Masks in the WorkPlace

An employer who requires employees to wear a face covering in an office environment should know that this is not a legal requirement, except in relation to a designated business within statutory rules.  Therefore, employers should consider the guidance on face coverings for the particular type of work involved as part of a risk assessment. 

In England, employees in the following sectors must wear a face covering:

Any employers who do not fall into one of the above categories of business should therefore be aware that asking their employees to wear a face-covering is a request. They should also be aware that face coverings are NOT in fact a replacement for other ways of managing risk. The most effective methods of preventing the transmission of a virus remain social distancing, regular hand washing, and cleaning.

Given the nature of the request to wear a face-covering in a business not within any of the above categories, and the fact that it is likely to be unrelated to an employee’s duties, an employer may wish to put the obligation on a contractual footing.  Employers may, therefore, decide to try and introduce a contractual requirement. However, a contract of employment is a legal agreement between the employer and the employee. Its terms cannot lawfully be changed by the employer without agreement from the employee (either individually or through a recognised trade union), and in any event, an employer should not breach equality laws when changing contract terms. See further here https://worksmart.org.uk/work-rights/pay-and-contracts/contract-changes/can-my-employer-change-my-contract-employment.

So if a change of contract has not happened, and the request to wear a face covering is just that, (ie the business concerned is not one within the list of mandatory businesses above), an employee may refuse the request to wear a face covering.

In such a case, the employer should consider the reasonableness of imposing sanctions if employees do not wear a face covering, against its health and safety obligations. In this regard an employee may wish to furnish their employer with several peer reviewed medical reports about the dangers of face coverings and mask wearing, which can easily be found online.

The employer should also consider whether face coverings are a proportionate way to address risk, taking into account the employer’s health and safety risk assessment, and perhaps the evidence that face coverings in fact represent a real threat to health. Specific objections by an employee should be considered on a case by case basis. 

Before enforcing a face covering policy within a business not caught by the legislation for the same, it may be beneficial and indeed good practice for employers to consult employees and their representatives to see what opinions are held. Employers should also consider taking legal advice before introducing such a policy to ensure they have taken all of the necessary steps.

Employers will generally be vicariously liable for the negligence of their employees, which means that an employer may be liable if someone’s health is damaged due to their employee’s negligent disregard of health and safety rules. In practice, however, it would be very difficult for anyone to show that they contracted Covid-19 because of an employee’s failure to wear a face covering.

In all cases, that is where it is not mandatory to wear a face covering at work, and even where it is, employers should be careful about introducing and enforcing blanket policies requiring employees to wear face coverings, as they could run the risk of unlawfully discriminating against people who have legitimate reasons for not wearing them. For example, it could be indirect disability discrimination to discipline an employee who suffers from COPD for not wearing a face covering if they are unable to do so because it would prevent them breathing properly. Employers must make reasonable adjustments for disabled workers, which might include allowing an employee with a valid reason to forego wearing a face covering.

There may be many circumstances in which, having undertaken their risk assessment, employers will need to carefully manage how they apply their policies in order to avoid discriminatory outcomes. In the above example of a person suffering from COPD, if the employer’s risk assessment had determined face coverings and/or PPE were mandatory for all staff, it would need to conduct a further risk assessment in relation to the employee with COPD. It might be that the employer would then need to consider implementing additional measures as reasonable adjustments to accommodate any disadvantage suffered by that employee – for example, providing a separate working area or other suitable work which could be undertaken remotely.

Many disabilities are hidden and therefore each employee affected by an employers decision to implement face coverings should engage with their employer if they feel they cannot wear the same due to such a disability. As a first step an employee should request a copy of the employers Covid risk assessment and general health and safety assessment. If there are more than 5 employees, these must be in writing.

An employee should then request a private meeting to explain they have a hidden disability and that reasonable adjustments should be made for them as a result. All meetings should be documented.

By law, an employer must consider making reasonable adjustments when:

• they know, or could be expected to know, an employee or job applicant has a disability

• an employee or job applicant with a disability asks for adjustments

• an employee with a disability is having difficulty with any part of their job

• an employee’s absence record, sickness record or delay in returning to work is because of or linked to their disability

The employer must make the changes if they’re reasonable.

The employee should make clear that a failure to make reasonable adjustments is a breach of s20 of The Equality Act for which an employer could be liable. Section here https://www.legislation.gov.uk/ukpga/2010/15/section/20

If the employer flatly refuses to exempt an employee from wearing a mask, and/or refuses to make a reasonable adjustment, then the employee should make clear that if they leave their job as a result of the same, they may be able to claim constructive dismissal. If an employee is sacked as a result of not wearing a mask due to having a disability which exempts them, a claim for unfair or wrongful dismissal may be relevant. In all cases the employee should seek immediate legal advice so that the proper process for any claim is followed.

Like employees, visitors and customers may have legitimate reasons for not wearing a face covering (for example, on account of their age, health or disability). While some people may feel comfortable showing something to indicate this such as an exemption card, badge or home-made sign, this is not necessary in law and government guidance states that people should not be routinely asked to provide evidence of this.

as with everything, exemptions apply – https://www.gov.uk/government/publications/face-coverings-when-to-wear-one-and-how-to-make-your-own/face-coverings-when-to-wear-one-and-how-to-make-your-own

For further information about reasonable adjustments you may wish to visit this page
https://www.citizensadvice.org.uk/law-and-courts/discrimination/what-are-the-different-types-of-discrimination/duty-to-make-reasonable-adjustments-for-disabled-people/