- In England face coverings were legally required in numerous places including public transport, shops etc (below) unless one had a reasonable excuse.
- The regulations were SI 2021/1340. They were allowed to expire on 26th January 2022.
- I suggest below what may have been a “reasonable excuse” for not wearing a face covering, but unfortunately how this exception applied to speech conditions was unclear and was not covered in government guidance (archive at 2 Jan 2022). In any event Equality Act duties (see page Face masks/coverings and stammering) could still apply.
- You could get a card or lanyard (below) to show you had a hidden disability and were claiming exemption from the regulations.
- What about workers (below)? Generally staff in England were exempt from the face covering regulations, except for retail, leisure and hospitality staff in certain circumstances. For them the “reasonable excuse” exception could potentially still apply. Even so, as now an employer might require workers to wear a face covering (below), in which case the employer may be obliged to make reasonable adjustments.
Guidance and regulations
Government guidance on face coverings in England was Face coverings: when to wear one and how to make your own (archive as at 2 Jan 2022).
The legal regulations requiring face coverings in England were SI 2021/1340. The government allowed those regulations to lapse at the end of 26th January 2022, so they do not apply from the 27th.
(For other parts of the UK see Face masks/coverings and stammering>Face covering regulations in Scotland, Wales, Northern Ireland.)
Exemptions or reasonable adjustments
There was a difference between:
- customers and other members of the public
- in situations where the government had passed a legal regulation requiring face coverings, for example public transport, shops etc (below) in England. Here the key thing was what is a “reasonable excuse” (below) so as to be exempt from the regulations. But also the business or organisation had Equality Act duties (below);
- in situations such as hospitals where – in England – there was no legal regulation but the business or organisation decided that its customers etc should wear a face covering. Here the business etc has a duty to make reasonable adjustments under the Equality Act: Service providers not covered by legal regulations: duty to make reasonable adjustments (below);
- at work, either the regulations or (more usually) an employer requiring workers to wear a face covering (below). Employers have a duty to make reasonable adjustments under the Equality Act, subject to eg health and safety issues. In places where the regulations did apply, the regulations were subject to the “reasonable excuse” exemption.
Card, badge or lanyard to show disability
If you wanted something to show you were claiming exemption from wearing a face covering (discussed below), there were various options, though exemption was not dependent on whether you had a card etc. See Face masks/coverings and stammering>Card, badge or lanyard to show disability.
Public transport, shops etc: legal regulations (England)
In England the face covering regulations were SI 2021/1340. Under these, the legal requirement for the public – and often staff – to wear a face covering applied in a long list of places, for example the following so far as indoors (more detail at Face coverings: when to wear one and how to make your own (archive as at 2 Jan 2022)):
- public transport (including taxis), except a part of the vehicle which is not indoors
- transport hubs (such as stations and airports),
- shops, widely defined as (roughly) premises open to the public for retail sale or hire of goods or services,
- shopping centres,
- hair salons, barbers, nail salons (as falling within the wide definition of “shop”),
- banks and post offices,
- premises open to the public providing professional services, such as high-street solicitors (lawgazette.co.uk) and high-street accountants (agaimn considered to be within the wide definition of “shop”),
- visitor attractions and entertainment venues, such as (so far as indoor) museums, galleries, cinemas, theatres, cultural and heritage sites, zoos, skating rinks, bowling alleys, play areas
- places of worship.
Specific exceptions (in Schedule 1 Part 2), where the regulations did not require a face covering, included:
- hospitality venues such as restaurants, cafes, bars and pubs
- some exercise venues such as gyms, leisure centres and swimming pools
- premises (other than registered pharmacies) providing wholly or mainly medical services
- nightclubs, dance halls, discotheques and the like.
As to how far staff were also covered by the regulations, in places where the regulations applied, see below Some workers required to wear a face covering.
This page focuses on regulations in England, but see Face coverings/masks>Face covering regulations in Scotland, Wales, Northern Ireland.
Reasonable excuse: summary
Generally I would say it was safer for all concerned to wear a face covering if possible.
However the regulations in England did not require you to wear a face covering if you had a “reasonable excuse”. The examples of excuses listed in the regulations may not apply, but what of other reasonable excuses?
