Face masks and face coverings can make it more difficult for people who stammer to talk or be understood. Covid-19 regulations in England no longer legally require a face covering to be worn. However some employers require staff to wear a face covering. Also some businesses and organisations – for example hospitals – require customers or patients etc to wear one. What rights do you have if this causes you difficulties communicating?
Summary: Difficulties and what may help
- Whatever possible exemptions there are, it is a good idea to wear a face covering so far as you can, in any situations where it is still officially required or recommended, to reduce the spread of Covid-19.
- You may find that wearing a face covering makes it harder to communicate (below).
- You could experiment to see if a different type of mask helps. If the problem is that people cannot see you are trying to speak, you could try a transparent mask, wear an “I stammer” face mask, or show an “I stammer” card. Below Experimenting, transparent face mask, or ‘I stammer’ mask or card?
- You can get a card or lanyard (below) to show you have a hidden disability and are claiming exemption from wearing a face covering.
Summary: Government guidance
- Regulations in England no longer legally require people to wear a face covering, and generally Covid-specific guidance in England was withdrawn from 1st April 2022. However guidance on respiratory infections in England still suggests wearing a face covering in some situations. Below Government guidance and regulations.
- Present guidance is more general, but the more detailed English guidance before April 2022 recognised that some people will not be able to wear a face covering, and seemed to imply that being unable to communicate orally is a valid reason not to wear one in a conversation. Below What the government guidance said about exceptions.
- There are also links below to Face covering regulations in Scotland, Wales, Northern Ireland.
Summary: Employers and service providers requiring face coverings
- Even without the regulations (in England), some employers have decided to require workers to wear face coverings. Also some businesses and other organisations (eg hospitals) require customers/patients etc to wear face coverings on their premises. (Others may recommend a face covering but leave it to the individual’s discretion, which should not be a problem if you need to remove it to speak.)
- If an employer requires workers to wear a face covering (below), the employer is obliged to make reasonable adjustments if it causes problems for a worker who stammers. Health and safety considerations are relevant, but it should normally be possible to find a satisfactory solution. Particular issues may arise for jobs such as front line healthcare workers.
- Similarly service providers (below) who decide to require customers or patients etc to wear a face covering are obliged to make reasonable adjustments under the Equality Act. Often though the service provider may leave it to the customer’s discretion, or may say it will not enforce any recommendation to wear one, in which case the reasonable adjustment duty may not be needed.
- I discuss some examples below: health services such as hospitals and GPs, universities, Transport for London (which from 24th Feb no longer requires face coverings) and National Rail.
- Apart from failing to make reasonable adjustments to a policy on face masks, service providers may also be liable for other types of Equality Act claim.
Government guidance and regulations (England)
For the public the main general guidance in England from 1st April 2022 is on respiratory infections rather than Covid specifically, namely Living safely with respiratory infections, including COVID-19 (gov.uk). It is guidance only, not the law. It has a section on when to consider wearing a face covering or a face mask (gov.uk) saying:
When to wear a face covering
– when you are coming into close contact with someone at higher risk of becoming seriously unwell from COVID-19 or other respiratory infections
– when COVID-19 rates are high and you will be in close contact with other people, such as in crowded and enclosed spaces
– when there are a lot of respiratory viruses circulating, such as in winter, and you will be in close contact with other people in crowded and enclosed spaces
Note: This and other guidance suggest extra precautions if one has symptoms or has tested positive for Covid, and is unable to stay at home.
Guidance aimed at business from 1st April 2022, again on respiratory infections generally, is Public health principles for reducing the spread of respiratory infections, including COVID-19, in the workplace (gov.uk), replacing the previous “Working safely during Coronavirus” below.
This guidance on “respiratory infections” including Covid and flu replaced previous guidance specifically on Covid which was withdrawn at the end of March 2022. Previous guidance included Face coverings: when to wear one, exemptions and what makes a good one (archive of gov.uk at 30 Mar 2022) and sector-by sector guides for businesses Working safely during Coronavirus (archive of gov.uk at 1 Mar 2022).
Regulations no longer require face coverings to be worn in England. Up to the end of 26th January 2022, regulations specifically required passengers on public transport, customers in shops etc and some staff to wear face coverings in England, subject to exemptions. The regulations were SI 2021/1340. I discuss the old regulations on Archive: Face covering regulations and stammering.
