Face covering – some pretend law

Fiction:

Everyone must now wear masks everywhere, except offices and outside, and controllers of premises can always insist they are worn.

Law:

From 24 Sept, the places in which face covering must be worn, and by whom, has greatly expanded. However, rarely understood but significant ‘reasonable excuses’ remain.

In England the wearing of a face covering in ‘relevant places’ had, subject to a ‘reasonable excuse’ exemption, been made a legal requirement from 24th July 2020. Children under the age of 11 are excluded.

The ‘relevant places’ were all shops, enclosed shopping centres, arcades and any enclosed parts of port, airports, bus and train stations (‘transport hubs’). The definition of ‘shop’ is very wide (a building or room used mainly for the purposes of retail sale or hire of goods or services) and the previously long list of exemptions has from 24 Sept been largely removed.  So, for example, no longer exempted are:

  • Banks, building societies, credit unions, short-term loan providers, savings clubs and undertakings which by way of business operate a currency exchange office, transmit money (or any representation of money) by any means or cash cheques which are made payable to customers
  • Post offices
  • Community centres, youth centres, members clubs and social clubs
  • Public areas in hotels and hostels
  • Concert halls, exhibition halls, conference centres or other public halls
  • Cinemas
  • Museums, galleries, aquariums, indoor zoos and visitor farms and other indoor parts of tourist, heritage or cultural sites
  • Bingo halls
  • Public libraries and reading rooms
  • Nail, beauty, hair salons and barbers

PLUS

  • taxis and private hire vehicles

PLUS

  • restaurants with table service, including restaurants and dining rooms in hotels or members’ clubs
  • bars, including bars in hotels or members’ clubs
  • public houses
  • areas at transport hubs where seating or tables are made available for the consumption of food and drink

There is no law that masks must be worn when walking to a table and can be removed when sat down, even though this will no doubt be the practice as followed in some other European countries.  The simple blanket rule is that masks are to be worn. It must be, therefore, that just as the government can pretend PCR testing is effective, it can pretend that if we are sat at a table, whether for 4 minutes or 4 hours, then we are eating and drinking throughout, even when we’re mostly just having a chat. If the clipboard carriers don’t also pretend, then the bars may get a bit livelier than expected.

(This may not be a surprise to our readers who already know that standing outside a supermarket in a queue of more than 6 (previously 30) is, in fact, illegal under the regulations. See Beach visits cannot be restricted.)

Where it is still guidance, not law

Specifically exempted from the definition of shop are:

  • Fitness studios, gyms, dance studios, leisure centres, swimming pools or water parks
  • Premises (other than registered pharmacies) providing wholly or mainly medical or dental services, audiology services, chiropody, chiropractic, osteopathic, optometry or other medical services including services relating to mental health.
  • Photography studios.

Schools and universities are not within the relevant places.  What happens in the class room, lecture theatres and accommodation there is controlled by the schools, local authorities and universities themselves. They are responsible for whatever view they choose to take of quite separate law and guidance. (Some citizens may be looking to their contractual agreements with such institutions when they don’t get what they paid for.)

Also, referred to as a ‘must’ within guidance, but not listed as ‘relevant place’ and so where the face covering regulations don’t necessarily bite unless they are considered to be a ‘shop’ (a building or room used mainly for the purposes of retail sale or hire of goods or services):

  • premises providing veterinary services
  • visitor attractions and entertainment venues (aquariums, adventure activity centres, indoor sports stadiums, funfairs, theme parks, skating rinks, bowling alleys, indoor play areas including soft-play areas)
  • storage and distribution facilities

Again, for the moment (watch this space), the government relies only on misconceived, but still effective, threats:  see Risk assessments: an important chink in the lockdown armour,

Employees and workers and ‘close contact’

ADDED from 24 Sept, employees and workers providing services at the premises are required to wear face covering (unless reasonable excuse exemption applies – see below) in any area of the premises which is open to the public AND where they are likely to come within “close contact” (see below) of any member of the public.

The ‘and’ is important. An employee or worker is not required to wear the face covering during such time as they will be likely to remain more than, we say, 1 meter away from the public. This is apparent because, though ‘close contact’ is not defined in these regulations, it has since been defined in The Health Protection (Coronavirus, Restrictions) Self Isolation) (England) Regulations 2020, reg 5.:

  • having face-to-face contact with someone at a distance of less than 1 metre,
  • spending more than 15 minutes within 2 metres of an individual,
  • travelling in a car or other small vehicle with an individual or in close proximity to an individual on an aeroplane;

Employers do not have to go further than the law requires and far fewer workers fall will within the above than might have been thought previously.

Otherwise, the drafting appears deliberately wide enough to refer to anyone working or providing any services at the premises e.g. to include an independent engineer coming to fix the air conditioning unit.

