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woman with face mask

Restrictions removed, confusion remains! What is legal?

Posted: 27 July 2021
One significant grey area which continues to cause debate surrounds the use of masks. Legal requirements to wear face coverings have been lifted, yet the Government “expects and recommends that people wear face coverings in crowded areas such as public transport”.[2] It’s been argued that there’s an element of mixed messaging with this approach, resulting in many businesses taking their own stance. For instance, Transport for London have continued the policy that you must wear a face covering on the network, in stations, and for the whole of your journey. Those that don’t could be refused entry, denied travel or told to leave stations and services.[3] Similarly, Tesco and Sainsburys are leading a host of supermarkets who’ve encouraged their shoppers and staff to continue wearing face coverings despite the change in law.[4]
Given the change in law, it’s understandable to question whether a business can really implement such requirements. However, from 19 July a company is free to set its own safety measures in relation to Covid, whether that be for its employees or its customers. Some job roles have a high level of interaction with the public, therefore it’s logical that these businesses might wish to maintain mask-wearing where possible. Businesses are advised to carry out a risk assessment and have a clear policy and justification for the continued requirement to wear a face covering.
If an employee refuses without good reason (i.e. they’re exempt) this may be seen as a refusal of an employer’s reasonable request. As such, it could lead to disciplinary action – if the employer can show the request is reasonable, the risks are high and other safety measures are in place to reduce them. Yet things are still not clear cut, as with face coverings no longer a legal requirement, a request to wear one might appear less reasonable now.
Assuming a business has continued to implement face coverings within its premises, then it’s within its rights to ask if a customer is exempt if they’re refusing to wear one. However, nobody is obliged to produce evidence of exemption so businesses must be cautious as this could be viewed as discriminatory if they persist. If someone is refusing to wear a face covering without reason, a company can consider refusing service as long as this is fair and they’re sure this isn’t discriminatory.
Testing continues to be encouraged by the Government to help people manage their own personal risk and exposure within workplaces.[5] Employers may look to implement Lateral Flow Testing (LFT) to reduce the risk of an outbreak and to minimise disruption. However, there’s a balance to be struck between the employer’s legitimate interests in protecting its business and the health and safety of employees, and the personal interests of those employees.

Much like with mask wearing, an employer can implement LFT for its staff as part of its own safety measures. If a business makes these mandatory, then the business must provide workplace testing or support with testing outside the workplace.[6] It must also ensure employees who receive national minimum wage are paid if they’re taking the test outside of normal working hours, otherwise it could be argued they haven’t been paid for working time. Any employee declining to get tested could face disciplinary action as it could be perceived as a refusal of a reasonable request of an employer.

As the vaccination roll out continues to bring hope and success in the fight against the virus, businesses may be tempted to implement a vaccination requirement. However, there’s no specific legislation which allows an employer to require an employee to undergo medical treatment of any kind, including vaccination. Only in very limited circumstances could this be seen as a reasonable request, such as when an employee’s role involves high levels of interaction with the vulnerable, like a healthcare professional. In general, a requirement to be vaccinated could be discriminatory.

Similarly, businesses checking employees’ Covid vaccination status should only do so in limited circumstances. People’s private health information is special category data, and this information must not result in any unfair or unjustified treatment of employees.[7] The industry in which the business operates, and the work employees do will help determine the reasonableness of checking employees’ Covid status. If by the nature of their job employees are more likely to encounter infected people or could pose a risk to clinically vulnerable individuals, this could be justified. But remember, United Kingdom General Data Protection Regulation will always apply if recording the data.[8]

Although England has lifted many restrictions, navigating the next six months is likely to be just as challenging as the previous six. Grey areas will continue to arise for both businesses and their employees as we continue through unprecedented territory. It’s essential that businesses are clear on the steps they take, if there’s any uncertainty then they should review their legal expenses policy as they may have access to a free legal advice helpline.