What the regulations and government guidance said about exceptions
The English face covering regulations up to January 2022 had a specific exception for a person accompanying someone who relies on lip reading. The regulations also had an exception for any other “reasonable excuse”, and government guidance (in If you’re not able to wear a face covering (archive of gov.uk at 30 Mar 2022)) said that people with a reasonable excuse also included those speaking to or providing assistance to someone who relies on clear sound or facial expressions to communicate.
After the regulations expired, that guidance continued (up to the end of March 2022) to say exceptions included “people speaking to or providing assistance to someone who relies on lip reading, clear sound or facial expressions to communicate”.
This seems to imply that the former regulations and guidance saw inability to communicate orally as a valid reason for not wearing a face covering in a conversation. I discuss this in more detail at Archive: Face covering regulations and stammering>Technical note: Argument for wider interpretation of exemption in regulations. (I also discuss similar issues in the context of Transport for London since TfL’s guidance was largely drawn from the same government guidance: below Archive: Transport for London (TfL) before 24th Feburary 2022.) For some people another exception specifically listed in the former regulations and/or guidance may apply, such as if wearing a face covering causes them severe distress.
Face covering can make communication harder
Face coverings can make it more difficult for people who stammer to talk. Face coverings can also make it more difficult for any speaker to be understood, but particularly if the speaker has a stammer. Furthermore, face coverings can make it more likely that someone who stammers will be interrupted because the listener cannot see they are trying to speak. The listener may even walk away, thinking the conversation has finished. For example:
- Wearing a mask while having a stutter – Covid-19 (YouTube video), May 2020 – people can’t see he’s struggling to speak, and the mask reduces airflow so his speech is quieter. A lot of people find it difficult to understand him when he is both stammering and talking at a low voice.
- “I find that my voice is muffled, which causes me to speak louder or repeat myself before my co-workers hear me. Whenever I have to speak louder, I tend to stutter more. Whenever I have to repeat myself, I’m inevitably fluent the first time, but stutter a lot when I repeat what I said”: My stammer during the Covid-19 pandemic (stamma.org).
- If using the “costal breathing” technique, a face covering may make it difficult to take a deep breath through the mouth.
- ‘I struggle to get my point across’: What it’s like to wear a face mask while having a stammer (manchestereveningnews.co.uk), August 2020 – it’s hard for people to hear or understand him with the face mask on, so when he talks he needs to put the mask down. Also it affects breathing techniques he uses for his stammer. The article also includes comments by STAMMA (British Stammering Association) on experiences they have heard.
There are more quotes by people who stammer on Face coverings/ face masks (stamma.org), including listeners not being able to see from the lips that the person is struggling, and being more likely to interrupt.
Experimenting, transparent face mask, or “I stammer” mask or card?
If breathing techniques are a problem (or speech is muffled?), you could experiment with different types of face mask to see if they help, such as looser or more breathable ones. Or try a face mask bracket or nose bridge strip (search them online) to hold the mask away from the face/nose.
If the problem is that the listener cannot see you are trying to speak, it may be helpful to try a face covering/mask with a clear panel. There is a Which guide Clear face masks: what to know before you buy (which.co.uk). A speaker who stammers may be less stressed if the listener can see from their mouth that they are stammering. Also it may discourage listeners from interrupting. However people are different and this will not be a solution for all who stammer, eg if the problem is that a face covering muffles one’s voice or restricts airflow. Also you might find the clear panel gets misted up.
Some clear masks have been used in UK healthcare settings, and so may potentially be more effective than others:
- Transparent anti-fog Panoramic Mio-Masks (cambridgeindependent.co.uk), April 2021, have been approved for use in the NHS. Manufacturer’s web page www.ljamiers.co.uk/panoramic-mio-mask/
- Starting in 2020, ClearMasks with an anti-fog coating were made available to NHS and social care workers, though the RCSLT (see link) said it was not of clinical grade. There is Royal College of Speech and Language Therapists guidance on transparent face masks including ClearMasks at RCSLT COVID-19 guidance (rcslt.org).
- BrillianSeeTM Transparent Medical Mask (bluetreemedical.co.uk), single-use transparent face mask invented by Alder Hey Children’s Hospital.