It can be argued that the English regulations (as regards lip reading) and the government guidance on them (as regards listeners who rely on clear sound or facial expression) implied that inability to communicate is a reasonable excuse and that the communication need not be necessary but might just be having a conversation. It can therefore be argued that a person who stammers had a reasonable excuse for removing a face mask to communicate, if they would otherwise find it (say) really difficult to talk and/or be understood.
There seems to be no reason why the regulations and guidance should allow people with certain other disabilities to communicate, but not people who stammer. However the legal position was unclear. See the rest of this section for examples, and there is more technical discussion below in Technical note: Argument for wider interpretation of exemption in regulations.
There was a further argument by analogy with the guidance where one’s speech is not clear enough for people to understand if wearing a face covering.
Reasonable excuse: list in regulation 5
In England the legal requirement to wear a face covering in public transport and shops etc did not apply if one has a “reasonable excuse”. Regulation 5 of SI 2021/1340 contains a list of reasonable excuses. The specific excuses which might apply to stammering are outlined below: Technical note: Specific reasonable excuses. You might feel one of them applied to you, for example “severe distress” if you wear a face covering. However largely it is unclear how far the listed excuses applied to stammering.
You did not have to fall within the list though. You could have a different reasonable excuse not listed in the regulations (more of this below again at Technical note: Specific reasonable excuses). What might be a reasonable excuse as regards stammering?
Reasonable excuse: speaking to someone who relies on “clear sound” to communicate
Though not an excuse specifically mentioned in the regulations, the government guidance at Face coverings: when to wear one and how to make your own (archive as at 2 Jan 2022) said you have a reasonable excuse not to wear one if speaking to someone who relies on clear sound or facial expressions to communicate.
Especially if you stammer, a face covering or mask may make it more difficult for people to understand you. If the listener finds it particularly difficult to understand you because of a hearing impairment, say, the guidance seemed to be saying this is a reasonable excuse for not wearing a face covering while speaking to them.
What if the listener does not have a special need for clear sound, but with the face covering on your speech as someone who stammers is not clear enough for them to understand? That was not expressly in the guidance. However one could argue that by analogy this element of the guidance supports the argument that it was reasonable not to wear a face covering if speaking to people generally, if people generally cannot understand you when you wear it. See also below Technical note: Argument for wider interpretation of exemption in regulations>Lack of clarity of speech.
Reasonable excuse: talking to a companion, or on the phone?
Perhaps it ias a reasonable excuse if you wanted to chat with a companion or on the phone and really found it difficult to speak or to be understood when wearing a face covering? This assumes the face covering significantly contributes to the difficulty. You might be on a train, or in an exhibition, or whatever.
Notes on this example:
- It might be argued that wanting to chat was not enough of an excuse to override the public health concerns, so that the communication should only count if it is necessary. However, a counter-argument is that the guidance – and partly the regulations themselves – said you do not have to wear a face covering if you are speaking to someone who relies on lip reading, clear sound (above) or facial expressions to communicate, and said nothing there about the communication having to be necessary. More below Technical note: Argument for wider interpretation of exemption in regulations.
- There seemed to me therefore a decent argument by analogy that if the face covering was stopping you from chatting to someone, that was a reasonable excuse.
- On public transport one might argue this was a reasonable excuse particularly if any other passengers are at least 2m away (so not if the train or bus is crowded). It may also be more reasonable on a journey lasting, say, 30 minutes than on one lasting five minutes.
- It seemed unreasonable not to be able to chat with a companion in an entertainment venue or visitor attraction, such as visiting the cinema or going round a gallery.
However the position under the regulations and guidance was not clear. Generally I would say it was safer to wear a face covering if possible. There was a lack of official guidance on people with speech conditions, and it rather looked like the government has not considered them.
It seemed likely you would have a reasonable excuse if, for example:
You cannot communicate as required to control children, if you wear a face covering.
Reasonable excuse: talking to staff
Here the communication is likely to be shorter and more necessary, so it seemed easier to justify. You may well have a reasonable excuse if for example:
You need to speak to the driver, shop assistant or another staff member and really find it difficult with a face covering on, assuming the face covering significantly contributes to the difficulty.
