Face coverings and discrimination
This month, the obligations to wear face coverings in the UK have been under renewed focus. The Government has announced that it will be taking more robust action against anyone caught refusing to wear a mask. Supermarket giants including Asda, Morrisons and Tesco have declared that they will deny entry to customers who are not wearing a face covering unless they are exempt from wearing one.
As the number of cases of Coronavirus continue to increase, employers may consider it necessary to enforce a similar approach with their staff. Employers are under a legal obligation to provide a safe working environment and such an approach may be necessary to satisfy this obligation where social distancing in the workplace is not practicable. This could mean that employees are denied entry to their workplace if they are not wearing a face mask, unless they can prove that they are exempt.
This is, though, a potentially risky approach for employers as it may leave them vulnerable to claims of unlawful discrimination. This is because Government guidance states that people who have a reason for not wearing a face covering connected to their age, health or disability (each of which is a ‘protected characteristic’ for the purposes of the Equality Act 2010) are not required to routinely show written evidence of this. Whilst some employees may feel comfortable showing their employer something which proves they are exempt from wearing a mask, this is a personal choice and they are not required by law to do this.
If an employer denies an exempt employee entry to their workplace for failing to show an exemption certificate, they are likely to have discriminated against this employee. This could be considered indirect discrimination in relation to any of the above-mentioned protected characteristics. Additionally, under the Equality Act 2010 it is unlawful to treat an individual less favourably for a reason that arises from their disability; and, in circumstances where a provision, criterion or practice of the employer disadvantages an individual because of their disability, it is unlawful for an employer not to take all steps as are reasonable to alleviate the disadvantage. Any employee who feels that they have been discriminated against in one of these ways is entitled to bring a claim against their employer in the Employment Tribunal.
In relation to the protected characteristic of disability, it is worth noting that it is more difficult for an employer to be held liable for discrimination if they were not aware (and could not reasonably be expected to be aware) of the employee’s disability. Employees with a disability should ideally tell their employer about their disability so that adjustments, if necessary, can be made to any policy of the employer that would otherwise disadvantage the employee due to their disability (such as, for example, the requirement to wear masks at work).
Whilst enforcing the wearing of face coverings in the workplace is an approach that employers may want to take in order to reduce the spread of Coronavirus, it is important that they are careful not to discriminate against exempt employees. Best practice will likely be to engage with staff as to why it is important for all employees (so far as is possible) to follow the rules on face coverings and make reasonable adjustments for employees who are exempt.