In passing, one particular exclusion to the list of fairly specific exempt workers (essentially for police and in sports and dance situations) is for “to a performer performing in the course of their employment or in the course of providing their services.”  Chance might be a fine thing, but perhaps some creativity here may be encouraged here.

As for issues arising specific to the employment relationship, a ‘reasonable excuse’ remains a key concept (see below). This post also remains relevant to all industries, not just shops: Time to blow the whistle on shops.

What is a face covering?

“face covering” remains “a covering of any type which covers a person’s nose and mouth”. Although examples in the guidance include a scarf, bandana, religious garment or hand-made cloth covering, there is no reference to guidance in the regulations and the guidance is not mandatory.

Reasonable excuse exemption

The reasonable excuse exemption have not changed.  Non-exhaustive Examples of a ‘reasonable excuse’ not to wear a face covering include:

  • you cannot put on, wear or remove a face covering because of a disability (within the meaning of section 6 of the Equality Act 2010(1))
  • accompanying or providing assistance to someone relying on lip reading to communicate with you;
  • removing your face covering to avoid harm or injury, or the risk of harm or injury, to yourself or others;
  • entering a relevant place to avoid injury, or to escape a risk of harm, but not having a face covering with you
  • it is reasonably necessary to eat or drink;
  • to take medication;
  • a person responsible for a relevant place (or their employee) requires it to verify your identity;
  • in a registered pharmacy, to assist in the provision of healthcare;
  • a ‘relevant person’ requests it
‘severe distress’ – what the government wants to see but you don’t have to suffer

It is noteworthy that, unlike other regulations, “to avoid illness” is not listed as a reasonable excuse. Instead, another specific excuse is you cannot put on, wear or remove a face covering “without severe distress”.

This phrase has been a feature of government guidance. In some respects it sets a lower bar than ‘disability’ because a long term condition is not required. This could, therefore, cover an acute reaction to being required to wear a face covering. In other respects, this sets a high and cruel bar indeed. The implication is the government requires your stiff upper lip to include suffering periods of anxiety and mental or physical fatigue which could be very distressing and cause illness yet not, in the opinion of the relevant person without any medical qualification, causing ‘severe’ distress.

However, it must be remembered that the list is not exclusive. Your reasonable excuse might not be in the list. Also, there is the excuse “to avoid harm or injury, or the risk of harm or injury”.  Since a face covering can be ‘removed’, it seems that a face covering may need to be carried or worn first, but removal might be reasonable to avoid harm, or mere risk of harm, even if the immediate distress is not demonstrably ‘severe’. 

Notwithstanding the subtle wording, ‘harm’ may in ordinary language be thought to be a likely consequence of illness and if the government really wanted to say illness from masks is tolerable, they should be expected to come right out and say it. For that reason, our post Low mood – a reasonable excuse to ignore coronavirus restrictions is important.     

Who will enforce this?

In practice, controllers of premises have been responding to threatening behaviour from Environmental Health officers, telling them that health and safety laws require them to keep their premises “Covid Secure”.  (We have a contrary view: Risk assessments: an important chink in the lockdown armour, but the threats have been and remain effective in practice.)

Employers and controllers of premises seem likely to require face covering to be worn and an individual who objects will need to be acquainted with the reasonable excuse exemptions above and Low mood – a reasonable excuse to ignore coronavirus restrictions.

Police, police community support officers, TfL officers, and any other person designated by the Secretary of State for Health are the ‘relevant persons’ who can issue Fixed Penalty Notices in theory. Significantly, unlike other regulations, ‘relevant persons’ do not include persons designated by Local Authorities. The enforcement of wearing face covering will, therefore, be mostly by fear and intimidation but with likely very few fines being issued.

If a ‘relevant person’ considers that you are not wearing a face covering when you should be, they may direct you to wear a face covering and to leave the relevant place. A police constable may use reasonable force if necessary, but not others.

Apart from expectation of significant disagreements arising, there is good reason for keeping businesses and local authorities out of enforcement.

They might include that they would be putting themselves in very obvious risk of disability discrimination. There is significant portion of the population who by reason of their disability are put at a substantial disadvantage if required to wear a face covering. This may include, for example, citizens who suffer from deafness or otherwise need to see lips or full face for communication, asthma or other respiratory conditions, anxiety, depression, general anxiety disorder, paranoia, schizophrenia among many others.

The regulations do not and cannot trump discrimination law

Anti-discrimination laws in the Equality Act 2010 cannot be overwritten by these regulations. The Equality Act provides fundamental protections for citizens with disabilities. These also overlap with rights to a privacy and autonomy having to be treated with reference to their disability (or, for that matter, their gender, race, sexuality etc.)

