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Face masks/coverings and stammering

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This page does not apply outside Great Britain.
Last updated 2nd October 2020 (part update 15th October 2020).

Face masks and face coverings can make it more difficult for people who stammer to talk or be understood. Due to Coronavirus (Covid-19), wearing a face covering is legally required on public transport and in shops and various other places in England. Also some places such as hospitals require the public to wear a face covering, and some employers require staff to do so. What exemptions are there if this causes you difficulties?

Woman putting on face mask.

Summary

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 where 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:

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.

A comic strip of 5 panels. Franky Banky, a cartoon fox, is wearing a mask in the first, second and third panels. In the fourth panel a voice is asking him "Well, how would you like to pay?". It is revealed in the fifth and final panel that Franky Banky is at the cashier in a grocery store. He stutters to the cashier who is also wearing a mask, "Give me some time. I was blocking".
The Masked Stutterer © Daniele Rossi stutteringiscool.com

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 ones or different materials. 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: 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.

ClearMasks with an anti-fog coating are being made available to NHS and social care workers, subject to health and safety constraints: NHS England note regarding the use of ClearMasks (pdf, rcslt.org) and RCSLT policy statement (pdf, rcslt.org).

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 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 has 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, though exemption is not dependent on whether you have a card etc:

Even so, there is a risk of disabled people being harassed or challenged for not wearing a face covering, including by other passengers: 40% fear challenge without face masks (disabilityrightsuk.org). It may be difficult for someone who stammers to respond. After a crowdfunding campaign at crowdjustice.com it was decided that in view of the government’s response to a pre-action letter, there were insufficient grounds to challenge the regulations.

Removing a face covering only when need to speak?

You might think it is better to remove the face covering only as and when you need to speak, and that may be more socially acceptable. However is it recommended from a health point of view? Government guidance says “avoid taking [the face covering] off and putting it back on a lot in quick succession”, 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).

Exemptions or reasonable adjustments

Turning to the question of who can be exempt from wearing a face covering, there is a difference between:

Public transport, shops etc: legal regulations

Scope

In England the legal requirement for the public (not necessarily staff) to wear a face covering applies in a long list of places, for example:

  • public transport,
  • taxis and private hire vehicles, from 23rd September
  • indoor stations and airports;
  • shops, widely defined as (roughly) indoor premises for retail sale or hire of goods or services,
  • indoor shopping centres,
  • premises providing professional, legal or financial services, for example post offices, banks, high-street solicitors (lawgazette.co.uk) and high-street accountants, short-term loan providers (all considered to be within the wide definition of “shop”)
  • hair salons, barbers, nail salons,
  • vets,
  • indoor entertainment venues and visitor attractions such as museums, galleries, cinemas etc,
  • indoor places of worship,
  • restaurants and pubs from 24th September, except for example when reasonably necessary to remove the face covering to eat or drink.

The full list is in the government guidance at Face coverings: when to wear one and how to make your own (gov.uk).

The current legal regulations (both as amended) are:

Generally the regulations in England exempt staff from the requirement to wear a face covering – except for many retail, leisure and hospitality staff as from 24th September: below Do regulations require a face covering for staff? However even though the regulations do not apply to staff, the employer may have its own policies on staff wearing face coverings: below Workers required to wear a face covering>Where regulations do not require a face covering.

This page focuses on regulations in England, but see below Face covering regulations in Scotland, Wales, Northern Ireland.

Reasonable excuse

TfL blue card saying "I am exempt from wearing a face covering."
Face coverings on public transport: can stammering justify exemption?

The legal requirement to wear a face covering in public transport and shops etc does not apply if one has a “reasonable excuse”. In England regulation 4 of SI 2020/592 for transport and SI 2020/791 for shops etc contain very similar lists of reasonable excuses (with a couple of extras for shops etc). The specific excuses which might apply to stammering are outlined below: Technical note: Specific reasonable excuses. You might feel one of them applies to you, for example “severe distress” if you wear a face covering. However largely it is unclear how far the listed reasonable excuses apply to stammering.