Disclosing stammer on mask or card
Alternatively Stamma in the UK has produced “I stammer” face masks, available for purchase in the UK only: stamma.org/shop/face-masks.
If you want to be even more loud about it, you can get a face mask saying “I stutter, wait for my brilliance” (redbubble.com).
Someone produced their own card saying “I have a stammer. Please be patient”, to show the listener when wearing a face covering.
Face masks and my ‘I stammer’ card (stamma.org)
Another option if the problem is that the listener cannot see you are trying to speak: you can show people you stammer with these free downloadable ‘I stammer” cards (stamma.org).
Card, badge or lanyard to show disability
If you want something to show you are claiming exemption from wearing a face covering (discussed below), there are various options. Even when the regulations were in force though, exemption was not normally dependent on whether you had a card etc.
- Government templates for exemption card or badge (gov.uk);
- “Hidden disabilities” lanyard or card https://hdsunflower.com;
- there are also badges, eg on etsy.com.
Removing a face covering only when need to speak?
If you’re proposing not to wear a face covering to help communication, where you normally would wear one, it’s probably best to remove the face covering only as and when you’re actually having a conversation, at least if it’s crowded. However putting the face covering back on whenever the other person is speaking is not going to work.
Government guidance up to the end of March 2022 said “avoid taking [the face covering] off and putting it back on a lot in quick succession to minimise potential contamination”, and included advice on washing or sanitising hands before putting it on, and before and after taking it off: Face coverings: when to wear one and how to make your own>How to wear a face covering (archive of gov.uk at 30 Mar 2022).
Face covering regulations in England previously required many retail, leisure and hospitality staff to wear face coverings, subject to exemptions. However these regulations expired on 26 January 2022.
If an employer just encourages workers to wear a face covering but leaves the decision up to them, the worker has a discretion to remove it if they need to in order to speak (or not to wear one at all). However even though not now required by the regulations, some employers may decide to require their workers to wear a face covering, at least in certain circumstances – probably on grounds of health and safety (having done a risk assessment).
If an employer requires you to wear a face covering and this makes communication unduly difficult because of the stammer, the employer may be obliged to make a reasonable adjustment under the Equality Act. This assumes the stammer is a disability within the Equality Act, which seems likely if the face covering causes difficulties. How far the employer is obliged to make an adjustment depends on what is reasonable in all the circumstances. The adjustment might be that you don’t need to wear a face covering in speaking situations. Sometimes it may be appropriate to put in place extra measures to minimise the risk of infection when you’re not wearing a face covering.
The employer’s policy on face coverings will probably already have some exceptions for disability, because of the Equality Act. But stammering often gets forgotten. If there are exceptions for other disabilities, a good question to ask might be why not for stammering? – when you need to speak.
Health and safety will often be a key concern of the employer. Employment tribunals are likely to consider what adjustments are genuinely reasonable or justified on the individual facts, whilst taking government guidance into account. With the relaxation of guidance (certainly in England) and the spread of vaccination, it may now be more difficult for employers to justify insisting on face coverings unless staff are in close contact with vulnerable individuals, including perhaps a work colleague whose weakened immune system means they are at higher risk (gov.uk). For example, was the employer’s rule requiring face coverings based on previous Working safely during Coronavirus (archive of gov.uk at 1 Mar 2022) guidance which was actually withdrawn from 1st April 2022 (above Government guidance and regulations (England))? Indeed did that “Working safely” guidance for your sector and work situation recommend face coverings even before the end of March? It may be helpful too that English face coverings guidance up to the end of March 2022 seemed to imply that being unable to communicate was a valid reason generally not to wear a face covering (above What the government guidance said about exceptions).
But it will depend on the particular circumstances. You could think about your particular work arrangements. For example when you’re on a telephone call in a room – preferably well ventilated – either on your own or a long way from anyone else (or at least from anyone particularly vulnerable), it might be argued that a face covering is not important. Also it may be possible to make fairly simple changes, such as those suggested below.
