Mask confusion | Can we compel employees to wear face coverings at work?

Written on 20 July 2021

Of all the issues to emerge from the recent lockdown-lifting announcement, the continued use of face coverings is perhaps the most contentious.

Some have already declared their stance. Tesco, Sainsbury’s and Waterstones have announced that they will continue to ask shoppers to wear face coverings, even though they are no longer legally required in England under the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020. In fact, even the government says it “expects and recommends” shoppers to wear face coverings in crowded, enclosed spaces where individuals may come into contact with people they don’t normally meet.

In regard to workers, Goldman Sachs has revealed it will require employees to wear face coverings after restrictions are eased in England on 19 July – but won’t make vaccination compulsory – as it attempts to bring 70% of its staff back to the office in the coming weeks.

These headlines provide some early indication as to what businesses are planning, but with employers now left to make their own determinations as to whether face coverings are required in the workplace, is there a right answer? Can you force employees to wear face coverings now lockdown has lifted?

Our experts offer their advice.

The health and safety perspective

“Before getting too deep into the debate, it’s important to understand the difference between a face covering and a face mask”, says Nick Wilson, Director of Health & Safety Services at Ellis Whittam.

“A face covering – a piece of material that can be secured around the face to cover the nose and mouth – is not a form of personal protective equipment (PPE). This is because, unlike surgical masks, they are designed to protect those around us rather than the wearer.

“This distinction is significant, as it means employers won’t be able to require employees to wear face coverings in the workplace under coronavirus legislation or personal protective equipment regulations.”

Nick explains: “If they were classed as PPE, employers could require their staff to wear them as a form of personal protection, as their risk assessment would stipulate that PPE must be worn for certain activities or locations.

“For employers currently contemplating their stance on face coverings post-lockdown, my advice is to make sure to develop your policy and your risk assessment on face coverings in collaboration with your employees. They will want to be reassured that the workplace is as safe as possible and will want to know how the employer is going to manage risk – a clear policy on the wearing of face coverings will be a big part of this.”

But what about people entering the premises, such as customers, visitors and contractors? This is potentially a different issue, says Nick.

“The government guidance says this will be down to the judgement of the individual but that face coverings are strongly recommended in crowded indoor spaces. This said, it is your private property, so provided you do not discriminate unlawfully, you can dictate the rule of entry.”

He continues: “If you feel visitors or customers need to wear a covering to mitigate the risk of COVID-19 in your workplace, then you can require this. On the discrimination point, those who are medically exempt are likely to be regarded as disabled for the purpose of the equality legislation, so they ought to be granted entry without a face covering in the same way as has applied until now or you run the risk of receiving discrimination claims.”

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The employment law perspective

“While health and safety law provides no legal basis to require employees to wear a face covering – as it isn’t PPE – that doesn’t stop individual employers from having their own house rules, as demonstrated by Transport for London, Tesco and many others who have recently announced such a policy”, says James Tamm, Director of Legal Services at Ellis Whittam.

“From an employment law perspective, employers have a fair degree of latitude to decide what is and isn’t appropriate in the workplace. As such, you could conclude that face coverings are still required.”

However, this is clearly a potential source of conflict. Those who want to continue wearing them could raise a grievance against those who don’t and vice versa.

As such, James recommends that employers set out a policy to establish the rules and expectations around the wearing of face coverings and communicate that to all employees so that everyone knows where they stand.

“If the rule is to require the wearing of face coverings in certain circumstances, explain why and what will happen if that requirement is not met – it will help if this is supported by a risk assessment”, he says.

In regard to enforcing such a policy – and potentially disciplining or dismissing those who don’t comply – James advises that the lack of a legal requirement will come into play when judging the reasonableness of any action. He explains: “That’s not to say someone couldn’t be dismissed for refusing to wear a mask – that will depend on the reasons for that requirement and the reasons for the refusal – but it may make the bar a little higher for the employer.”

As such, employers should consider the following first:

  • Is the requirement to wear a face covering reasonable? This is where your reasoning and risk assessments are important. If you risk assessment doesn’t require the wearing of a face covering, it will be difficult to take action against an employee refusing to wear one.
  • Having established that the requirement is reasonable, is the employee’s refusal to wear one unreasonable? This will obviously vary from case to case and employers need to be careful; if the employee’s reason for not wearing a face covering is linked to a protected characteristic, for example a disability, it could be discriminatory to take action against them for refusing, so do take account of their mitigation.
  • If your rules, supported by a risk assessment, require the use of face coverings and an employee unreasonably refuses to comply, you could take disciplinary action against them. A low-level warning can be given without much risk but whether you can dismiss someone is a much more difficult question. Dismissal has to be within the range of reasonable responses, and whilst your own internal rules and risk assessments are relevant to that, so are all other surrounding circumstances. One relevant surrounding circumstance, of course, is that wearing a face covering is no longer a legal requirement – at best it is a recommendation. That does weaken the argument for dismissal. It is still potentially an option, but this will depend on the facts of each case, so do take advice before acting.

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From face coverings and flexible working to the legalities surrounding vaccination and testing, the easing of lockdown restrictions will create further complications for employers. If you’re in need of straightforward advice on an employee matter, guidance on appropriate risk control measures, or help devising the appropriate policies, our Employment Law and Health & Safety specialists can offer expert support.

To find out more about our commercially-minded, fixed-fee services can help your business ensure a smooth, safe and compliant return to work, call 0345 226 8393 or request your free consultation using the button below.

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