You don’t have to fall within the list though. It seems you can have a different reasonable excuse not listed in the regulations (more of this below again at Technical note: Specific reasonable excuses). What could be a reasonable excuse in relation to stammering?

Reasonable excuse: speaking to someone who relies on “clear sound” to communicate

Though not specifically mentioned in the regulations, the government guidance at Face coverings: when to wear one and how to make your own (gov.uk) says you have a reasonable excuse not to wear a face covering 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 because of a hearing impairment, say, the guidance seems to be saying that this would be a reasonable excuse for not wearing a face covering while speaking to them.

One could also argue this bit of the guidance helps the argument (below) that it is reasonable not to wear a face covering if speaking to people generally who do not have an impairment but who cannot understand you if you wear it.

Reasonable excuse: talking to a companion, or on the phone?

Perhaps it is a reasonable excuse if you want to chat with a companion or on the phone and really find it difficult to speak or to be understood when wearing a face covering? This assumes the face covering significantly contributes to the difficulty.

Notes on this example:

  • It might be argued that wanting to chat is not enough of an excuse to override the public health concerns, so that the communication should only count if it is necessary. However, the guidance (and partly the regulations) say 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. It says nothing there about the communication having to be necessary. More below Technical note: Argument for wider interpretation of exemption in regulations?
  • There seems to me therefore a decent argument by analogy that if the face covering is stopping you from chatting to someone, that is a reasonable excuse.
  • On public transport this might argued to be 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 an hour than one lasting five minutes.
  • It seems 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.
  • Note: If you are with a companion who is not in your household or support bubble and who is only 1m (less than 2m) away, then the guidance Meeting with others safely (social distancing) (gov.uk), albeit not necessarily the law, is probably that you should be wearing a face covering anyway.

However the position under the regulations and guidance is not clear. Generally I would say it is safer to wear a face covering if possible. There is a lack of official guidance on people with speech conditions, and it rather looks like the government has not considered them.

It seems 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 seems 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.

You might be 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 using writing may be difficult with social distancing in place, or while avoiding you and the staff member both touching the paper. Also the regulations and guidance about enabling communication with someone who relies on lip reading, clear sounds 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 have a reasonable excuse to speak, and to remove the face covering if needed to do that. As I say above though, the position is not clear.

Reasonable excuse: longer conversations with staff, professionals etc

From 8th August the places where regulations in England require a face covering (Face coverings: when to wear one and how to make your own (gov.uk)) include for example:

  • premises providing professional, legal or financial services, such as high-street solicitors and accountants,
  • funeral directors,
  • vets.

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 seems 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. 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 may be practicable – and a reasonable adjustment – to have a remote meeting via video conferencing.

Enforcement of the (English) regulations

Where a person is 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 has power to remove them. Breaching the regulations is a criminal offence. There is power for police and certain others to issue a fixed penalty notice.

Equality Act duties in places where face coverings are required by regulations

In shops and other places where the legal regulations generally require a face covering, there is still a duty on service providers to comply with the Equality Act, including making reasonable adjustments.

If the 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 the customer is not wearing a face covering because of their stammering, 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. See the discussion below under Technical note: Reasonableness/ proportionality of requirement to wear face covering under Equality Act.

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

Some businesses and organisations say customers etc should wear a face covering, even though not required by legal regulations. Possible examples which still seem to be outside the English regulations as from 24th September include:

  • health services (below);
  • people coming to work in one’s own home, such as plumbers or home hairdressers;
  • universities and FE colleges.

Where the requirement to wear a face covering is down to the policy of the business or organisation, they have a duty to make reasonable adjustments, and other Equality Act duties such as s.15. See below: Technical note: Reasonableness/ proportionality of requirement to wear face covering under Equality Act.

