requirement for posties not to wear shorts on site is not a reasonable request

Thanks for spotting the real point - when seeking dimissal grounds must be both reasonable and lawful.

As to remorse if you have, in your mind, done nothing wrong how do you show remorse?

Roundtuit  
#21 Posted : 20 April 2021 10:49:21(UTC)
Rank: Super forum user
Roundtuit

We are a "customer" of the Post Office as there is a collection contract for our business mail.

Originally Posted by: A Kurdziel Go to Quoted Post
a requirement for posties not to wear shorts on site is not a reasonable request

Thanks for spotting the real point - when seeking dimissal grounds must be both reasonable and lawful.

As to remorse if you have, in your mind, done nothing wrong how do you show remorse?

biker1  
#22 Posted : 20 April 2021 12:05:38(UTC)
Rank: Super forum user
biker1

As with many cases, the facts and investigation showed a blurred picture, and the tribunal had to derive some sort of conclusion from this. Did I detect an error in employment date in the judgment? Tut, tut. Anyway, the mention of PPE shows an appalling level of understanding by the tribunal, not that I'm surprised at this. Tribunals are heavily weighted against the employee. The organisation can engage legal representation, whereas the ex-employee will be unable to do this. Until the tribunals achieve a level playing field in this regard, their judgments will always be questionable.

AcornsConsult  
#23 Posted : 20 April 2021 14:04:41(UTC)
Rank: Super forum user
AcornsConsult

Originally Posted by: biker1 Go to Quoted Post
<p>As with many cases, the facts and investigation showed a blurred picture, and the tribunal had to derive some sort of conclusion from this. Did I detect an error in employment date in the judgment? Tut, tut. Anyway, the mention of PPE shows an appalling level of understanding by the tribunal, not that I'm surprised at this. Tribunals are heavily weighted against the employee. The organisation can engage legal representation, whereas the ex-employee will be unable to do this. Until the tribunals achieve a level playing field in this regard, their judgments will always be questionable.</p>
Can you assist a bit further about employee having legal representation.... not aware they are not permitted?
Kate  
#24 Posted : 20 April 2021 14:19:10(UTC)
Rank: Super forum user
Kate

Legal representation is permitted, but not affordable, for the typical ex-employee who after all has recently lost their job and their income with it.

Holliday42333  
#25 Posted : 20 April 2021 14:55:18(UTC)
Rank: Forum user
Holliday42333

Originally Posted by: Kate Go to Quoted Post

Legal representation is permitted, but not affordable, for the typical ex-employee who after all has recently lost their job and their income with it.

I have known a couple of occasions where employers suddenly fall over themselves to settle when they know the employee is getting good legal representation.

biker1  
#26 Posted : 20 April 2021 15:15:52(UTC)
Rank: Super forum user
biker1

Originally Posted by: AcornsConsult Go to Quoted Post
Originally Posted by: biker1 Go to Quoted Post

As with many cases, the facts and investigation showed a blurred picture, and the tribunal had to derive some sort of conclusion from this. Did I detect an error in employment date in the judgment? Tut, tut. Anyway, the mention of PPE shows an appalling level of understanding by the tribunal, not that I'm surprised at this. Tribunals are heavily weighted against the employee. The organisation can engage legal representation, whereas the ex-employee will be unable to do this. Until the tribunals achieve a level playing field in this regard, their judgments will always be questionable.

Can you assist a bit further about employee having legal representation.... not aware they are not permitted?
As Kate pointed out, employees are perfectly entitled to have legal representation at tribunals, but the reality is that since most have lost their jobs, and even when still employed would struggle to afford such representation, a tribunal is not a level playing field, as the employee/ex-employee is representing themselves, and going up against legal experts up to barrister level on the employer's side. The strength of the employee's case is therefore usually going to be inferior to the employer in how it is presented. Sorry if I didn't make this clear.
John Murray  
#27 Posted : 21 April 2021 15:18:07(UTC)
Rank: Forum user
John Murray

Join. A. Union.
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Kate on 21/04/2021(UTC)
johnc  
#28 Posted : 21 April 2021 17:52:59(UTC)
Rank: Forum user
johnc

Many house content insurance policies have a section that gives access to help with legal matters including employment tribunals.
thanks 1 user thanked johnc for this useful post.
Kate on 22/04/2021(UTC)
firesafety101  
#29 Posted : 29 April 2021 11:09:16(UTC)
Rank: Super forum user
firesafety101

From outside the box I see this as a failure to obey a employer's instruction.  The driver was working for his employer who have their rules and whether or not they make sense it was a rule he should follow.

Not a H&S issue and the trubunal was wrong but he has no case to answer re his employer's rules.

I hope this doesn't enter into any kind of Case Law. 

craigroberts76  
#30 Posted : 05 May 2021 10:01:56(UTC)
Rank: Forum user
craigroberts76

I've only skim read the comments, but doesnt a piece of PPE have to have CE status and comply with regulations which are proven by testing and science to work? I dont think a face covering made from a table cloth will pass any testing.

achrn  
#31 Posted : 05 May 2021 12:10:00(UTC)
Rank: Super forum user
achrn

Originally Posted by: craigroberts76 Go to Quoted Post

I've only skim read the comments, but doesnt a piece of PPE have to have CE status and comply with regulations which are proven by testing and science to work? I dont think a face covering made from a table cloth will pass any testing.

Actually, I don't think PPE does need to be CE marked or comply with any standards - the selection of effective PPE is for the employer (who has a strict liability to ensure that it is effective, but not that it meets any particular standard or marking regime).

A Kurdziel  
#32 Posted : 05 May 2021 12:38:39(UTC)
Rank: Super forum user
A Kurdziel

Suppliers need to comply with the Personal Protective Equipment (Enforcement) Regulations 2018, which state that any PPE put on the market needs to be CE marked etc but  the PPE at Work regs which define the employer’s responsibility to supply to workers simply state that any PPE supplied must be suitable and ,of course as with any H&S requirement, it is for the employer to prove that, that is the case.

kmason83  
#33 Posted : 05 May 2021 17:25:03(UTC)
Rank: Forum user
kmason83

Originally Posted by: Roundtuit Go to Quoted Post
clip board clowns

I want to buy you a pint! just for this I love it! 

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