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Legal changes

COVID-19 and face coverings and issues facing retailers

The police can issue a £200 fine for anyone breaking face covering rules, doubling for each offence up to a maximum of £6,400.

Requirement for face coverings

In the early stages of the pandemic the UK Government appeared reluctant to advise the general public to wear face coverings. In June 2020 it required people to wear face coverings on public transport and then this was extended to shops and supermarkets in July 2020. This shift appears to be due to a better understanding developing as to how COVID-19 spreads. 

Face coverings are now mandatory in most indoor public settings including shops, bars, cafes, museums, places of worship and restaurants including for staff unless there is a physical barrier in place. There is no requirement for the coverings to conform to any particular manufacturing standard.

The police can issue a £200 fine for anyone breaking face covering rules. Repeat offenders will have their fine doubled for each offence up to a maximum value of £6,400.

Retailers’ duties

Businesses are required to ensure that customers know the rules in relation to face coverings. According to the Government Guidance they should “take reasonable steps to promote compliance with the law”. Most retailers have signage near the front door to remind customers of the requirement to wear masks and some have public announcements reminding people of the rules.

Exemptions

Some members of the public are exempt from mask wearing if they have a reasonable excuse. This includes children under 11 (in England); those unable to put on or wear a face covering because of physical or mental illness or disability; people for whom wearing or removing a face covering will cause severe distress; or anyone assisting someone who relies on lip reading to communicate. There is no definition of severe distress but this might include panic attacks or severe anxiety symptoms.

There is no legal requirement to carry an exemption card but some people feel more comfortable wearing a badge or showing an exemption card and there is a Government template available for this.

Challenging those not wearing masks

The Government has urged people to be mindful and respectful of the circumstances when people cannot wear a face covering and they have said that members of the public should not challenge people who are not wearing one.

In terms of whether retailers and their staff have a duty to approach customers who are not wearing face coverings, the requirement is that businesses make customers aware of the requirement for face coverings. It is not a legal requirement to tackle those who are not wearing a mask.

The trade union representing shop workers, Usdaw, said if staff are required to confront non-compliant shoppers it could create “a major flashpoint for abuse, threats and violence”. They say it is not the responsibility of shop workers to enforce this. The police have also cited limited resources in relation to calls for them to take a leading role in enforcing the wearing of face coverings in shops.

During the third lockdown in England, there have been moves by the larger retailers to clamp down on face coverings being worn by customers. Some have employed marshals to stand at the entrances and offer masks free of charge to customers and are denying entry to anyone who refuses to comply without a valid exemption.  

Disability discrimination?

A request by a shop worker or marshal to a disabled person to wear a face covering is very unlikely to result in a successful claim for disability discrimination provided the shop is following the Government Guidance and is not singling out the disabled person for less favourable treatment than other non-disabled customers.

Retailers should however be mindful that the customer does not have to carry proof they are exempt and staff should be considerate of the potential embarrassment which may be caused to the customer. They should ensure that they comply with the Equality and Human Rights Commission Guidance on Retailer’s responsibilities to disabled customers.

If matters escalate and the police are asked to attend to deal with an incident related to the non-wearing of face coverings, they may ask for proof of an exemption. If they suspect the rules are being breached the police can issue a Fixed Penalty Notice or ask the customer to leave the premises. Recent data suggests that 958 Fixed Penalty Notices have been issued for breaches of the rules relating to face coverings between June and December 2020.

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