Assuming the employer has legitimate concerns, you will want to discuss how to reasonably address them in a way that lets you communicate. For example:
- if speaking on phone calls is the issue, these might be done somewhere away from other staff, or at least away from anyone particularly vulnerable, eg in a separate room if you’re normally in an open plan office (compare adjustments for open plan offices);
- when you’re not wearing a face covering, measures such as greater distancing, improved ventilation, dividing screens, and/or not facing each other;
- the employer providing face coverings with a transparent panel if this helps, or if it helps you could use an “I stammer” card or a face mask saying “I stammer”: above Transparent face mask or ‘I stammer’ card may help;
- perhaps reallocating phone duties, or reallocating duties in other ways if possible, eg to avoid parts of the job which involve close contact with customers or patients;
- shifting to a different job might be reasonable as an adjustment if another solution is not available.
Jobs such as front line healthcare will often require greater personal protective equipment (PPE). Here it is likely to be particularly important that any reasonable adjustments still minimise the risk of infection. It may not be possible to avoid wearing an appropriate medical grade face mask if continuing to have close contact with patients. If it helps in your case, a medical grade face mask with a transparent panel may be possible. These may in any event be required for staff communicating with patients who rely on lip-reading or facial expression, so it may be part of the anticipatory reasonable adjustment duty that the hospital etc has to patients to have these available.
Service providers requiring customers etc to wear face coverings (England)
Face covering regulations in England previously required people to wear face coverings on public transport, in shops and many other places, subject to exemptions. However these regulations expired on 26th January 2022.
Now if a service provider just encourages passengers or customers to wear a face covering but leaves the decision up to them, the individual has discretion to remove it if the individual needs to in order to speak (or not to wear one at all).
However some businesses and organisations have decided to require customers or patients and visitors etc to wear a face covering. They may decide to refuse entry to someone not wearing a face covering, or to require the person to leave. Examples include:
- Hospitals, GPs and other NHS healthcare settings may still require face coverings, see below Health services
- Perhaps some universities (below) and FE colleges.
If a service provider requires face coverings to be worn rather than leaving it to the customer’s discretion, it has a duty to make reasonable adjustments to make its service accessible to people with disabilities. This is an anticipatory duty, so the duty applies even before a particular disabled person presents themself. But also the Services Code para 7.26 says that once a service provider has become aware of the requirements of a particular disabled person who uses or seeks to use its services, it might then be reasonable for the service provider to take a particular step to meet these requirements.
How far the service provider must make an adjustment depends on what is reasonable in all the circumstances. See the discussion below under Technical note: Reasonableness/ proportionality of requirement to wear face covering under Equality Act.
Transport for London (TfL)
From 24th February 2022, TfL says wearing a face covering is no longer mandatory on its tube, bus and other services, but it continues to strongly recommend wearing one if you are able to: news release: TfL to no longer require face coverings to be worn on its services from 24 February but will strongly recommend them (tfl.gov.uk). In Safer travel guidance (tfl.gov.uk) TfL says (at 5 Apr 2022) “TfL strongly recommends customers to wear face coverings on its services.”
This seems to be mean that TfL is not enforcing the wearing of face coverings. Therefore issues of reasonable adjustments and whether an exemption applies should not arise.
Before 24th February 2022, TfL’s Conditions of Carriage required passengers to wear a face covering unless exempt, even after face covering regulations in England had expired in January: see below Archive: Transport for London (TfL) before 24th February 2022. The discussion there should still be relevant as regards any other businesses etc taking a similar approach.
An operator such as TfL (or National Rail below) may be liable if for example staff harass (below) a person who is not wearing a face mask because of a disability.
The position on National Rail (at 5 Apr 2022) seems to be the same as TfL (above), though with a less strong recommendation to wear a face covering: see Face coverings (nationalrail.co.uk). Again, with National Rail not enforcing the wearing of face coverings, issues of reasonable adjustments and whether an exemption applies should not arise.
Even without any regulations, and even after the general relaxation of English guidance from 1st April 2022, the NHS in England may still be requiring that everyone accessing or visiting healthcare settings – including hospitals and GP surgeries – must wear a face covering: NHS Patients, staff and visitors must continue to wear face coverings in healthcare settings (england.nhs.uk), July 2021, and particularly technical guidance for UK healthcare settings at COVID-19: infection prevention and control (IPC) (gov.uk).