Sometimes you might have been able to write instead, for example when you ask for a ticket or for an item in a shop. Indeed you might decide to do this. However the regulations and guidance about enabling communication with someone who relies on lip reading, clear sound or facial expressions say nothing about writing being an adequate substitute: below Technical note: Argument for wider interpretation of exemption in regulations. So one could argue that despite the possible alternative of writing, you can still had a reasonable excuse to speak, and to remove the face covering if needed to do that. As I say above though, the position was not clear.
Reasonable excuse: longer conversations with staff, professionals etc
The places where regulations in England required a face covering (Face coverings: when to wear one and how to make your own (archive as at 2 Jan 2022)) included for example:
- premises providing retail professional services, such as high-street solicitors and accountants (unless perhaps appointment-only),
- funeral directors,
Here clients typically have a longer conversation with the professional. If an individual who stammers would really find this difficult while wearing a face covering, and the face covering significantly contributes to the difficulty, this may well be a reasonable excuse for not wearing one.
The business should be aware that not all clients will be able to wear a face covering. However it seemed sensible to talk to them about it in advance if possible. Indeed they may ask clients to let them know in advance. They may want to take extra precautions – such as extra protective equipment for staff, reviewing the physical set-up where the conversation will take place, or not using a particular staff member who is vulnerable or has not received a booster vaccine. The business will be subject to Equality Act duties, including the duty to make reasonable adjustments: see below Equality Act duties in places where face coverings are required by regulations and Technical note: Reasonableness/ proportionality of requirement to wear face covering under Equality Act.
Alternatively it be practicable – and a reasonable adjustment – to have a remote meeting via video conferencing.
Enforcement of the (English) regulations
Where a person was believed to be in breach of the regulations in public transport or shops etc, certain officials have powers to deny boarding or entry, or to direct them to put on a face covering or to leave the transport or premises. A constable had power to remove the person. Breaching the regulations was a criminal offence. There was power for police and certain others to issue a fixed penalty notice.
Equality Act duties in places where face coverings were required by regulations
In shops and other places where the regulations generally required a face covering, there was still a duty on service providers to comply with the Equality Act, including a duty to make reasonable adjustments.
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.)
If a customer is not wearing a face covering because of their stammer, it may be a breach of the Equality Act if the business or organisation refuses to serve the person unless they wear a face covering, or treats them unfavourably in some other way.
This might give rise to a claim by the customer under s.15 EqA unless the business shows its action was proportionate. If it is a policy or practice of the business, there might also be a claim by the customer for breach of the reasonable adjustment duty or indirect discrimination. In either case, see the discussion under Technical note: Reasonableness/ proportionality of requirement to wear face covering under Equality Act.
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).
Other Equality Act claims?
Depending on the facts there may also be a breach of the Equality Act if, for example:
- a member of staff abuses or otherwise harasses a disabled person for not wearing a face covering (s.15 EqA, or perhaps harassment); or
- the practices of the business or organisation do not include reasonable precautions to minimise risk of disabled customers getting infected if they are not wearing a face covering with reasonable excuse (duty to make reasonable adjustments, indirect discrimination) – though it might be argued any additional risk to someone not wearing a face covering is minimal, depending on what the scientific evidence is.
Service providers not covered by legal regulations: duty to make reasonable adjustments
Workers required by regulations to wear a face covering (England)
There were many workplaces where the English face covering regulations just did not apply, for example most offices and factories.
In places where face coverings were compulsory, such as shops and libraries, face coverings were not always compulsory for staff acting in the course of their employment (SI 2021/1340 reg 3(2)(b)-(e) and reg 4(3)(b)-(c)). However under reg 3(3) a member of staff in these places did normally (ie unless they have a reasonable excuse) have to wear a face covering when in a part of the premises “which is open to the public, and comes or likely to come within close contact of any member of the public”. This requirement for (broadly) staff in close contact with the public to wear a face covering was subject to some exceptions:
- It did does not apply in premises providing legal or financial services (exception in reg 3(3)).