For universities and colleges the reasonable adjustment duty is under a different part of the Equality Act, but is similar.

Depending on the facts there may also be other claims under the Equality Act, eg for harassment: see above Other Equality Act claims?

Health services

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 with a face covering on (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. Some patients cannot wear a face covering, so presumably healthcare settings should be equipped for this.

Hospitals in England generally require patients or visitors to wear a face covering. However so far as I know, this is a policy rather than a legal requirement: Public Health England (PHE) guidance for hospitals is at New government recommendations for England NHS hospital trusts and private hospital providers (gov.uk). Hospitals have a duty under the Equality Act to make reasonable adjustments. I suggest contacting them 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 the hospital, 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 (as commonly happens now for dental appointments).

If visiting a patient, it might be possible for example to meet them outside, or otherwise with suitable distancing and perhaps screened off from other patients.

Hospitals etc may also have a policy of not allowing anyone to accompany an outpatient:

It may well be a reasonable adjustment under the Equality Act to allow someone to accompany an outpatient who stammers, whether or not they will be wearing a face covering, to help communicate what they want to say. I know of a hospital which agreed this. Again it is sensible to try and agree this in advance.

PHE guidance for GP surgeries in England recommends that patients and members of the public should be advised to wear face coverings “where a COVID-19 secure environment cannot be maintained”: New recommendations for primary and community health care providers in England (gov.uk). Again there is a duty under the Equality Act to make reasonable adjustments. If a surgery says you need to wear a face covering, again I suggest contacting them in advance if possible, if you need a face-to-face appointment and it is too difficult to communicate with a face covering on.

There is more on adjustments by health services at Coronavirus (Covid-19)>Services, including health.

Workers required to wear a face covering

Where do regulations require a face covering for staff?

There are many workplaces where the English face covering regulations just do not apply, for example most offices and factories. Even in places where the face covering regulations do apply to customers, generally the English regulations exempt staff from the requirement to wear a face covering while acting in the course of their employment: SI 2020/791 reg 3(2)(b)(c) and SI 2020/592 reg 3(3)(b)(c).

However an amendment (SI 2020/1026) means that from 24th September this exemption does not apply to retail, leisure and hospitality staff if the member of staff is 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”. These staff are normally required to wear a face covering (though see below on “reasonable excuse”).

The businesses and activities this amendment applies to are listed in Schedule 3 of the regulations. The list includes for example shops, restaurants with table service, bars, banks, museums, and public libraries. However swimming pools, gyms and other businesses in Schedule 2 are excluded.The amendment does not apply to staff on public transport, so generally the regulations still do not require them to wear a face covering. Also there are various other types of business where customers are required (at least in some cases) to wear a face covering but staff are not. For example taxis and premises providing legal services are not within Schedule 3.

Government guidance is at Face coverings: when to wear one and how to make your own>Face coverings at work (gov.uk). There should be more detailed guidance for particular types of business in the government’s guidance on making workplaces Covid-19 secure (gov.uk). In shops, for example, it seems that a shop assistant on a till behind a perspex screen is not normally required to wear a face covering:

“If businesses have taken steps to create a physical barrier or screen between workers and members of the public then staff behind the barrier or screen will not be required to wear a face covering. Enforcement action can be taken if barriers and screens are in place which do not adequately mitigate risks.”
Covid-19 secure guidance for shops and branches (gov.uk) section 6.1. As at 24 Sept 2020.

Despite this amendment limiting the exemption for staff, the other exceptions from the face covering regulations still apply. Therefore the regulations still do not require a staff member such as a shop assistant to wear a face covering, even in public areas where close contact is likely, if the individual has a “reasonable excuse” because of a disability or otherwise: see above Public transport, shops etc: legal regulations. However as discussed in the next section, it may be different for staff providing close contact services, perhaps the “reasonable excuse” exception may not apply to them…

Close contact services

The government’s Covid-19 secure guidance for businesses operating close contact services such as barbers says:

“It is mandatory in law for people providing a close contact service to wear a clear visor/goggles and Type II Face Mask.”.
Covid-19 secure guidance on close contact services (gov.uk) section 6.1, which gives more detail. As at 15 Oct 2020. A previous version of the guidance said this took effect from 24 Sept. Close contact services include for example hairdressers, barbers, beauticians, tattooists, sports and massage therapists, dress fitters, tailors and fashion designers.