Minimising risk of infection is likely to be particularly important in healthcare settings, bearing in mind risks to other vulnerable patients, and the importance of trying to keep staff at work (rather than self-isolating) to maintain the service. However the Equality Act still applies, including the obligation to make reasonable adjustments if you cannot communicate as needed while wearing a face covering: below Technical note: Reasonableness/ proportionality of requirement to wear face covering under Equality Act. As discussed there, under the reasonable adjustment duty a disabled person’s access to the service should be as close as possible to that enjoyed by others. Also the reasonable adjustment duty is anticipatory; since some patients and visitors cannot wear a face covering, healthcare settings should anticipate and be prepared for this.
I suggest contacting the hospital or GP in advance if it is too difficult to communicate wearing a face covering. (If you don’t feel your speech is up to phoning them, you might try the Relay UK service Telephone>Relay UK – typing instead of speaking.)
Example: If you are an outpatient, the hospital might take additional precautions for the consultation if it needs to be face-to-face, such as the consultant wearing additional protective equipment if considered necessary. (Eg dental appointments happen without the patient wearing a face covering.)
As regards visitors, COVID-19: Guidance for maintaining services within health and care settings – Infection prevention and control recommendations (archive of gov.uk), as at 9 Nov 2021 (since revised) gave as an example of a measure for healthcare settings to take:
“where visitors are unable to wear face coverings due to physical or mental health conditions or a disability, clinicians/person in charge should consider what other [infection prevention and control] measures are in place, such as physical distancing and environmental cleaning, to ensure sufficient access depending on the patient’s condition and the care pathway.”
An online visit might be a reasonable adjustment: see for example Visiting>Arrange an online visit (lnwh.nhs.uk). However if the person who stammers would normally be allowed to visit face-to-face, then given that under the reasonable adjustment duty a disabled person’s access to the service should be as close as possible to that enjoyed by others, an online visit is not likely to be sufficient unless the hospital shows that a face-to-face visit (in a way that allows communication) is unreasonable.
There is more on adjustments by health services at Examples of adjustments and discrimination: service providers>Health services.
Higher education providers such as universities have an anticipatory duty to make reasonable adjustments under the Equality Act. It makes sense to talk to the university to try and resolve any difficulties their face covering policy causes you: Resolving issues at university or FE college.
For government guidance on face coverings here, before 1st April 2022, see Higher education providers: coronavirus (COVID-19) (gov.uk).
Service providers: Other Equality Act claims
The discussion above has focused on reasonable adjustments to allow a customer etc not to wear a face covering. Depending on the facts, there may also be other Equality Act breaches by a service provider:
Example: If a customer who stammers is wearing a face covering, extra patience or other steps may be required to enable them to communicate. S.15 EqA and perhaps direct discrimination or harassment may be relevant, as well as the reasonable adjustment duty.
Example: A business refuses to serve a customer who because of their stammering is not wearing a face covering, or treats them unfavourably in some other way. This might be a breach of s.15 EqA unless the business shows its action was proportionate (below). If it is a policy or practice of the business, there may also be a claim for breach of the reasonable adjustment duty or indirect discrimination.
Example: Practices of the business or organisation do not include reasonable precautions to minimise risk of disabled customers getting infected if they are justifiably not wearing a face covering. This may be a breach of the duty to make reasonable adjustments, or indirect discrimination. However the business might argue that any additional risk to someone not wearing a face covering is minimal, depending on what the scientific evidence is.
(Businesses and organisations will be conscious of their obligations under the Health and Safety Act ss.2 and 3 to take steps to protect health and safety “so far as reasonably practicable”, under health and safety regulations to carry out risk assessments, and under civil law duties of care which might lead to compensation claims. However those obligations may not add much to the normal defences the business has under the Equality Act.)
