It has recently been highlighted by me as well as others (see article Can you exclude entry to someone for not wearing a face mask – 7th May 2021) that it could be disability discrimination if you refuse entry to someone if they refuse to wear a face mask.
However, some social media posts claim that under the Equality Act you could be committing a criminal offence or fined thousands of pounds if you challenge someone who is not wearing a face covering. This is not correct.
No criminal offence under the Equality Act?
The Equality Act makes service-providers (e.g. shops and restaurants) liable in civil claims for acts of disability discrimination against members of the public. For example, a sight impaired person with a guide dog, who has been unjustifiably barred from a shop, can claim damages against the shop, including for injury to feelings.
The Equality Act does not make it a criminal offence to discriminate against someone, so a request for a customer to wear a mask would not give rise to criminal liability. If a person is refused entry because they do not wear a mask then their only remedy is to enter a claim for disability discrimination in the county court. There is no point in them calling the police because no criminal offence has been committed.
Government guidance says premises where face coverings are required should “take reasonable steps to promote compliance with the law”. This includes displaying signage or verbally reminding customers to wear a face covering on their premises.
Additionally, transport operators can deny access to services if passengers refuse to wear a face covering, and both the police and Transport for London officers can issue fines, with repeat offenders in England now risking fines of up to £6,400. The law states it is an offence to fail to wear a face covering if you do not have a reasonable excuse (listed below).
Who is exempt from wearing a facemask?
In England, people are exempt from wearing face coverings if:
- They are a child under the age of 11 (this age limit is different across the UK)
- They cannot put on, wear or remove a face covering because of a physical or mental illness or impairment, or disability
- Wearing a face covering would cause them severe distress
- They are speaking to or providing assistance to someone who relies on lip reading, clear sound or facial expressions to communicate
- It is needed to avoid harm or injury, or the risk of harm or injury, including if wearing a face covering would negatively impact their ability to exercise or take part in strenuous activity
- They are a police officer or another emergency worker, given that this may interfere with their ability to serve the public
There are also scenarios where you can remove a face covering, such as if you are asked to do so in a bank or by retail staff for identification, when seated to eat or drink in a hospitality venue, when exercising or to take medication.
You do NOT have to prove that you are exempt
Government guidance makes it clear that there is no obligation on people to prove that they are exempt from wearing a mask. The government has urged people to be “mindful and respectful” of circumstances when people cannot wear a face covering. They have also said that members of the public should not challenge people who are not wearing one.
Government guidance states that “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”. The government has created templates for exemption cards that people who are exempt from wearing face masks can choose to carry if they feel more comfortable having them, but there is no requirement that they must have them.
Can you question someone about not wearing a facemask?
It is not illegal for the owner of private property or of a business (like a shop or restaurant) to ask people questions to help them decide whether they are willing to let them onto the property. It could even be argued that a shop owner should ask questions if someone refuses to wear a mask as they have a duty to enforce the Coronavirus Regulations and they also have a duty in health and safety to their staff and to other members of the public on their premises.
So if shop staff ask them questions or for proof that they are exempt from wearing a mask, and the person refuses to answer, can they be excluded from the premises?
The answer is probably yes. If it turns out that they were actually exempt then they might have a claim for disability discrimination, but this will depend on how the shop staff behaved towards the relevant individual Any physical intervention is unlikely to be justified, so physically pushing someone out is unlikely to be acceptable.
However, if a reasonable alternative is offered such as a school that offered to meet parents outside if they did not want to wear a mask inside the school, then it is unlikely for a parent to be able to claim any form of discrimination even if they are exempt from wearing a mask due to a legitimate disability. As long as the business owner has followed the government guidance and has not singled out the disabled person for less favourable treatment, then exclusion is probably acceptable.
For more detailed specific advice on your own unique situation, please do not hesitate to contact Justin Sadler at [email protected]
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Justin deals with all aspects of Dispute Resolution for both businesses and individuals, including including Contentious Probate, Employment Law ( for both businesses and individuals) and Commercial Litigation. This means that he is familiar with the many different courts and tribunal as well as the many different methods for resolving disputes, including alternative dispute resolution such as adjudication and mediation.