- Because reg 3(3) said it only applied in places listed in Schedule 1 Part 1, apparently it did not apply to staff in transport hubs (such as stations) unless they were in a part of the station etc listed in Schedule 1 Part 1. For example, perhaps a ticket office was a “shop” (which is listed in Part 1) so that staff in it were potentially covered. Even there though, face coverings may not be required if, due to a screen, staff were not in “close contact” with the public.
- In the case of public transport, it did not apply to staff of the transport operator (reg 4 covering public transport has no equivalent to reg 3(3)).
- It only applied where the regulations generally apply (above), so for example not normally in offices or factories, or anywhere outdoors.
The face covering regulations did not define “close contact” but a court may well have regard to how this is defined in the Covid self-isolation regulations, namely regulation 5(1) of SI 2020/1045.
Government guidance was at Face coverings: when to wear one and how to make your own (archive as at 2 Jan 2022). There was more detailed guidance for particular types of business in the government’s guidance on ‘Working safely during coronavirus’ (archive of gov.uk at 22 Jan 2022).
Even if staff were within reg 3(3), in parts of the premises where close contact with the public was likely, the regulations did not require them to wear a face covering if they have a “reasonable excuse” because of a disability or otherwise: see above Public transport, shops etc: legal regulations. A reasonable excuse under the regulations could sometimes be overridden by health and safety considerations though, such as in close contact services (eg hairdressers) below.
Close contact services in England such as hairdressers and beauty parlours were normally “shops” within the regulations, so that staff likely to come into close contact with the public were required by the regulations to wear a face covering unless they had a reasonable excuse. However the ‘Working safely’ guidance at para 7.2 (archive of gov.uk at 22 Jan 2022) went further. It said personal care service practitioners conducting treatments which required them to be in close proximity to a person’s face, mouth and nose should where possible follow good practice and wear a Type II face mask. Because of the risks from the job, and taking this guidance into account, an employer might have been justified in insisting that members of staff wear a Type II face mask complying with the guidance or having an equivalent effect, when close to a customer’s face, mouth and nose.
Where regulations do not require worker to wear face covering
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 is an overview of the position as I understand it at 16th December 2021, with links to more detail:
|Nation||Where compulsory||Government guidance||Legal regulation|
|Scotland||Public transport, shops and more||Where you must wear a face covering or mask (gov.scot), and When you don’t need to wear a face covering (exemptions) (gov.scot)||SSI 2021/227, reg 5, 6, 7.|
|Wales||Public transport, shops and more||Face coverings: guidance for the public (gov.wales)||WSI 2020/1609, Part 5.|
|Northern Ireland||Public transport, shops and more||Coronavirus (COVID-19): Face coverings (gov.uk)||NISR 2020/151|
On a quick look, the structure of the Scottish regulations SSI 2021/227 is different (from those in England, Wales and N.Ireland) in that they seem to give an exhaustive list of excuses. Rather than just allowing a “reasonable” excuse, the excuse has to be one specifically listed in the regulations. There may still be scope to argue by analogy with communication being allowed for people relying on lip reading or facial expression (no mention of “clear sound”), similar to Technical note: Argument for wider interpretation of exemption in regulations, below. 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 within the exception of being “unable” to wear a face covering due to a disability etc. Perhaps.
Technical note: Specific reasonable excuses
This technical note outlines how:
- the English regulations for public transport, shops etc listed specific reasonable excuses for not wearing a face covering, including some related to disability;
- however it was not clear how these apply to stammering;
- it seems one could have a reasonable excuse which is not listed;
- so one was rather thrown back to considering when did someone who stammers have a “reasonable excuse” for not wearing a face covering, even if it was not within the listed excuses.
