Face masks and face coverings can make it more difficult for people who stammer to talk or be understood. Coronavirus (Covid-19) regulations in England no longer legally require a face covering to be worn. However some businesses and organisations – for example hospitals and Transport for London (TfL) – require customers or patients etc to wear a face covering. Also some employers require staff to wear one. What rights do you have if this causes you difficulties speaking?
- Whatever possible exemptions there are, it is a good idea to wear a face covering so far as you can, if officially required or recommended, to reduce the spread of Covid-19.
- You may find that wearing a face covering makes it harder to communicate.
- 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?
- Regulations in England no longer legally require people to wear a face covering. However in England guidance from the government says: “We expect and recommend that members of the public continue to wear face coverings in crowded and enclosed spaces where you come into contact with people you don’t normally meet.”
- But the guidance recognises that some people will not be able to wear a face covering, and seems to imply that being unable to communicate orally is a valid reason not to wear one in a conversation. Below Government guidance and regulations.
- Even without the regulations, 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 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 Transport for London’s policy below. Although it does not give a clear exemption for stammering, like the general guidance I think TfL’s policy implies that it sees being unable to communicate orally as a good reason not to wear a face covering in a conversation.
- I also discuss some other examples below: National Rail, health services such as hospitals and GPs, and universities.
- 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.
- You can get a card or lanyard (below) to show you have a hidden disability and are claiming exemption from wearing a face covering.
- There are also links below to Face covering regulations in Scotland, Wales, Northern Ireland.
Face covering can make communication harder
Face coverings can make it more difficult for people who stammer to talk. They 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 a person 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 speech is less loud. 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 the stammer. The article also includes comments by the 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: Which guide Clear face masks: what to know before you buy (which.co.uk) and Masks with a clear panel for lipreading (ideasforears.org.uk). The speaker 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 people who stammer, eg if the voice is too muffled or if airflow is restricted. Also you might find the clear panel gets misted up. Some masks have been used in UK healthcare settings, and so may potentially be more effective than others:
- A recent medical grade transparent face mask produced by Alder Hey together with Bluetree Medical: Our new transparent facemask is here (alderhey.nhs.uk), July 2021
- 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).
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” from the US on etsy.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. In England though far fewer places now require face coverings anyway. Even if they do, exemption will not normally be dependent on whether you have a card etc.
- Government templates for exemption card or badge (gov.uk);
- “Hidden disabilities” lanyard or card https://hiddendisabilitiesstore.com;
- Transport for London (below) has a card to print off or show on a phone https://tfl.gov.uk/campaign/face-coverings;
- many other transport providers have options on their website, though a provider should not insist on a passenger having its own particular card;
- 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. Also that may be more socially acceptable. However putting the face covering back on whenever the other person is speaking is not going to work.
Government guidance says “avoid taking [the face covering] off and putting it back on a lot in quick succession (for example, when leaving and entering shops on a high street)”, and includes 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>5. How to wear a face covering (gov.uk).
See also below on Transport for London (TfL).
Government guidance and regulations (England)
Previously face covering regulations in England required passengers on public transport, customers in shops etc and some staff to wear face coverings, subject to exemptions. The regulations were SI 2020/592 for transport, and SI 2020/791 for shops and other premises. However SI 2021/848 repealed these regulations with effect from 19th July 2021.
So the English legal regulations are no longer there. The main government guidance in England is Face coverings: when to wear one, exemptions, and how to make your own (gov.uk). It says that repealing the regulations does not mean the risks from Covid-19 have disappeared, but the government is moving to an approach that enables personal risk-based judgments. It explains:
We expect and recommend that members of the public continue to wear face coverings in crowded and enclosed spaces where you come into contact with people you don’t normally meet. For example, on public transport.
You should use your judgement in deciding where you should wear one. Businesses, including transport operators, can also ask their employees and customers to wear face coverings. You should check with operators of services, venues, and settings that you use.
What the government guidance says about exceptions
That government guidance for England has a section If you’re not able to wear a face covering (gov.uk)). It says that some people are less able to wear face coverings and to please be respectful. It says this “includes (but is not limited to)” various examples, one of which is “instances where people are speaking to or providing assistance to someone who relies on lip reading, clear sound or facial expressions to communicate”.
This implies that the guidance sees inability to communicate orally as a valid reason for not wearing a face covering in a conversation. See discussion on this and some of the other listed examples below in the context of Transport for London (TfL). For some people another listed example may apply, such as if wearing a face covering causes them severe distress.
Workers required to wear a face covering (England)
Face covering regulations in England previously required many retail, leisure and hospitality staff to wear face coverings, subject to exemptions. However these regulations were repealed from 19th April 2021.
