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As restrictions ease in the coming months, the question of enforcement of the rules on mask use remains a source of tension and potential litigation.

Lockdown restrictions have begun to be eased across the UK and 29 March marks the next key date, with increased ability to socialise and the restarting of outdoor sporting activities. Following that, on 12 April, the expectation is that shops, hairdressers, beauty salons and fitness venues will be allowed to reopen.

Whilst the mechanics of any easing of restrictions are still subject to change, what is apparent is that the use of face coverings is likely to remain a feature of the efforts to restrict the spread of infection for the foreseeable future.

Face coverings have been a focus of controversy throughout the pandemic. Should we wear them? Shouldn’t we wear them? Where should we wear them? And do they make a difference? Is wearing a mask a political statement, evidence of blind obedience or just common sense? Or is it, quite simply, the law?

Well, for the time being at least, it is the latter in a great many settings, notably in retail. As restrictions ease and retail and hospitality venues wait with crossed fingers for confirmation of when they can reopen, the question of enforcement of the rules on mask use remains a source of tension and, it would appear, potential litigation.

In broad terms the law states that you must wear a mask in most indoor settings unless you are exempt. But since the start of the third lockdown there has been something of a hardening of attitudes by some retailers about mask use. The “no mask – no entry” sign has become a regular sight in many shop windows. Arguably this robust interpretation of the rules is leading to people becoming ever more entrenched in their attitudes to mask use – and to those who don’t wear one. The Equality and Human Rights Commission has reportedly written to supermarket CEO’s warning that such actions mean they could be breaking the law if they discriminate against people who are exempt due to a disability.

Exemptions can apply to individuals who cannot put on, wear, or remove a face covering “because of a physical or mental illness or impairment, or disability”. They can also apply where putting on, wearing or removing a face covering will cause the individual severe distress. Businesses are expected to take reasonable steps to encourage customers to follow the law but ultimately the use or otherwise of a mask is the responsibility of the individual.

But what are the risks to businesses who try to navigate the minefield between keeping customers safe, reminding people of the rules, contending with the belligerent or the mischievous and yet all the while not discriminating against customers who have a legitimate exemption?

The rules state that a person who has an exemption does not routinely need to show any written evidence of it. Whilst an exemption card, badge or “hidden disabilities” lanyard can be used, there is no obligation on the individual to do so. In response to a reminder to wear a face covering, an individual is entitled to explain that they have an exemption and, it would appear, the owner of the premises or their employee must take that at, if you’ll pardon the pun, face value. To press the point further, perhaps in seeking evidence of the right to an exemption or refusing the individual access to the premises risks an allegation of disability discrimination.

And that isn’t just an idle risk. Weightmans Retail and Leisure Sector are seeing increasing evidence from clients of what purport to be letters of claim being received by them from individuals alleging that they suffered injury to feelings as a consequence of being discriminated against on account of their “disability”. These letters often quote sections of The Equality Act 2010 before pointing to the Vento scale which is used to calculate injury to feelings awards. The lower band of that scale for “less serious awards” ranges from £900 to £9,000. Many of the letters target the higher figure, and precedents of such letters of claim currently abound online and on social media.

Disability discrimination is, quite rightly, specifically outlawed in the Equality Act and should never be allowed. People with substantial and long term conditions have, sadly, suffered significantly from the impact of the coronavirus and many retailers have gone the extra mile to protect and support their most vulnerable customers and those who support them.

To ensure that they provide the requisite protection to staff and customers whilst not exposing themselves to claims, businesses (and their insurers) need to ensure that there are appropriate, compliant and non-discriminatory procedures and processes in place. It will also be important to be able to show that staff have been trained how to respond and deal with customers who refuse to wear, or remove, their mask whilst in their stores.

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