What should businesses do?

Businesses and their staff are best advised not to challenge those who refuse to wear a face covering.  Otherwise, at some point in the day there is likely to be a time when someone with a disability is challenged. Depending on how the situation develops, and this could be within minutes or seconds, a situation may arise when the business, and the person conducting the challenge, may find they have committed:

  • an offence for which they are liable on summary conviction to pay a fine of up to £5,000  – section 112 (Aiding contraventions) of the Equality Act 2010; and/or
  • an act of disability discrimination and be ordered to pay to any individual who suffers injury to feelings compensation between £900 and £9,000 – section 119 (Remedies) of the Equality Act 2010

With that in mind, consider the following.

Standing up for others

There will be real concern that those who are already vulnerable will be subject to harassment from those who do not appreciate their disability and who misunderstand that law. They may live to regret it since ignorance of the law will be no excuse when they find themselves in Court.

Those who support and stand up for the rights of others do not have to have a disability themselves in order be protected. The Equality Act 2010 provides protection for those who are treated unfavourably because of someone else’s disability, just as if the disability was theirs.

How to assert your reasonable excuse

There will be many ideas about this. Suing should not necessary but no one likes the threat of litigation. We have provided a toolkit in Face covering: litigation threats and administrative headache.  Also, and perhaps of wider application and defence against any proposed Fixed Notice Penalty for those who do not have a specific disability, do note: Low mood – a reasonable excuse to ignore coronavirus restrictions.

How long may this go on for?

The regulations are set to expire after 12 months from 24 July 2020. Review is not scheduled for before 6 months.

Fines and offences

A relevant person can issue a fixed penalty notice to anyone they reasonably believes has committed an offence under the regulations and is 18 or over. Increasing the level of threat, the fine has been INCREASED from £100 to £200, reduced by 50% if paid within 14 days.  Subsequent fines double until they get to £6,400.

A person who, without reasonable excuse, obstructs, contravenes a direction, or fails to comply with an instruction from an enforcement officer under the regulations commits an offence punishable on conviction by a fine.

Wales Welsh Flag Free Stock Photo - Public Domain Pictures

The Welsh Assembly Government, led by First Minister Mark Drakeford, followed suit in making wearing of face coverings on public transport ‘compulsory’.  The law or guidance does not always change with England and it is a pretty dull game to play spot the difference.  However, from 14 September, Wales got ahead of England in the mask stakes, when face coverings became required under guidance, essentially, for “all indoor public places”.

Wales generally adopts the strategy of making it a legal requirement to ‘have regard to’ government guidance i.e. in terms, only to depart from it with good reason. (In that respect, remember the ‘reasonable excuses’ as above, although the standard wording “to avoid illness” is retained the law in Wales. Good spot laworfiction.) It may be as well simply to quote some of the guidance to which regard must be had:

“Face coverings will be required in all indoor public places, for both customers and staff working in those indoor public areas. This includes a very wide range of locations, such as shops and shopping centres, places of worship, hairdressers and salons, cinemas and museums, gyms and leisure centres, and anywhere that is open to members of the public.

“It would also include any public areas within buildings that are otherwise closed to the public – for example a reception area of an office building.

“The only indoor public areas where face coverings will not be required are where you are inside a place to eat or drink, for example, cafés, restaurants and pubs. But where food and drink is only being served for consumption in part of the premises – for example, a café which also offers take away services – you will need to wear a face covering in the parts of the premises where people are not eating or drinking.”

The guidance, given it has the force of law, extraordinarily includes such things as not to read a newspaper, sing, or run for the train if you are late. Do note that the school transport is specifically exempted from requirement to wear face covering. Drivers and schools should be challenged if they suggest your child wears a mask.

 

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.

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7 thoughts on “Face covering – some pretend law”

  1. It would be helpful if you could add Scottish law in there as well , so sheeple here , can go out with confidence knowing the truth
    Thanks if it is possible

    1. Yes, it would be very helpful. The structuring and phrasing of the Scottish regulations seems quite different, even though the overall thrust is the same.

      For example, doesn’t use the phrase “reasonable excuse”, and the structure and phrasings shift a little for “face coverings” exemptions every time some other parts of the regulations are amended. The “avoid injury” exception now seems to be attached to a condition associated with “giving assistance”, in a way hard to unpick, from September 14th.

  2. I carry a Ventolin inhaler, to treat on-going Asthma. So far, when challenged, I have shown the inhaler to the challenger, which has been accepted – so far. Has this changed since 25th Sept (today)? An article “Your guide through the mask minefield” was published about six weeks ago, which stated that carrying and proffering an inhaler, or carrying a prescription for one, would allow exemption. Has this changed?

  3. Pingback: Latest News – Lockdown Sceptics

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