Everyone must wear masks in shops and restaurants and controllers of premises can insist they are worn.
From 24th July 2020, in England the wearing of a face covering in ‘relevant places’ has, subject to a ‘reasonable excuse’ exemption, been made a legal requirement. Children under the age of 11 are excluded.
The ‘relevant places’ are all shops, enclosed shopping centres, arcades and any enclosed parts of port, airports, bus and train stations (‘transport hubs’).
Specifically excluded are:
- restaurants with table service, including restaurants and dining rooms in hotels or members’ clubs
- bars, including bars in hotels or members’ clubs
- public houses
- areas at transport hubs where seating or tables are made available for the consumption of food and drink
Food and drink is clearly the common denominator for exclusion. Presumably, given a cafe can ask you to sit at a table while they prepare your food or drink, the fact that service is normally counter-service would not prevent exclusion as long as there are tables.
Here, from the Part 2 of the Schedule in the regulations, is a full list of Exemptions from definition of Shop (as at 24 July 2020) that you can refer to when necessary.
What is a face covering?
“face covering” means “a covering of any type which covers a person’s nose and mouth”. Although examples in the guidance include a scarf, bandana, religious garment or hand-made cloth covering, there is no reference to guidance in the regulations and the guidance is not mandatory.
Reasonable excuse exemption
Examples of a ‘reasonable excuse’ not to wear a face covering include:
- you cannot put on, wear or remove a face covering because of a disability (within the meaning of section 6 of the Equality Act 2010(1))
- accompanying or providing assistance to someone relying on lip reading to communicate with you;
- removing your face covering to avoid harm or injury, or the risk of harm or injury, to yourself or others;
- entering a relevant place to avoid injury, or to escape a risk of harm, but not having a face covering with you
- it is reasonably necessary to eat or drink;
- to take medication;
- a person responsible for a relevant place (or their employee) requires it to verify your identity;
- in a registered pharmacy, to assist in the provision of healthcare;
- a ‘relevant person’ requests it
Is ‘severe distress’ what the government needs to see?
It is noteworthy that, unlike other regulations, “to avoid illness” is not listed as a reasonable excuse. Instead, another specific excuse is you cannot put on, wear or remove a face covering “without severe distress”.
This phrase has been a feature of government guidance. In some respects it sets a lower bar than ‘disability’ because a long term condition is not required. This could, therefore, cover an acute reaction to being required to wear a face covering. In other respects, this sets a high and cruel bar indeed. The implication is the government requires your stiff upper lip to include suffering periods of anxiety and mental or physical fatigue which could be very distressing and cause illness yet not, in the opinion of the relevant person without any medical qualification, causing ‘severe’ distress.
However, it must be remembered that the list is not exclusive. Your reasonable excuse might not be in the list. Also, there is the excuse “to avoid harm or injury, or the risk of harm or injury”. Since a face covering can be ‘removed’, it seems that a face covering may need to be carried or worn first, but removal might be reasonable to avoid harm, or mere risk of harm, even if the immediate distress is not demonstrably ‘severe’.
Who will enforce this?
Government advice to businesses and controllers of premises is NOT to try to enforce wearing of face covering and instead to leave this others. In particular, to the police, police community support officers, TfL officers, and any other person designated by the Secretary of State for Health. Significantly, unlike other regulations, these ‘relevant persons’ do not include persons designated by Local Authorities.
If a ‘relevant person’ considers that you are not wearing a face covering when you should be, they may direct you to wear a face covering and to leave the relevant place. A police constable may use reasonable force if necessary, but not others.
Apart from expectation of significant disagreements arising, there is good reason for keeping businesses and local authorities out of enforcement.
They might include that they would be putting themselves in very obvious risk of disability discrimination. There is significant portion of the population who by reason of their disability are put at a substantial disadvantage if required to wear a face covering. This may include, for example, citizens who suffer from deafness or otherwise need to see lips or full face for communication, asthma or other respiratory conditions, anxiety, depression, general anxiety disorder, paranoia, schizophrenia among many others.
The regulations do not and cannot trump discrimination law
Anti-discrimination laws in the Equality Act 2010 cannot be overwritten by these regulations. The Equality Act provides fundamental protections for citizens with disabilities. These also overlap with rights to a privacy and autonomy having to be treated with reference to their disability (or, for that matter, their gender, race, sexuality etc.)
What should businesses do?
Businesses and their staff are best advised not to challenge those who refuse to wear a face covering. Otherwise, at some point in the day there is likely to be a time when someone with a disability is challenged. Depending on how the situation develops, and this could be within minutes or seconds, a situation may arise when the business, and the person conducting the challenge, may find they have committed:
- an offence for which they are liable on summary conviction to pay a fine of up to £5,000 – section 112 (Aiding contraventions) of the Equality Act 2010; and/or
- an act of disability discrimination and be ordered to pay to any individual who suffers injury to feelings compensation between £900 and £9,000 – section 119 (Remedies) of the Equality Act 2010
With that in mind, consider the following.
Standing up for others
There will be real concern that those who are already vulnerable will be subject to harassment from those who do not appreciate their disability and who misunderstand that law. They may live to regret it since ignorance of the law will be no excuse when they find themselves in Court.
Those who support and stand up for the rights of others do not have to have a disability themselves in order be protected. The Equality Act 2010 provides protection for those who are treated unfavourably because of someone else’s disability, just as if the disability was theirs.
How to assert your reasonable excuse
There will be many ideas about this. Suing should not necessary but no one likes the threat of litigation. We have provided a toolkit in Face covering: litigation threats and administrative headache.
How long may this go on for?
The regulations are set to expire after 12 months. Review is not scheduled for before 6 months.
Fines and offences
A relevant person can issue a fixed penalty notice to anyone they reasonably believes has committed an offence under the regulations and is 18 or over. The fine is £100 reduced to £50 if paid within 14 days.
A person who, without reasonable excuse, obstructs, contravenes a direction, or fails to comply with an instruction from an enforcement officer under the regulations commits an offence punishable on conviction by a fine.
- The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020
- The Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020
The Welsh Assembly Government, led by First Minister Mark Drakeford, Wales has followed suit in making wearing of face coverings on public transport ‘compulsory’. This is supported by further and extraordinary guidance, given it has the force of law in Wales, not to do such things as read a newspaper, sing, or run for the train if you are late.
We await his decision in relation to requirements to wear face coverings more widely. As for the continuation of the lockdown in Wales, you may wish to read Welcome to Wales. Many may fear his guidance will result in the requirements being very more widely indeed.
Warning: Law and circumstances can change very quickly. Please note the date of publication of any blog post and check for any updates on the issues addressed. In any event, we do not condone or encourage breaching the law and neither the above nor any information posted on this website constitutes legal advice. It must not be relied upon as such and specialist legal advice should be taken in relation to specific circumstances. Please read our disclaimer.