Can my employer force me to wear a face-covering/mask?

Last week I did a video on the Pimlico no jab no job policy and it’s now had over 20k views and 500 comments.

The video didn’t reveal my views on the vaccines or masks because my opinion often doesn’t count when I give advice. Clients want to know what the law is and what they can and can’t do. Facts mostly.

Many of the comments were anti-vaccine – and that’s fine by me. As discussed there’s no law that forces anyone (well except potentially those mentally unable to make decisions) to have a vaccine. I do personally have an issue with the temporary approval by MHRA under regulation 174 but that’s for another video.

But I also saw a lot of comments about masks.

Lots of people seem to suggest that mask wearing is optional, that it’s not law only guidance, and so on.

So I wanted to talk about that.

If you don’t like reading, here’s me saying it 🙂

Now disclaimer time; I’ve been a business lawyer for 13 years. I don’t do crime or public law and there are far better lawyers on those subjects than me. In my day to day job I draft snd review contracts, advise on business disputes and employees – not public order offences and crime. I’m also not a human rights lawyer so I’m not here to say whether some act or principle from history overrides the current law. And finally I’m not building a defence against it. I’m merely reporting what the current law is.

Ok good – got that? . Let’s make a start.

In England, mask wearing is currently a legal requirement. The wearing of masks is covered in 7 different regulations – and we’ll have a look.

But first it’s important to know what’s the difference between legislation, statutes, acts and regulations.

Legislation is the name for the output of laws, made up of acts of Parliament (also archaicly known as statutes) or statutory instruments (known as regulations).

Acts of Parliament are discussed and debated in both the House of Parliament and House of Lords.

Regulations are not usually debated but are permitted by acts of Parliament. That is, an act permits the government minister to introduce regulations on a particular subject. That isn’t to say that regulations aren’t law.

For coronavirus, there’s been many of each!! All the changes to restrictions have been in multiple acts, amendments to acts, and regulations.

The mask wearing regulations are therefore as valid as law as legislation. As are the consequences of not following the law.

No you may disagree with them, they’re a muzzle, they’re ineffective, they reduce oxygen to the brain – whatever your viewpoint that’s fine it’s yours. But your opinion doesn’t override the legislation and would not likely be a good defence in court.

The regulations do of course build in a number of exemptions to mask wearing. The main one being having a “reasonable excuse” which includes

  • Physical or mental illness, severe distress, disability under equality act
  • The need to lip read
  • To prevent harm
  • To eat n drink
  • To verify identity eg in a bank
  • Or where a police officer or council covid Marshall asks.

Let’s have a look at some of the legislation quickly.

Masks regulations , reasonable excuse, what is a relevant place,

But now we come back to the bit I mentioned in my previous video which is:

Can an employer force you to wear a mask?

I said yes they can subject to disability/equality laws.

And the reason an employer could force wearing masks in relevant places (eg customers site) is because it is law. And so if an employee unreasonably refused, the employer could take disciplinary action and it would be “reasonable” in law for it to do so.

However, the regulations provide exemptions and the equality act overrides things as well. So clearly if someone has a genuine disability which means they cannot possibly wear a mask they are exempt.

People say that all you need to do is say you are exempt and no one can challenge you. I disagree – particularly in the employment context.

That’s because an employer will not be held liable for disability discrimination if it doesn’t know or it’s not reasonably to say it ought to know know that the person has a disability. So if you have never mentioned your disability to your employer before and refuse to mention it when questioned, then I would say it is acceptable for the employer to take action. Employees have a duty of fidelity to their employers and telling the truth and disclosing relevant facts is important.

In my previous video I said that an employer could take disciplinary action of an employee refused to wear a mask without a reasonable excuse and I stand by that.

I had an enquiry recently from someone who said he had a medical exemption but refused to disclose it. I said I couldn’t help him. But in refusing to disclose it to his employer, all he is doing is making them sceptical. Your employer is bound by data protection and health is “sensitive personal data” so it’s not like they can tell the world about your disability.

Outside of the employment world, as I say, mask wearing is a legal requirement like it or not, again unless you have a reasonable excuse. I’ve seen lots of videos with people being challenged about mask wearing and saying “I don’t have to tell you why I’m exempt” but alas I disagree with that too. As it is a criminal offence, if you want the benefit of protection under the exemptions you’ll need to state exactly why. That’s as easy as saying it causes me severe distress of course (if true!) but that’s so much better than saying I don’t have to say. That misconception is that under the equality act someone with a protected charactisic cannot be treated differently. Firstly, the person needs to know or ought reasonably know the other has a protected characteristic and secondly, one is not being treated differently by asking about it as the questioner would ask anyone not wearing a mask the same question. So asking for more information rather than “I’m exempt you can’t ask me” seems reasonable in all the circumstances.

In summary: mask wearing is law. Employers could discipline non mask wearing staff if there’s no reasonable excuse. And reasonable excuse is defined in law as well.

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