The English legal requirement to wear a face covering in public transport and shops etc did not apply if one had a “reasonable excuse”. SI 2021/1340, regulation 5 listed various reasonable excuses. However it seemed you can have a different reasonable excuse not listed there. Regulation 5 said that a reasonable excuse includes those listed. Government guidance on the regulations included reasonable excuses not specifically listed in the regulations such as speaking to someone who relies on clear sound or facial expressions to communicate (see next heading). Also according to the Independent, guidance to the police on public transport under the previous regulations (which had very similar wording) said:
“The list of reasonable excuses is not exhaustive and officers should use their discretion to determine what may be reasonable in the circumstances with which they are presented.”
www.independent.co.uk, 15th June 2020
The main excuse relevant to stammering listed in regulation 5 was paragraph (a). This applied if:
- you “cannot put on, wear or remove a face covering –
- (i) because of any physical or mental illness or impairment, or disability (within the meaning of section 6 of the Equality Act 2010), or
- (ii) without severe distress”. Note that (ii) does not require there to be an impairment or disability.
A stammer is very often a disability within s.6 Equality Act. In any event it should be a physical impairment. However paragraph (a) said “cannot” wear, or (even if you do not have a disability or impairment) cannot wear without “severe distress”. It might be argued (but it is unclear) that it is not enough that a face covering makes it more difficult to chat to a family member on the bus or train etc.
So it was not clear what the listed excuse at regulation 5(a) meant for stammering. However in England it was possible to have a reasonable excuse not listed in regulation 5. Therefore one may as well move on to what else might be a reasonable excuse, as discussed in the main text above, and below in Technical note: Argument for wider interpretation of exemption in regulations.
Technical note: Argument for wider interpretation of exemption in regulations
As outlined in Public transport, shops etc: legal regulations>Reasonable excuses (above), one could argue that what the regulations and guidance in England said on people who rely on lip reading, clear sound or facial expressions implied that in England people who stammer had a reasonable excuse to remove a face covering when they want to speak if they could not communicate with it on, and that this applied whether or not the communication was necessary and whether or not writing might be a substitute. This technical note discusses that more fully.
In England regulation 5 of SI 2021/1340 gave a non-exhaustive list of reasonable excuses. Regulation 5(b) said that a person P accompanying or providing assistance to someone who “relies on lip reading to communicate with P” had a reasonable excuse for not wearing a face covering. Firstly this implied, as seems obvious anyway, that inability to communicate may be a reasonable excuse. However one might also argue that:
- an inability to chat with a companion if wearing a face covering is sufficient excuse not to wear one. Just making talking rather more difficult may not fall within the excuse. But one might argue, for example, that it was enough if you really find it difficult.
- you were not expected to have to write things down, to avoid the need to talk and remove a face covering, since the regulations apparently did not expect someone accompanying a D/deaf person who lip reads to have to do this, even if the D/deaf person is fluent in English. (I suggest “relies on” was not intended to exclude from the exemption a lip reader who could understand written notes from the speaker.)
It can be argued that Face coverings: when to wear one and how to make your own>When you do not need to wear a face covering (gov.uk) implied the same when it gives as an example of not needing to wear a face covering:
“people speaking to or providing assistance to someone who relies on lip reading, clear sound or facial expressions to communicate”.
This was evidently saying that in England a similar excuse to regulation 5(b), which only mentions lip reading, applied when speaking to someone who relies on facial expressions or clear sound. Again the guidance said nothing about the communication having to be necessary, or writing being an adequate substitute.
One might argue by analogy that this also applied to stammering – that a person who stammers had a reasonable excuse for removing a face mask to communicate, if the person would otherwise find it (say) really difficult to talk and be understood.
There seemed to be no reason why the regulations should allow people with certain other disabilities to communicate, but not people who stammer. However the legal position was unclear.
Lack of clarity of speech
The argument above applies whether or not clarity of speech is part of the problem. However there was an additional possible argument if – as is the case for some people who stammer – other people do not find their speech clear enough to understand if they wear a face covering. The guidance in England (quoted above) specifically said it was a reasonable excuse not to wear a face covering if speaking with someone who relies on “clear sound”. It seemed no great leap from there to say you should have a reasonable excuse if speaking with someone who has no impairment (they do not particularly rely on “clear sound”) but your speech would not be clear enough for them to understand if you were wearing a face covering. If people generally can’t understand you when you wear a face covering, the argument would be that you have a reasonable excuse if speaking to people generally.
Position not clear
However the position was not clear. There was a lack of official guidance on people with speech conditions, and it rather looked like the government had not considered them.