Face covering regulations in Scotland, Wales, Northern Ireland
I don’t deal with these in any detail, and am not familiar with the particular legal systems outside England. However this was an overview of the position as I understood it at 18th April 2022, with links to more detail:
|No longer legally required, but recommended in indoor public places and on public transport
|Coronavirus in Scotland – gov.scot), and Use of face coverings (gov.scot) 13 Aptlr
|Previously SSI 2021/227, reg 5, 6, 7, revoked by SSI 2022/133
|Health and social care settings. Strongly recommended elsewhere.
|Face coverings: guidance for the public (gov.wales)
|WSI 2020/1609, Part 5.
|No longer legally required, but strongly recommended in indoor settings accessible to the public.
|Coronavirus (COVID-19): Face coverings guidance (gov.uk)
|Previously NISR 2020/151, revoked by NISR 2022/47
On a quick look the Welsh and former N. Ireland reasonable excuse exemption seems to have much in common with the old English regulations, so what I said about the English regulations may be helpful: Archive: Face covering regulations and stammering. The structure of the former Scottish regulations SSI 2021/227 seems different in that they give an exhaustive list of excuses. Rather than just allowing a “reasonable” excuse, the excuse had to be one specifically listed in the regulations. There may still be scope for an argument for people who stammer by analogy with communication being allowed for people relying on lip reading or facial expression (no mention of “clear sound”), similar to Archive: Face covering regulations and stammering>Technical note: Argument for wider interpretation of exemption in regulations. However the argument may need to be that the inclusion of a specific exception only for some listeners with communication difficulties implies that speakers with communication difficulties are intended to be exempt on the basis of being “unable” to wear a face covering due to a disability etc. Perhaps.
Technical note: Reasonableness/ proportionality of requirement to wear face covering under Equality Act
The following focuses on customers or the public wearing face coverings. As to staff, see mainly Workers above, though points below may also be relevant.
- A customer etc might claim under s.15 EqA that they were treated unfavourably, for example refused entry or asked to leave, because they were not wearing a face covering due to their disability. The question may arise whether the business or organisation can show its action was a proportionate response so as to rely on the justification defence? For s.15, it does not matter whether the business etc is applying a policy or practice.
- In places where a policy or practice of the business or organisation requires a face covering to be worn (eg hospitals in England), how far is the latter required to make a reasonable adjustment to their policy or practice?
Whilst reasonableness and proportionality are different tests, in practice they will often largely amount to much the same thing. On reasonable adjustments, case law specifically says that access to a service should be as close as possible to that enjoyed by others. A difference which may be relevant is that:
- for proportionality under s.15 one focuses on whether the unfavourable treatment of the particular person was proportionate, whereas
- for reasonable adjustments by service providers (not employers) the focus may be on what steps it is reasonable for the provider to take to avoid the disadvantage to people with that kind of disability, at stage 1 of the Two-stage test (but see also see Ad hoc adjustment duty on service providers?).
In deciding what is reasonable or proportionate, the court is likely to balance factors such as the level of risk to staff and other customers from a customer not wearing a face covering, any other measures that might reduce such risk as there is, and the interests of disabled people to access the service in as normal a way as reasonably possible.
As to how important it is from a health and safety point of view for a customer to wear a face covering, with the spread of vaccination, decreased risk of hospitalisation, and therefore relaxation of public health guidance (certainly in England), it may now be more difficult for service providers to justify a general policy of requiring face coverings unless one is near vulnerable individuals (eg in hospitals). In a court case, it should be for the service provider to prove whatever risk it asserts if the disabled person does not wear a face covering, and generally to prove that the requested adjustment was not reasonable or that its actions were justified. Some points on the level of risk of not wearing a face covering:
- Was the service provider’s rule requiring face coverings based on previous Working safely during Coronavirus (archive of gov.uk at 1 Mar 2022) guidance which was actually withdrawn from 1st April 2022 (above Government guidance and regulations (England))? Indeed did that “Working safely” guidance for the relevant sector and situation recommend face coverings even before the end of March?
- Admittedly that guidance is not the final word – a business needs to do its own risk assessment. But is its assessment based on outdated risks?
- Also the abolition of the regulations – and from 1st April 2022 the main guidance on face coverings – in England (above Government guidance and regulations (England)) might be taken as an indication in England that wearing a face covering is seen as less important than it was.
- Clearly the lower the risk from not wearing a face covering, the easier it is for the interests of the disabled person in accessing the service unimpeded to outweigh safety concerns.
The previous guidance and regulations on face coverings in England may well also influence a court as to what exceptions for disabled people are reasonable:
- As discussed above at What the government guidance said about exceptions, the English guidance on face coverings up to the end of March 2022 implied that being unable to communicate was a valid reason not to wear a face covering.
