Employees have to wear a mask if their employer tells them to.
Wearing of face covering is not required by law, nor even government guidance, in ordinary situations such as supermarkets, shops and offices. It is not just employees with disabilities who have special legal protection. Any employee who objects can give themselves whistle-blower special protection against being picked on for refusing to wear a mask.
The regulations exempt most employees
The requirement to wear a face covering specifically does not apply to an employee at relevant premises acting in the course of their employment. (regulation 3(2)(b)).
The government does not recommend that employees wear a face covering
The Health & Safety Executive (HSE) on its website does not recommend wearing of face covering.
The government guidance recommends only that employees should follow guidance from their employer based on a workplace health and safety assessment. The buck having thereby been passed to the employer, this looks like another case of a government request, not a direction.
But how many employers will have done an assessment on the dangers for their staff of wearing or not wearing a face covering? Has anyone seen something purporting to be such a risk assessment? Does it identify a danger that they seek to address? Or the measurable benefit of the policy? Or the potential harm?
Causing any unjustified distress is a fundamental breach of contract
Pre-Covid, what employer would say to their customers, their insurer, the Health & Safety Executive (HSE) or to the Unions “We adopt policies that cause significant discomfort, upset and even distress to our staff but, we’re not monsters, we do stop short of severe distress.”
An employer who deliberately causes their employee to suffer moderate but unnecessary stress at work without reasonable and proper cause will be behaving unreasonably. Even if not going so far as to cause diagnosable injury, this would be a fundamental breach of contract. No sleep-walking adherence to unenforceable government guidance changes that.
If the employee is dismissed for refusing to wear a mask, or if the employees resigns claiming constructive dismissal in response to a fundamental breach of contract, the employee will be entitled to compensation for that dismissal.
Normally, claims for unfair dismissal are reserved to employees with two or more years’ service. However, protection may be much wider in these cases for those with disabilities and for a nation of concerned whistle-blowers.
Ask for the risk assessment
In the absence of a risk assessment that evidences justification for a policy, an employer may have great difficulty defending it.
The first and obvious step for any employee is politely to ask for a copy of the employers risk assessment(s) in relation to wearing of face coverings and for the precise reason why the policy is adopted. ‘Following government guidance’ is not a satisfactory answer since it is not government guidance.
An employee who believes wearing a face covering is likely to be harmful or unjustified should not be required to wear one and may gain special protection.
More precisely, there is specific whistle-blowing protection for any employee disclosing their reasonable belief that, for example, by promoting or enforcing the policy of wearing of a face covering:
- is likely to endanger the health or safety of any individual; or
- a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject
Many employees may have such a reasonable belief based on limited reading or research. They may be rather more convinced of endangerment from mask than of any significant likelihood of they or their colleagues suffering harm from Covid-19. In relation to other legal obligations, we have already pointed out that .
If they are concerned about being treated unfavourably, or even dismissed, for refusing or even just speaking up, they can take steps to protect themselves. They can ensure their refusal is protected as a public interest disclosure (otherwise known as whistle-blowing).
This protection is given to all workers, regardless of length of service.
How to make the disclosure
A disclosure can be verbal but, ideally, should be made in writing so that there is clear evidence of it. As a formal but clear example, taking the language of the Employment Right Act 1996, some or all of the bullet point paragraphs might apply:
“I believe that the policy and practice of requiring or encouraging wearing of masks to be worn by employees at work:
- is likely to endanger my health and safety and/or that of the rest of workforce and workers generally
- means that the environment has been, is being or is likely to be damaged by this policy because of the amount of waste being generated
- fails or is likely to fail to comply with employers’ legal obligations to care for the health and safety of their workforce”
It is not necessary to list the reasons or evidence for any such belief, but an employee may well wish to add some short (or long) explanation for their belief and this would usually be helpful. There is plenty of information out there and no doubt people will share their suggestions in social media.
An employer who dismisses or causes any detriment to an employee in response to such a disclosure may find it to be an expensive mistake.
A manager or director who treats the employee so badly in response that the employee resigns claiming constructive dismissal will find themselves personally liable to pay potentially very significant compensation.
Employees with a disability
Employees with a disability will have further protection under the Equality Act 2010.
In vast majority of cases there will be good reason for the employer to enquire about the particular disability and limited disclosure will rarely be an issue. The stages of disclosure suggested in the tool kit in our post Face covering: litigation threats and administrative headache can help guide an employee here if an employee feels that a request for information when objecting to wearing a mask is intrusive.
Assuming an employer is respectful, an employer is unlikely to be criticised for polite enquiry or for the employee having to disclose the fact of a relevant disability. As for insisting on disclosure of details to be satisfied it is a relevant disability, again most employees may be happy to disclose on a confidential basis to the appropriate manager or occupational health.
When push comes to shove and an employee suffers any significant upset or other detriment, such as loss of status, loss of earnings or even loss of their job, the employee may complain of disability discrimination. An employee who suffers detriment simply because they complain of disability discrimination will also have a stand alone claim for victimisation.
At the Employment Tribunals…
In any of these cases, the next port of call will be the Employment Tribunals where the employer will have to justify their treatment of the employee.
The extent of justification required will vary but, in cases alleging disability discrimination in particular, this will be a real problem for employers. The employer must present evidence to justify their actions. What will that be if the only evidence is that mask wearing does little or no good the likelihood of harm to their staff from Covid-19 is negligible?
“We are following government guidance” is an easy to make, convenient statement of what they are doing, but not why they are doing it or on what evidence. It is also a very problematic defence to an ordinary unfair dismissal claim or a whistle-blowing claim.
If some other justification is attempted, what will that be? Something to do with views of other staff or of customers, views they haven’t bothered to inquire into? There will be considerable expense and difficulty in gathering and presenting justification for a mask wearing policy, whatever argument might be attempted.
Claims can be cheap but cost businesses fortunes
Employment Tribunal claims need not cost the employee a penny. The Employment Tribunals do no charge any fees. Although specialist employment lawyers would be best (and we can recommend if asked), an employee can pursue the claim themselves or with help from a friend if they cannot afford, or don’t have insurance to cover, solicitors’ fees. In the vast majority of cases, the claimant employee and the defendant employer each have to pay their own way, win or lose. The same applies to defendant employees if the case is brought against them personally.
Where employees win discrimination or whistle-blowing cases, there is no limit on the compensation that can be awarded. There could be many of these cases up and down the country.
Whichever way you look at it, the face covering laws (and guidance, not law) will not be putting smiles on any employer’s face.
Employers should be checking with their insurers if they will be insured against personal injury claims that may result from wearing of masks. They are far more likely to arise and to be successful than the next-to-impossible Covid-19-based claim. The chances of an employee successfully claiming that failure to promote such a policy caused them to suffer a Covid-19 injury are so infinitesimally small as to be zero (as explained in Risk assessments: an important chink in the lockdown armour).
Insurers might well turn around and ask the business why they required masks to worn when no risk assessment justified it and when no law required it. Insurers might well be asking themselves now why they are exposing themselves to such claims.
In all events, when considering employers’ duties to look after their employees, it is difficult to see how making them wear masks fits in.
- The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020
- section 43(B)(1)(b) of the Employment Rights Act 1996
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.