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 he needs to in order to speak (or not to wear one at all). However 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.
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. That assumes the stammer is a disability within the Equality Act, which seems likely if the face covering gives 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 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, one question might be why not for stammering, when you need to speak?
Health and safety is likely to 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. Most sectors are covered by government guidance on Working safely during coronavirus (gov.uk) for England, amended from 19th July 2021. I’d think it’s worth looking at the guidance for your sector, to see what it says about face coverings in your type of work situation. Also there is the general guidance on face coverings (above) which, I say there, implies that being unable to communicate is a valid reason not to wear a face covering.
But it will depend on the particular circumstances. You could think about your particular work arrangements. For example when you’re outside at some distance from others, or in a room on your own (or a long way from anyone else) on a telephone call, 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, 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 face mask if continuing to have close contact with patients. If it helps in your case, it could be considered whether a medical grade face mask with a transparent panel is possible. This is particularly the case as patients who rely on lip-reading or facial expression may be unable to understand any member of staff who is not wearing one, so it may be part of the anticipatory reasonable adjustment duty to patients to have them available.
(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.)
Service providers requiring customers etc to wear face covering (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 were repealed from 19th April 2021.
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 he needs to in order to speak (or not to wear one at all).
However some businesses and organisations have decided to require passengers, customers or patients to wear a face covering. They may decide to refuse entry to someone not wearing a face covering, or require them to leave. Examples include:
- Transport for London (Tfl) on tube, buses and other services they run, see below Transport for London (TfL)
- Hospitals, GPs and other NHS healthcare settings 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.
National Rail at Face coverings (nationalrail.co.uk) says that in England it is following government guidance and will expect people to continue to wear face coverings in crowded spaces, at a minimum. It says people will need to use their own judgement. It will be “reminding people through posters and announcements” that they are expected to wear a mask in crowded spaces, but it cannot fine people and does not want to put colleagues at risk of abuse or assault by asking them to bar people who do not. It also has a Face covering exemptions (nationalrail.co.uk) page, including a non-exhaustive list of exemptions, and optional ways to display the fact that you are exempt.
Essentially this seems to be saying that National Rail will not be enforcing the wearing of face coverings, so presumably issues of reasonable adjustments should not arise. The question whether an exemption applies should not be relevant in practice if it is correct that the policy is not being enforced.
If the question did arise whether an exemption applies, I think basically the same arguments apply as for Transport for London below, including that National Rail’s policy implies that inability to communicate is a “good reason” for not wearing a face mask during a conversation. One specific example it gives of a good reason is “Where a person is providing a lip-reading (or BSL) service to the person they are travelling with”. (“Lip-reading service” is odd wording, but I think sensibly it must just mean letting someone lip-read what you say, or letting them see facial expression and mouth shape as part of understanding British Sign Language).
An operator may be liable if for example staff harass (below) a person who is not wearing a face mask because of a disability.
As ever, I would encourage people if possible to wear a face covering where recommended – so particularly in crowded spaces.
Transport for London (TfL)
Transport for London (Tfl) requires passengers to wear face coverings on the tube, buses and other services they run. Details, including exemptions, are set out in Face coverings (tfl.gov.uk).
This says: “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 is required by the Tfl Conditions of Carriage (tfl.gov.uk) unless an exemption applies, so it is a contractual obligation.
Though I talk below about possible exemptions, generally it is safer to wear a face covering if and when you can.
Transport for London (TfL) exemptions
Tfl says in Face coverings (tfl.gov.uk): “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 are also likely to apply to the similar government guidance on face coverings (above).)
One bullet point on the list is 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 is not clear that really struggling to communicate while wearing a face covering means you “cannot wear” a face covering. Arguably you can wear it, you just can’t communicate while doing so.
Another bullet point is if wearing the face covering would cause you severe distress. This may apply to some people who stammer.
A further bullet point in the TfL list is “You are travelling with, or providing assistance to, someone who relies on lip reading to communicate.” I think this is important because it implies that TfL sees being unable to communicate as a good reason not to wear a face covering. There seems to be no reason why people who lip read should be allowed to communicate whereas people who stammer cannot. And you don’t have to be within a bullet point – you just need to have a “good reason” not to wear a face covering “such as” one of the bullet points.
The TfL policy does not say the communication has to be necessary, it could just be a conversation. Indeed according to TfL you don’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 is more limited: “instances where people are speaking to or providing assistance to someone who relies on lip reading, clear sound or facial expressions to communicate”. I’d suggest if you need 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 assumes you’re happy to rely on this analogy argument. (Note: The government guidance to also allow an exemption when communicating with people who rely on clear sound or facial expressions would doubtless be applied by TfL, and strengthens the argument that being unable to communicate is a good reason not to wear a face covering.)
