Face covering: litigation threats and administrative headache

Fiction:

Shoppers and public transport users have to declare their ‘reasonable excuse’ for not wearing a face covering and put up with dirty looks as they buy their bananas or travel to work.

Law:

As a good starting point we recommend remains our post on Face covering for 6 to 12 months from 24th July.  The face covering regulations do not override other important rights against invasion of privacy and disability discrimination.

The law is complex so we have set it out in an easy to use ‘toolkit’ to use when out an about.  It will help individuals and business understand what their rights and obligations in respect of face covering and how claims for compensation can arise if they do what they shouldn’t.

Citizens can carry this on a phone or print off to paper, as this may be effective as an administrative nuisance even if a court claim isn’t made.

The level of detail in the document is necessary for its purpose, but will also give the carrier confidence.  This is how it works:

The Tool Kit is HERE

The Starting Point

Page 1: This is a Notice to be presented by anyone who wishes to rely on the ‘reasonable excuse’ exemption when asked why they are not wearing a face covering.

Page 2 and 3: Information about disability discrimination can be provided at the same time.  (This may also be distributed in advance to any business  that you think needs to know.)

Stage 2

Page 4: This is a warning to the controller of premises, and their workers(s) involved, that may be acting unlawfully in demanding details of your excuse.

Stage 3 – Disclosure of disability

Page 5: If you are unsure whether you have a relevant ‘disability’ in the meaning of section 6(1) of the Equality Act 2010, but believe you might, there is no harm in asserting that you do. There is absolutely nothing you can be sued for if you turn out to be wrong.  (NB: dishonesty to a relevant enforcement officer carrying out their function could be an offence of unlawful obstruction.) 

If you feel obliged to disclose that you suffer from a ‘disability’, this formally advises the person you are dealing with that you consider that, even though you have not yet given any details of what that disability is, they have committed an act of disability discrimination in requiring you to make this disclosure.

Stage 4 – Disclosure of details of my health condition

Page 6: If you have felt obliged to disclose details of your health condition in order to satisfy the demand for explanation of your reasonable excuse or disability, this records what you have disclosed and that you consider them to have committed a further act of disability discrimination.  This section of the toolkit is best completed in advance and ready to present when challenged. Have a copy with you to be provided by hand or electronically as you wish.

 

Litigation threats to businesses and individuals

At each of stage 5 and 6 is a notice of dispute and requirement for business to retain copies of any CCTV (and documents you have handed over) that are relevant to the dispute. This may be evidence, for example, simply of your presenting information or, no doubt in some cases, the distress or harassment being suffered. This would be relevant if and when you choose to pursue prosecution and/or a claim for compensation.

(We would of course recommend specialist advice is sought first.)

Administrative headaches for businesses

Even if you just consider making a claim, you may want to make a GDPR subject access request under the Data Protection Act 2018 seeking copies of those records. For businesses this may present a real administrative headache to be avoided.

 

The Tool Kit is also HERE

 

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.

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34 thoughts on “Face covering: litigation threats and administrative headache”

  1. What is the current legal position of seeking hospital treatment with a private provider (hospital) when I have an exemption due to disability?
    Do I have to wear a mask?

    1. I have attended many private hospitals now and have never had to wear a mask. Yes they have asked, politely and I simply stated I am exempt, with no further questions they allowed me in and both staff and doctors, whilst mask wearing themselves, were absolutely fine. By the way, I do carry an exemption card from the TFL website but to date have not had to produce it.

  2. Thank you for clarifying these issues, very helpful to be able to be confident about one’s rights.

    Caroline

  3. I left a comment here yesterday and it seems to have disappeared
    My question was, what is the law concerning masks when going to hospital when I have an exemption – I have been told by a private hospital that they are following guidelines and I have to wear one regardless – this is contrary to what the new law says – can i confront them with the equality act as you indicate?