It is not clear what the legal basis is for this statement in the guidance: see next paragraph. However if the “reasonable excuse” exception is not intended to apply to the statement, then even if it is not a legal requirement this Covid-19 secure guidance could be seen as a strong signal from the government that employers are justified in insisting on staff wearing this equipment when providing close contact services, because of the risks involved, so it may be difficult for staff to challenge under the Equality Act. Would a face mask with a clear panel be possible/permissible, particularly since customers who rely on lip reading may be unable to understand any member of staff who is not wearing something like this? However see that link as to eg ClearMasks not having been tested as Type II face masks.

Technical note: It is not clear what law (if any) makes it mandatory for staff providing close contact services to wear a clear visor/goggles and Type II face mask from 24th September, as stated in that guidance. The intended legal basis may be another provision added by the 24th September amendment (above), namely SI 2020/791 reg 3(2B). This provision says that if a staff member is “provided with respiratory protective equipment (RPE) by their employer to meet any requirements of [broadly the Health and Safety Act or regulations under it] in respect of any tasks they are performing”, then in wearing that RPE the staff member is treated as complying with the requirement in the regulations to wear a face covering. However I can’t see this provision has the legal effect stated in the guidance. It seems to be saying that if a staff member wears RPE provided by the employer to meet health and safety law but the RPE is not a “face covering”, they are nevertheless treated as complying with the face covering regulations – though I can’t think where that would apply in practice. Possibly the statement in the guidance is based on some other law, but I don’t see any other relevant legal changes from 24 Sept. A visor/goggles with Type II face mask might be argued to be a legal requirement under the general obligation in s.3 Health and Safety Act to take reasonable steps to avoid risks to health, but that did not change on 24 Sept.

Workers: Where regulations do not require a face covering

This assumes the regulations on shops etc do not require you as a staff member to wear a face covering, either because:

  • it is not a retail, leisure and hospitality activity or the conditions of the 24th September amendment (place open to the public, likely close contact) are not met: above Do regulations require a face covering for staff?) or
  • even though it is that type of activity and the conditions are met, you have a reasonable excuse under the regulations.

If an employer requires you to wear a face covering or mask, and this makes it unduly difficult for you to communicate because of the stammer, the question arises whether the employer should make a reasonable adjustment under the Equality Act. Assuming the stammer is a disability within the Equality Act (as seems likely in these circumstances), how far the employer should make an adjustment will mainly depend on what is reasonable.

Health and safety is likely to be a key concern of the employer. Most sectors are covered by the official guidance on making workplaces Covid-19 secure (gov.uk) for England, so you could look there to see whether a face covering is recommended for your type of workplace. See above for particular requirements in close contact services. Also you could think about your particular work arrangements – eg when you’re outside at some distance from others, or on your own in an office (subject to addressing what happens if and when people come in, or when you go out into communal areas), it might be argued a face covering is not important.

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:

  • the employer providing face coverings with a clear 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;
  • not wearing a face covering, but with measures such as greater distancing, dividing screens, ventilation, and/or not facing each other – for example see the Covid-19 secure guidance on retail staff behind a screen or barrier (above);
  • if speaking on phone calls is the issue, these might be done somewhere else away from other staff (compare adjustments for open plan offices), or phone duties might be reallocated;
  • reallocating duties in other ways if possible, for example so as 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 a face mask (perhaps with other PPE) if continuing to have close contact with patients. It could be considered whether a face mask with a clear panel is possible, particularly since patients who rely on lip reading may be unable to understand any member of staff who is not wearing something like this.