- Also relevant, I think, would be the former legal regulations on face coverings in England where there was a similar implication, again by analogy with the fact that the regulations and guidance allowed an exception for communicating with someone who relied on seeing the speaker’s mouth or face: Archive: Face covering regulations and stammering>Technical note: Argument for wider interpretation of exemption in regulations.
- I suggest that in most cases it will be difficult for a business to legitimately insist on a customer or member of the public wearing a face covering if the person would have had a reasonable excuse under the former face covering regulations. Healthcare settings such as hospitals, and perhaps care homes, may be an exception.
The service provider’s policy on face coverings will probably already have some exceptions for disability, because of the Equality Act. But stammering very often gets forgotten. If the service provider considers it reasonable/proportionate to allow exceptions for other disabled people who want to communicate, why not the same for people who stammer? Why does health and safety permit the exception which the service provider allows for other disabilities, but not for stammering? For example, why permit an exemption for lip-readers but not for people who stammer?
For proportionality it is long established that the court must consider whether the aim of the business etc could be achieved by alternative, less discriminatory means. This should also be important in considering what adjustments are reasonable. So if the service provider proves that safety concerns of not wearing a face covering are significant, how far could it minimise these concerns by taking extra precautions, such as:
- extra protective equipment for staff,
- reviewing the physical set-up where any conversation will take place, including increased ventilation and/or distancing
- not using a particular staff member who is vulnerable.
People who stammer and other disabled people should not be excluded from services. Maximum safety is not an absolute requirement. Maximum safety would normally mean no face-to-face services for anyone, and probably everyone stays at home. Safety and other concerns, so far as well substanti must be balanced against the detriment to the disabled person of not being allowed to access the service, at least face-to-face. Cases on reasonable adjustments say that access to a service should be as close as possible to that enjoyed by others. The size of any detriment will be relevant: for example could essentially the same be achieved by an online video conference, if the individual would be able to communicate OK in that.
See also (reasonableaccess.org.uk) from August 2020. This does not deal specifically with face coverings, but stresses the importance of businesses being flexible in fulfilling their Equality Act obligations during the Coronavirus pandemic. It gives an example of “PPE being provided to staff who need to get within 2 metres of a customer to assist them”. It also discusses how to talk to organisations to get changes made.
If in the particular circumstances it really is not reasonable to enable a person who stammers to communicate face-to-face, it may be reasonable to communicate by video conference if the individual can do that (or do part online and meet in person for part which does not involve so much speech), or perhaps communicate in writing. Providing a service in an alternative way can be required as a reasonable adjustment provided it would not fundamentally alter the nature of the service or business.
In April 2021 the Equality and Human Rights Commissions warned businesses and others against blanket policies barring people from accessing services without a face mask: Equality regulator warns against blanket ‘no mask, no entry’ policies (equalityhumanrights.com).
The Equality Act’s reasonable adjustment duty also applies in Scotland and Wales, subject to any particular legal regulations (above) on face coverings there. Northern Ireland has a broadly similar reasonable adjustment duty in its Disability Discrimination Act 1995.
(Obligations on businesses and organisations under the Health and Safety Act ss.2 and 3 to take steps to protect health and safety “so far as reasonably practicable” may not add much to the general defences the business has under the Equality Act.)
Archive: Transport for London (TfL) before 24th Feburary 2022
- For the present position (face coverings not mandatory), see above Transport for London (TfL).
- This section (below) deals with the position up to 23rd February 2022 when TfL required face coverings but regulations did not.
- For the position before 27th January 2022 when regulations required face coverings, see separate page Archive: Face covering regulations and stammering.
Even after face covering regulations had expired in England, up to 23rd February 2022 Transport for London (Tfl) required passengers to wear face coverings on the tube, buses and other services they run. Details, including exemptions, were set out in Face coverings (archive of tfl.gov.uk at 22 Feb 2022).
This said: “If you do not [wear a face covering], and you are not exempt, you could be refused entry, denied travel or told to leave our stations and services.” Wearing a face covering was required by the Tfl Conditions of Carriage (pdf, archive of tfl.gov.uk at 19 Jan 2022) unless an exemption applied, so it was a contractual obligation.