    1. I would respectfully refer them the current regulations as set out below:

      The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020
      See: https://www.legislation.gov.uk/uksi/2020/791/contents/made

      Section 3 states: No person may, without reasonable excuse, enter or remain within a relevant place without wearing a face covering.

      Section 4 sets out what may compromise a ‘reasonable excuse:
      Reasonable excuse as follows:
      4.—(1) For the purposes of regulation 3(1), the circumstances in which a person (“P”) has a reasonable excuse include those where—

      (a)P cannot put on, wear or remove a face covering—
      (i)because of any physical or mental illness or impairment, or disability (within the meaning of section 6 of the Equality Act 2010(1)), or
      (ii)without severe distress;
      (b)P is accompanying, or providing assistance to, another person (“B”) and B relies on lip reading to communicate with P;
      (c)P removes their face covering to avoid harm or injury, or the risk of harm or injury, to themselves or others;
      (d)P is entering or within a relevant place to avoid injury, or to escape a risk of harm, and does not have a face covering with them;
      (e)it is reasonably necessary for P to eat or drink, P removes their face covering to eat or drink;
      (f)P has to remove their face covering to take medication;
      (g)a person responsible for a relevant place or an employee of that person acting in the course of their employment, requires that P remove their face covering in order to verify P’s identity;
      (h)in a registered pharmacy, an employee of that registered pharmacy acting in the course of their employment, requires that P remove their face covering in order to assist in the provision of healthcare or healthcare advice to P;
      (i)a relevant person requests that P remove their face covering.

      Do of course carry your letters from the law or fiction toolkit and stand strong.

      Hope this is of help and Good luck

  4. Where do airlines fit in? I understand they turn away passengers at the gate if they are not wearing masks. They ask for a doctor’s exemption certificate, but I don’t think doctors give these.

  5. Thanks for this work. Just had 84 yr old mother in law bullied by Tesco staff. She has serious heart issues and anxiety/breathing problems. Reluctant to venture out for food now.

    Vital work thank you.

  6. David Westley

    Thank you so much for sharing this toolkit. I hope I never need it but if I do I’m sure it’ll come in very useful. Do these provisions, or similar, also apply when visiting Scotland?

  7. Hi, thanks for this really great work! Do you have similar for Scotland available? I was subjected to harassment in cafe yesterday and am quite keen to take further action on the matter. Very very concerned re this. Thanks Hannah

    1. I’ve been doing some research into how this applies to Scotland. The Scottish guidelines on face coverings, although worded slightly differently to the English guidelines, are very similar and include an exemption for physical or mental impairment. I also understand the Equality Act 2010, which is referred to extensively in the toolkit, applies to England, Scotland and Wales. Therefore I would suggest this toolkit can be applied to Scotland, although I’m not a lawyer and I’d be happy for any lawyers to correct me if I’m wrong! Hope this helps.

  8. Pete briquette

    I thought it was illegal to refuse a person the right to access food and water so how can shops override this ?

  9. Thank you for all comments.
    Please continue to post them so we can see what we are missing, where common issues arise and where we might need to focus more time.
    Unfortunately, we are unable to respond directly to most comments owing to time constraints. Also, simple questions do not necessarily have simple answers and dealing with them may involve getting into longer conversations. We do hope, however, to address some directly and otherwise address in future posts.
    We also welcome contact via the website but, for the same reason, may not be able to reply to all.
    If you require specific advice on your particular case on a paid for basis, do please get in contact via the website including in the subject heading ‘paid advice required’.

  10. I may be being simple here – but what’s the point of this then??
    The british public have been well and truly shafted and any hope of a challenge here seems to have disappeared??? Does the ‘rule of law’ even exist anymore – are we now, legally speaking, on our own because that what it seems to be.

    I can’t get healthcare, hospitals discriminate against disabled people and get away with it, i’m struggling to get my money back from a cancelled holiday, the information commisioner has decided to waive the 30 day reply rule so, in effect no FOI, my MP does not reply to mails and so on ….. we have no protection in law, nobody wants to know!

