Today (April 12 2021) England takes its next step out of coronavirus lockdown, giving millions of people a portion of their freedom back. However, many restrictions remain in place. Employment lawyer Lucy Flynn examines the issues around wearing face masks in the workplace.
Question: what do the following have in common?
- Theatres
- Casinos
- Spas
- nail, beauty and hair salons
- tattoo studios
- auction houses
- funeral directors
- polling stations
Answer: those following the ever-evolving COVID-19-related legislation will know that the above places were recently added to the list of relevant places where face coverings must be worn under the catchily-titled Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020, which have been amended, added to and supplemented several times by various new statutory instruments and government guidance documents most recently on 30 March 2021 (“the Regulations”).
The full list of relevant places now stretches to around 20 categories, and the Regulations provide that no person may, without reasonable excuse, enter or remain within a relevant place without wearing a face covering, unless that person falls within one of the exemptions, which includes children under 11, non-excepted employees acting in the course of their employment and elite sportspersons undertaking training or taking part in a competition.
Given that the majority of businesses opening today (12 April 2021) employ neither children nor professional sportspersons, they will need to understand whether their employees will fall within the category of those exempt from wearing face coverings when returning to the workplace.
The February 2021 employment tribunal case of Kubilius v Kent Foods Ltd concerned the dismissal of a lorry-driver employee, who refused to follow the instructions of a customer to wear a face covering on its site whilst in the cab of his vehicle. Mr Kubilius said he would wear a face covering on site when not in his vehicle, but when he was inside his cab, this was his space and there was no legal requirement for him to cover his face. The customer reported this refusal to Kent Foods Ltd, and banned Mr Kubilius from its site. Kent Foods Ltd dismissed Mr Kubilius summarily and without notice; not for the refusal to wear a face covering per se, but rather his refusal to follow the on-site rules of the customer. The employment tribunal decided that the dismissal was within the range of reasonable responses available to Kent Foods Ltd in the circumstances and that it was fair.
The Regulations tell us that employees acting in the course of their employment are exempt from wearing a face covering when working inside a relevant place, but the employment tribunal has ratified a recent decision of an employer who dismissed an employee for refusing to wear a face covering when there was no legal requirement for him to do so.
When must employees wear a face covering at work and when are they exempt from doing so?
On the whole, employees and others providing services indoors at a relevant place are exempt from wearing a face covering unless they are:
- acting in the course of their employment or providing services; AND
- they are working in any part of a relevant place which is open to the public; AND
- they come or are likely to come within close contact of any member of the public.
Where an employee or service provider is provided with respiratory protective equipment (RPE) by their employer to meet any of the relevant statutory provisions as defined by section 53 of the Health and Safety at Work Act 1974 in respect of any tasks they are performing, that person will, in wearing that RPE, be treated as complying with the requirement to wear a face covering.
Additionally, where a business has taken steps to create a physical barrier between the worker and members of the public, there is no need for staff behind the barrier to wear a face covering.
Therefore, and in the main, it is those in the retail, leisure and hospitality industry working in any indoor area that is open to the public and where they’re likely to come into contact with a member of the public who must wear a face covering at work.
However, what is clear from the legislation and the guidance is that the onus is very much on the employer to have ongoing and visible control over the management of COVID-19 risks in the workplace, including the wearing of face coverings.
Risk assessment
Employers must perform a risk assessment for their business which addresses the risks of COVID-19 to their staff and the public, to inform decisions and take control of the measures they will take including; –
- limiting close-proximity working
- social distancing
- high standards of hand hygiene
- increased surface cleaning
- fixed teams or partnering
- screens or barriers to separate people from each other
- provision of face coverings to be worn and clear guidance regarding when to wear it
Employers will be expected to conduct regular and transparent workplace health and safety assessments regarding the use of face coverings on a case-by-case basis and depending on the workplace environment and whether exemptions or reasonable excuses apply.
