The Government has recently announced that, if COVID-19 restrictions are relaxed as planned on 19 July, there will be no requirement to wear a mask in any setting in England. Instead they say businesses who choose to enforce mask wearing would need to take advice on their responsibilities under the Equality Act 2010. So what are those responsibilities and what can businesses do if they want customers and service users to continue to wear masks?
It would be nice to think that we will get some further guidance from government at some stage or that, say, the Equality and Human Rights Commission might provide updated guidance on how businesses can balance the views of different customers and their employees. However, many businesses may need to start planning before further guidance is available.
The threat of claims
Even when mask-wearing was a legal requirement, a number of businesses were threatened with disability discrimination claims as a result of steps they took to enforce the rules. Broadly speaking, our view is that a polite request to a customer to wear a mask should not give rise to a successful claim provided that the customer's assertion of an exemption was then accepted at face value (given that there has never been a legal requirement to prove an exemption). However, as the Government shifts responsibility to individuals and businesses, the legal landscape will become much more difficult.
Businesses who want to enforce mask-wearing in future will face a number of competing responsibilities and duties:
- Under the Equality Act 2010 they will have a duty not to discriminate against anyone wishing to use their services
- However, they will also owe duties to their own employees and other customers including:
- Duties under the Health and Safety at Work etc Act 1974 to conduct their businesses in such a way as to ensure, so far as is reasonably practicable, the health and safety of their workers and customers
- Potentially duties to make reasonable adjustments for vulnerable disabled employees or customers who may remain at higher risk from COVID-19.
We can certainly foresee significant conflicts arising between vulnerable employees who believe it is a reasonable adjustment to require customers to wear masks and customers who believe that mask-wearing policies discriminate against them.
Potential legal basis for claims
To date the majority of potential claims we have seen have been from customers with disabilities who assert they are exempt from wearing a mask. They usually allege discrimination arising in consequence of disability or failure to make reasonable adjustments, although we have also seen disability harassment claims where customers say they were challenged aggressively by staff.
Disability claims will remain the most obvious ground for complaints post 19 July. Further, businesses will not simply be able to fall back on compliance with a legal requirement as a justification for having a mask-wearing policy as they do now. However, disability is not the only protected characteristic that poses a legal risk. It is, for example, unlikely to take long for someone to claim that the reason they refuse to wear a mask is a religious or philosophical belief and that a mask-wearing policy is indirectly discriminatory against persons with that belief.
Many philosophical belief claims are likely to be without merit. For example, to be protected, a belief must meet a number of criteria, including:
- being a "belief rather than an opinion or viewpoint based on the present state of information available"
- attaining "a certain level of cogency, seriousness, cohesion and importance".
To take an example, believing that COVID-19 is a hoax is unlikely to satisfy those tests. However, it would be impossible to rule out the possibility that, say, libertarianism could be held to be a protected philosophical belief in the right circumstances.
Many businesses may feel that the current levels of infection are such that they do need to enforce mask-wearing policies, at least in the short term. They may conclude that, overall, continuing to mandate or encourage mask-wearing provides customers with confidence in accessing their services and is therefore worth it despite the upset it may cause to others. So what can those businesses do to protect themselves from claims?
Most of the types of discrimination claim that may be brought have clear legal defences that businesses may be able to rely on:
- Indirect discrimination claims (of all kinds) and discrimination arising in consequence of disability claims are subject to a justification defence if a business can show that a policy is a "proportionate means of achieving a legitimate aim"
- Further, the duty to make reasonable adjustments should not prevent a business introducing or continuing a mask-wearing policy provided that any challenges to customers not wearing a mask are polite and reasonable.
Additionally, businesses should be able to protect themselves from successful harassment claims through ensuring customers not wearing a mask are always dealt with politely and with respect.
The key step that businesses can take if they do want to continue with a mask wearing policy is therefore to think about their justification defence in advance. That will mean considering and clearly documenting the legitimate aim they wish to rely on and considering the proportionality of their approach. Key points to consider may be:
- Obtaining scientific evidence on the level of risk posed by your business
- Engaging with unions
- An updated risk assessment of their premises, including infection control risks – for example a business with poor ventilation might be viewed differently to one with a state of the art ventilation system
- Gauging/surveying customer opinion – if the majority of customers support a mask-wearing policy that should help show it is proportionate
- Considering what exemptions will be allowed and how they will be applied
- Staff training
- Ensuring they know and understand their service users and employees – businesses with known vulnerable employees or service users may be in a stronger position to enforce the use of masks.
Overall, having a well thought out policy and ensuring consistency of treatment will be key to reducing the risk of claims.