Care must be taken that policies mandating the use of face coverings do not infringe the rights of those unable to wear them due to a physical or mental illness, impairment or disability.

Given the extent of the pandemic crisis, it seems reasonable to assume that rules designed to protect public health trump other considerations but there has to be a balanced approach to stay within the law.

The use of face coverings in public settings such as shopping centres, shops, cafés and transport hubs became mandatory on 24 July 2020. Fines of up to £100 have been levied against those deemed to be in breach.

However, occupiers find themselves caught between a rock and a hard place. Failure to encourage compliance could leave them exposed to employers’ and public liability claims, while overzealous enforcement could leave them exposed to claims under the Equality Act 2010.

Compliance and equality

Occupiers of such premises have both a moral and an economic interest in encouraging compliance. Failure to do so could lead to the spread of the disease and, while we have yet to see a significant influx of COVID-19-related claims, both employers’ and public liability claims could potentially follow, if enforcement has been lax.   

Government guidance, however, also makes it clear that exemptions apply if a person cannot put on, wear or remove a face covering because of a physical or mental illness, impairment or disability.

Proof of exemption

In addition, the law does not require disabled people to be able to prove their exemption with identification or certification. The current Government guidance expressly states that: “if you have an age, health or disability reason for not wearing a face covering: you do not routinely need to show any written evidence of this… you do not need to show an exemption card.”

The guidance given by the Equality and Human Rights Commission to retailers includes: “ensure any communication about face coverings makes it clear to all staff and customers that it is not compulsory for some disabled customers to wear a face covering, for example, a mask or visor, and that they should not be routinely asked to prove that they have a disability or are exempt”.

Equality Act 2010

The danger for occupiers therefore is that, when seeking to enforce compliance, a refusal to serve an unmasked customer who is in fact exempt because of disability, would be a breach of the Equality Act 2010. 

This is because that person would not have been provided with a service they were entitled to receive and/or such a customer would have been treated less favourably because the terms on which the service would be provided to them, (by requiring proof of exemption) would be different and more onerous than would be required of persons not affected by the protected characteristic.

Any signage giving the impression that a service may be refused to those without a mask who do not show an exemption, might be discriminatory if an exempt person did not seek to access the service because they did not have the requisite proof.

Occupiers should consider training staff to inform them that, while it is legitimate to challenge a person who is not wearing a facemask, it is not permissible to seek an exemption certificate or proof of disability from them. Should a person confirm they are medically exempt, they should receive the same level of service as any other customer.  

Occupiers should also review relevant signage. It should not imply that unmasked customers exempt from wearing a mask will be asked to provide evidence of their exemption, or will be refused service if they do not do so.

Balancing the public health and equality risks is particularly important as public awareness of the issue is growing. A quick search on the internet reveals multiple sites explaining disability rights relating to face masks. Some even provide template letters with which to make a claim.

Sebastian Widemann (sebastian.widemann@aon.co.uk) is Claims Services Teams Manager at Maven Public Sector. Seb has over ten years experience in the insurance claims sector dealing with a variety of liability, property, motor cases. He has extensive experience of working with global corporate clients as well as public service organisations.