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Expert Insights

06 August 2021

Face coverings at work post lockdown

One of the key changes as a result of the relaxation of lockdown restrictions is that face coverings/face masks are no longer legally required to be worn on public transport and indoor venues in England.   However, the government’s position is it “expects and recommends” that people continue to wear them in crowded and enclosed settings, or where the risk of transmission is likely to be greater in order to protect themselves and others.   

While the legal requirement has been lifted, employers may still consider that face coverings are a reasonable and appropriate safety measure in certain workplaces or circumstances.  The government’s Guidance on Face coverings states that businesses can require or encourage customers, clients or their workers to wear a face covering.     

In preparation for the easing of lockdown requirements, the Government issued updated guidance for businesses.  The HSE has updated its guidance on working safely following the lifting of restrictions and employers should follow the principles set out in each guidance both of which consider the use of face masks going forwards.  

Risk assessment and Guidance

One of the priority actions under the Guidance is for businesses to complete a health and safety risk assessment and to take reasonable steps to mitigate the risks identified from COVID-19 including from aerosol and droplet transmission.   The risk assessment must be done in consultation with workers or any unions.  There are a number of recommended methods of reducing droplet transmission including the use of face coverings by workers or customers particularly in enclosed and crowded spaces where they may come into contact with people they don’t normally meet. 

Employers should consider the guidance on face coverings for the particular type of workplace involved as part of its risk assessment.  The government leaves it to businesses to decide when it is appropriate to make face coverings mandatory and much will depend on the outcome of the risk assessment.  In making this decision, businesses should consider how this fits in with other obligations to workers and visitors arising from employment rights and health and safety and equality legislation.  This includes remembering that some people are not able to wear face coverings and the reason for this may not be visible to others and that it is important to be mindful and respectful of such circumstances. 

Businesses also need to be aware that wearing a face covering may inhibit communication with people who rely on lip reading, facial expression and clear sound. There are also circumstances when face coverings may need to be removed, such as for identification purposes.

If the business decides not to make face masks mandatory, they should also consider encouraging the use of face coverings for workers, contractors and visitors through signage where there are enclosed and crowded spaces. 

Can an employer make it mandatory for its employees to wear facemasks?

Although there is no longer a legal requirement to wear a facemask, an employer that has implemented a rule or policy on face coverings in accordance with guidance and its own risk assessment, will usually be able to rely on the implied duty for employees to follow lawful and reasonable instructions as the legal basis for those requirements.  Any refusal should be considered on an individual basis. If the reason is medical and the employee can provide evidence, it is unlikely that an employer can treat this as a failure to obey a reasonable instruction.

If an employer intends to require employees to wear face coverings, it should provide employees with suitable face coverings and guidance on how to use them safely, in the same way that it would with any other workplace safety equipment.

Even if the employer does not make wearing a mask a requirement, workers can, of course, choose to wear a face covering in the workplace and should be supported by their employer if they decide to do so. The Government’s guidance on face coverings sets out how they should be safely used and stored. 

What can an employer do if an employee refuses to wear a mask?

If the instruction to wear a mask is a reasonable management instruction the employer may be able to instigate disciplinary action if the employer refuses to co-operate. Reasonableness will depend on a variety of factors, including any relevant legislation or official guidance, the reason for refusal, the degree of risk, and whether other measures are available to reduce risk, for example, increasing ventilation. Where the employee’s reason for not wearing a mask relates to a disability, the employer will have a duty to make reasonable adjustments for the employee. 

In Kublius v Kent Foods Ltd a delivery driver’s dismissal for refusing to wear a facemask when entering client’s premises following two requests was held to be fair.  A Tribunal found that the decision fell within the range of reasonable responses given the importance for the employer of maintaining good relationships with its clients, the practical difficulties arising from the fact that the employee was banned from the client’s site as a result and the employee’s insistence that he had done nothing wrong which caused concern about his future conduct.   This is a Tribunal decision and therefore not binding on other Tribunals but it gives an indication of how this issue might be approached.  However, much will depend on the particular facts of the case. 

Summary

The Government has put the onus back on businesses to decide whether to encourage or require the wearing of a facemask/face covering in the workplace.  It should be remembered, however, that this is not the only way of reducing the likelihood of transmission of COVID-19 and that other measures of control and to reduce risk are also important and effective. These include providing adequate ventilation and taking steps to improve fresh airflow in any poorly ventilated spaces, cleaning more often, putting in place measures to reduce contact between people (e.g. using screens or barriers to separate people or using back-to-back working instead of face-to-face) and encouraging good hand hygiene.


For more information, please contact Ben Smith. 

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