Say 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 (below).
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. Further, 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 needs to remove the face covering to communicate, it could be argued that they are in breach of the reasonable adjustment duty under the Equality Act. On what is reasonable, see the discussion below 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 July 2021 under the regulations, there is a lack of guidance on people with speech conditions. It rather looks like they have not been considered.
The TfL bullet points reflect the rules in the pre-19th July 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?
The NHS has said that even after 19th July 2021, everyone accessing or visiting healthcare settings – including hospitals and GP surgeries – must continue to wear a face covering and follow social distancing rules: NHS Patients, staff and visitors must continue to wear face coverings in healthcare settings (england.nhs.uk), July 2021. Technical guidance for UK healthcare settings at COVID-19: infection prevention and control (IPC) (gov.uk) acknowledges that not everyone may be able to wear a face covering.
Minimising risk of infection is likely to be particularly important in healthcare settings. 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 access to a 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, presumably 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 with a face covering on. (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.)
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. (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 Version 1.2 (pdf, gov.uk), June 2021 on page 14 gives 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.”
There is more on adjustments by health services at Coronavirus (Covid-19)>Services, including health.
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, see Higher education COVID-19 operational guidance>Face coverings (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 breaches of the Equality Act by a service provider:
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.
A business refuses to serve a customer not wearing a face covering because of their stammering, 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.
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.
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 22nd July 2021, with links to more detail:
|Nation||Where compulsory||Government guidance||Legal regulation|
|Scotland||Public transport, shops and more||Where face coverings should be worn (gov.scot), and Face covering exemptions (gov.scot)||SSI 2020/334 Schedule 7 (applies in all Tiers, see regulation 3).|
|Wales||Public transport, shops and more||Requirement to wear a face covering on public transport in Wales (gov.wales), and Face coverings: guidance for public (gov.wales) on indoor public places||WSI 2020/1149, reg 18 on public transport, and reg 19 on indoor public areas.|
|Northern Ireland||Public transport, shops and more||Guidance in Northern Ireland (gov.uk)||NISR 2020/151|
So far as relevant to stammering, the specific reasonable excuses look similar to the former English regulations (on a brief look), except that Wales does not have the express “severe distress” excuse, and there are various differences in the excuse on people such as lip-readers who have difficulty understanding someone wearing a mask: see Archive: Face covering regulations and stammering>Technical note: Argument for wider interpretation of exemption in regulations on this.
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 above Workers required to wear a face covering (England) 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, Transport for London), 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 there is specific authority 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 seems to be on what steps it is reasonable for the provider to take to avoid the disadvantage to people with that kind of disability (Reasonable adjustments by service providers>Applying the group test).
In deciding what is reasonable or proportionate, the court is likely to balance factors such as keeping staff and other customers as safe as reasonably possible with 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, there may be official guidance, such as on Working safely during coronavirus (gov.uk) for England. This may be a useful place to look as to how far the government sees face coverings as important for customers in a particular context.
The government’s current guidance on face coverings (above) and the former regulations may well also influence a court:
- As discussed at that link, the guidance on face coverings implies that being unable to communicate is 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. (That link also discusses a similar point in regulations for Scotland, Wales and Northern Ireland).
- 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 has a legitimate excuse under the government guidance, even more so if it would have been a reasonable excuse under the former regulations.
- Also the abolition of the regulations in England might be taken as an indication – in England – that wearing a face covering is seen as less important than it was.
The service provider’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, one question might be why not for stammering, when you need to speak? Why does health and safety permit the exception which the service provider allows for other disabilities, but not for stammering? For example, why allow an exemption for lip-readers to communicate but not for people who stammer? – see the TfL example above.
An organisation may argue that another reason to require customers to wear face coverings if feasible is to build confidence of customers and staff. Perhaps other customers may be deterred if someone is not wearing a face covering. Perhaps also some staff may be fearful, particularly if they or someone they live with is clinically vulnerable. However in the balancing exercise, especially with the abolition of regulations in England, it may be difficult for the business to persuade a court that this overrides the interests of a disabled person who cannot communicate while wearing a face covering.
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. Presumably this should also be important in considering what adjustments are reasonable. So could the business or organisation minimise safety concerns of not wearing a face covering 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,
- perhaps providing a plastic visor for the person who stammers to wear?
People who stammer and other disabled people should not be excluded from services. Maximum safety, for example, 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 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 should 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). 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 reasonable adjustment duty also applies in Scotland and Wales, subject to the 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.)