Face coverings (archive of tfl.gov.uk at 22 Feb 2022) included ways to show you were exempt, if you wanted to be able display something. Also see above Card, badge or lanyard to show disability.
Though I talk below about possible exemptions, generally it was safer to wear a face covering if and when you could.
Transport for London (TfL) exemptions
Tfl said in Face coverings (archive of tfl.gov.uk at 22 Feb 2022): “You … do not need to wear a face covering if you have a good reason not to, such as if” certain bullet points apply. So any “good reason” should do. It does not have to be on the list. (This and other points below were also likely to apply to the similar government guidance on face coverings in If you’re not able to wear a face covering (archive of gov.uk at 30 Mar 2022).)
One bullet point on the list was that “You have a physical or mental illness or impairment, or a disability that means you cannot put on, wear or remove a face covering”. Stammering is a physical impairment (and will very often be a disability within the Equality Act). However it was not clear that really struggling to communicate while wearing a face covering meant you “cannot wear” a face covering. Arguably you can wear it, you just can’t communicate while doing so.
Another bullet point was if wearing the face covering would cause you severe distress. This may apply to some people who stammer.
Another bullet point in the TfL list was “You are travelling with, or providing assistance to, someone who relies on lip reading to communicate.” I think this was important because it implied that TfL saw being unable to communicate as a good reason not to wear a face covering. There seemed to be no reason why people who lip read should be allowed to communicate whereas people who stammer cannot. And you didn’t have to be within a bullet point – you just needed to have a “good reason” not to wear a face covering “such as” one of the bullet points.
The TfL policy did not say the communication had to be necessary, it could just be a conversation. Indeed according to TfL you didn’t have to be talking at the time at all, just travelling with someone who lip-reads. However the equivalent bullet point in the government guidance on face coverings (above) was more limited: “people speaking to or providing assistance to someone who relies on lip reading, clear sound or facial expressions to communicate”. I’d suggest if you needed to remove the face covering in order to communicate, only remove it when actually having a conversation, at least if it’s crowded: above Removing a face covering only when need to speak? That assumed you’re happy to rely on this analogy argument. (Note: The government guidance of also allowing an exemption when communicating with people who rely on clear sound or facial expressions would doubtless have been applied by TfL, and strengthened the argument that being unable to communicate was a good reason not to wear a face covering.)
Say on the tube you want to talk with a companion, or on the phone, and really struggle to speak or to be understood when wearing a face covering. I think there is a good argument that under TfL’s policy you have a “good reason” to take off a face covering here, while having the conversation, assuming the face covering significantly contributes to the difficulty.
If TfL said otherwise, it might well be a breach of the reasonable adjustment duty, especially given the inconsistency of its approach to lip-reading.
However I’d always suggest wearing a face covering on TfL if possible. Also the emptier the carriage or bus and the further from other people you are, the stronger the argument. Furthermore, the closer other passengers are, the more likely you are to get adverse reactions from them.
How difficult does communication have to be, when you’re wearing a face covering? Who knows, but I’d argue that if it’s so difficult that you’re significantly restricting how much you say, compared with how it would be without a face covering, then that should be enough. You’re then not being given a right to have a proper conversation, like a lip-reader. Other factors like how crowded it is may also be relevant.
What if you cannot communicate as required to control children, if you wear a face covering? This seems even more likely to be a good reason within TfL’s policy, and to require a reasonable adjustment under the Equality Act if TfL do not agree.
If TfL did not allow an exception for someone who stammers who needed to remove the face covering to communicate, it could be argued that they were in breach of the reasonable adjustment duty under the Equality Act. On what is reasonable, see the discussion above at Technical note: Reasonableness/ proportionality of requirement to wear face covering under Equality Act. As I discuss there, one argument would be why are health and safety concerns consistent with an exemption to allow lip-readers to communicate but not for people who stammer?
As before 27th January 2022 under the regulations, there was a lack of guidance on people with speech conditions. It rather looked like they had not been considered.
The TfL bullet points reflected the rules in the pre-27th January regulations, on which similar points arose: see Archive: Face covering regulations and stammering, including on that page Technical note: Argument for wider interpretation of exemption in regulations.
Depending on the facts there may also be other claims under the Equality Act, eg for harassment: see below Other Equality Act claims?