Before we go any further, here is a quick word about the differences between face masks and face coverings, because there is a difference.
These are mainly intended to protect others rather than the wearer. They are not classed as personal protective equipment because there is no need to conform to a manufacturing standard, and they do not provide protection for certain workplace risks.
These are manufactured to a recognised standard and are designed to be worn in medical and surgical settings, where their aim is to limit the spread of infection.
In England, the mandatory requirement to wear a face covering ceased on 19 July 2021. However, the Government’s guidance on the issue states that it “expects and recommends” members of the public to continue to wear face coverings in crowded and enclosed spaces.
In terms of workplaces, the Government has stated that “businesses can require or encourage customers, clients or their workers to wear a face covering.” So, does this mean that an employer can force their staff to wear a face covering? There are a few considerations and risks to bear in mind which are set out below.
All businesses and employers have a legal obligation to provide a safe working environment and must take reasonable steps to control risks to the health and safety of their workforce and customers in their workplace. To comply with this obligation generally – and as part of a COVID-safe working environment – a risk assessment must be undertaken and is the first step when thinking about a face covering policy. Some of the key questions to consider are:
Should you decide that face coverings are a part of your organisation’s risk control strategy, we would suggest a Face Covering Policy is issued, which clearly communicates what you are asking your staff to do and why. Clear and consistent messaging will help persuade people to follow the policy too.
What then happens if a member of staff refuses to wear a face covering? The steps you should consider are as follows:
Discuss and understand the worker’s concern. Is the objection linked to a Protected Characteristic, as defined by the Equality Act 2010 (e.g., disability, sex, religion or belief)? This could have implications as set out below.
Pre-19 July 2021, when face coverings were mandatory, some individuals were exempt mostly due to health reasons. You should expect this same group of individuals may be some of the first to question your policy. It is likely that many of those who were exempt, will be classed as ‘disabled’ pursuant to the Equality Act 2010. Some may not but have legitimate health reasons in which you accept.
You can ask for evidence of the health condition which prevents them from being able to wear a face covering if you’re unsure. Asking for medical evidence – especially where there is a disability or the possibility of a disability – so you can make an appropriate and informed decision to assist them, is rarely the wrong action.
You should then discuss and understand their concerns, and consider any reasonable adjustment which can be made, for example:
As with all reasonable adjustments, you should approach suggestions with an open mind and document your decision making.
If, having explored the issue with your staff, they still cannot or will not wear a face covering, what next? Will dismissal ever be a reasonable step to take? Much will depend upon the process you have followed, your risk assessment – and the reasons for your Face Covering Policy – alternative ways of mitigating the risk, and the worker’s specific circumstances.
Additionally, for those individuals with Protected Characteristics (especially people with disabilities), you should be aware of the risk of unlawfully discriminating against them by continuing to enforce a mandatory policy. Taking any disciplinary or dismissal action should never be a knee-jerk reaction in these circumstances.
Face coverings might be here to stay for a while. If you wish to use them in your organisation, bear in mind that a blanket mandatory policy may have some push-back and could result in unfair or discriminatory outcomes. Careful management of the policy is required, and all matters should be dealt with on an individual basis when considering the specific situation of the worker.
If you would like to discuss your company’s approach with a specialist employment lawyer, our friendly team are on hand to help. Get in touch using the contact details below.
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Associate Solicitor, ESP Law Ltd
Suzanne joined esphr in 2021, having qualified as a solicitor in 2005. She has worked in both the private and public organisations and has a breadth of experience across a number of different sectors including travel, retail, manufacturing, and education. She advises on all aspects of managing the employee journey, from the provision of day-to-day advisory support to complex grievances and disciplinaries. Suzanne also assists organisations embarking on longer-term projects such as TUPE transfers and change management programmes, including collective consultation. She has particular expertise in managing the defence of tribunal claims, including successfully defending applications to the EAT.