It’s important for everyone to be safe

The clear public health message is that covering our faces benefits all of us, and so if you can wear a mask, you should do so. There’s a great deal of confusion and misinformation about what service providers such as retailers can and cannot do about face coverings.

The regulations covering this are the Health Protection (Coronavirus, Wearing of Face Coverings) Regulations (Northern Ireland) 2020, as amended. They do not prevent service-providers from setting stricter admission rules for their own shops in the interests of protecting customers’ and employees’ health and safety. And the health and safety legislation requires employers to do ‘what is reasonably practicable’ to protect their staff and members of the public.

This must be balanced with the rights of disabled people under the law and the reasonable adjustment duty of the Disability Discrimination Act.

And then there’s the issue of people who simply will not wear a mask but do not have a legitimate exemption. The actions of people who just refuse to cover their faces add to the difficulties encountered by people with genuine exemptions and puts everyone at risk. They also add to the difficulties faced by retailers and employers in determining their policies on the issue and their ability to make reasonable adjustments.

How can retailers negotiate a way through what look like competing duties under the law?

The purpose of face coverings and masks is primarily to protect other people, rather than the wearer. Throughout the pandemic, many people with disabilities are keen to maintain their independence and want to act responsibly by wearing a face covering to enable them to shop for themselves. However, there are some people with conditions that may not be immediately obvious who just cannot wear a face covering. These would be genuinely exempt under the law. At the same time, retailers have a duty to their staff and customers to provide a safe environment.

Retailers do not in fact have to admit people not wearing masks if they can provide a reasonable alternative way for disabled people to access their services. Retailers should not make assumptions about customers not wearing a face covering. However, it is important that shops and services remain accessible to people with disabilities and all service providers, including retailers, are required by law to consider what reasonable adjustments they could make to ensure that disabled people can use their services. This might mean offering to shop for them, offering home delivery or encouraging them, or even showing them how, to use online delivery or collection services.

There is a danger that retailers who do not make a reasonable adjustment for a person with a condition that means they cannot wear a face covering may risk incurring claims of disability discrimination. We recommend that retailers, rather than asking customers to prove they have a disability, should talk to them with tact and respect about their needs, explaining the rules that keep everyone safe, and together establish a way of enabling them to access the service.

It is important for everyone to be safe in the context of the pandemic, where any action or inaction can have serious consequences.

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