  11. Please read the explanatory memorandum pdf that accompanies statutory instrument (SI) 791 2020. In the memorandum point 6.9 it clearly states that SI 791 2020 section 4 (the list of reasonable excuses for not wearing a face mask) is a NON EXHAUSTIVE one. Thus there are many other reasons that people can invoke to not wear a mask. Our Government has hidden this in the memorandum to trick most of the public into wearing the mind muzzle!
    The explanatory memorandum is a pdf doc that sits on the statutory instrument page itself for SI 791 2020. Most SI’s have explanatory memorandums. Alot of people don’t see them or read them. Please read it people. Best regards

    1. Thanks for this, much appreciated- I’ve been looking through the legal instrument but didn’t realise there was an accompanying memorandum, very useful.

  12. I work as a support worker. Working as part of a team of 3 in the clients house.
    The agency I work for have said. We are not allowed to eat or drink in the house. And we have to wear masks all the time on a 12 hour shift. Apart from when taking a break outside.
    However there is no guarantee we will be able to due to the clients needs.
    I am also exempt under the government conditions and am battling not to have to wear a mask for long periods of time.
    Could you advise please.

  13. I posted a comment around midnight on the 1st August 2020. Why has my post disappeared? What exactly did your moderator not like?
    I posted about Statutory Instrument 791 2020 and it’s accompanying explanatory memorandum to help people. So why would you remove it?
    Hummm….!

  14. What is the situation with retail establishments refusing to take cash insisting on card only payment? I was under the impression cash is legal tender and could not be refused

  15. Is it obligatory to divulge one’s confidential medical information/diagnosis to an enforcement officer? Or, if questioned/challenged, can one simply inform them that one “is exempt”, and leave it at that, saying no more?

  16. Is one obliged to divulge one’s medical information to a police officer, if asked in connection with not wearing a facemask?

    1. For what I know Peter there should be no obbligation to disclose one’s medical history,it is a private matter this apply even to police officers.
      Saying that you are exempt should suffice.

  17. Caroline Blackburn

    Hi Rebekah,
    It hasn’t been removed, it is in the comments and made great reading, thank you!

    Please read the explanatory memorandum pdf that accompanies statutory instrument (SI) 791 2020. In the memorandum point 6.9 it clearly states that SI 791 2020 section 4 (the list of reasonable excuses for not wearing a face mask) is a NON EXHAUSTIVE one. Thus there are many other reasons that people can invoke to not wear a mask. Our Government has hidden this in the memorandum to trick most of the public into wearing the mind muzzle!
    The explanatory memorandum is a pdf doc that sits on the statutory instrument page itself for SI 791 2020. Most SI’s have explanatory memorandums. Alot of people don’t see them or read them. Please read it people. Best regards

  18. Re medical exemption certificates: do we have to have them? I am extremely claustrophobic and cannot wear a mask for more than a few minutes without having a panic attack, but I’ve never had to speak to my doctor about this and don’t have a medical certificate in case I am asked. Should I be asking my doctor for a certificate? The articles here are unclear as to whether I must be ready with one when asked, or if my word is good enough.

    1. Hi Andrew. Here is the governments statement on this issue.

      “Those who have an age, health or disability reason for not wearing a face covering should not be routinely asked to give any written evidence of this, this includes exemption cards. No person needs to seek advice or request a letter from a medical professional about their reason for not wearing a face covering.

      Some people may feel more comfortable showing something that says they do not have to wear a face covering. This could be in the form of an exemption card, badge or even a home-made sign.

      This is a personal choice and is not necessary in law.”

  19. This is brilliant – thank you. I am ploughing through it hoping to find enough info that I can use for NI. Just this week I was shouted at and told to leave Ladbrokes because I had no mask on. I regret that I didn’t stand my ground however I was so humiliated and anxious that I just ran out.

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