(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 is an overview of the position as I understand it as at 23rd September 2020, with links to more detail:

NationWhere compulsoryGovernment guidanceLegal regulation
EnglandPublic transport (incl taxis from 23 Sept), shops and moreGuidance in England (gov.uk)SI 2020/592 for public transport, SI 2020/791 for shops etc.
ScotlandPublic transport (incl taxis), shops and moreGuidance in Scotland (gov.scot)SSI 2020/279, in regs 12 and 13.
WalesPublic transport (incl taxis), shops and moreGuidance in Wales (gov.wales)WSI 2020/725, reg 12A, and reg 12B.
Northern IrelandPublic transport, shops and moreGuidance in Northern Ireland (gov.uk)NISR 2020/151

So far as relevant to stammering, the specific reasonable excuses look similar to England (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 the Technical note on this below. There is a notable difference though in the Scottish government guidance (gov.scot) which says you may have a reasonable excuse if “you have a health condition or you are disabled … and a face covering would be inappropriate because it would cause difficulty, pain or severe distress or anxiety to the wearer… “. So just having “difficulty” may be enough – though perhaps this sits uneasily with distress or anxiety having to be “severe”. However the actual Scottish legal wording in SI 2020/279 regs 12 and 13 (and similar regulations which were in force before 14th Sept) talks of “cannot” wear or “severe distress”, just like in England.

Technical notes

Technical note: Specific reasonable excuses

This technical note outlines how:

  • the regulations for public transport, shops etc list specific reasonable excuses for not wearing a face covering, including some related to disability;
  • however it is not clear how these apply to stammering;
  • it seems one can have a reasonable excuse which is not listed;
  • so one is rather thrown back to considering when does someone who stammers have a “reasonable excuse” for not wearing a face covering, even if it is not within the listed excuses.

The English legal requirement to wear a face covering in public transport and shops etc does not apply if one has a “reasonable excuse”. Regulation 4 of SI 2020/592 for transport and SI 2020/791 for shops etc contain very similar lists of reasonable excuses (with a couple of extras for shops etc). However it seems you can have a different reasonable excuse not listed there. Regulation 4 says that a reasonable excuse includes those listed. Also according to the Independent, guidance to the police on public transport says:

“The list of reasonable excuses [in regulation 4] 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 4 of both SI 2020/592 and SI 2020/791 is paragraph (a). This applies if:

  • you “cannot put on, wear or remove a face covering because of any physical or mental illness or impairment, or disability (within the meaning of section 6 of the Equality Act 2010)” or
  • you cannot put on, wear or remove a face covering without “severe distress”.

A stammer is very often a disability within s.6 Equality Act. In any event it should be a physical impairment. However paragraph (a) says “cannot” wear, or (even if you do not have a disability or impairment) cannot wear without “severe distress”. It may not be enough that a face covering makes it more difficult to chat to a family member on the bus or train, given that the country is facing a public health crisis. However see the technical note below on a possible argument for a wider interpretation of reasonable excuse.

As explained above, one may have a reasonable excuse not listed in regulation 4. It is not clear what the listed excuse at regulation 4(a) means for stammering, so one may as well move on to what else might be a reasonable excuse, as discussed in the main text above.

Technical note: Argument for wider interpretation of exemption in regulations

I say in Public transport, shops etc: legal regulations (above) that where the English regulations and guidance deal with enabling communication with people who rely on lip reading, clear sound or facial expressions, they say nothing about the communication having to be necessary, or about writing being an adequate substitute. One might argue by analogy that this should apply to stammering too. This section discusses that more fully.

In England regulation 4(b) of both SI 2020/592 and SI 2020/791 says that a person travelling with or accompanying someone who “relies on lip reading to communicate with” that person has a reasonable excuse for not wearing a face covering. Accordingly one might argue that:

  • an inability to chat with a companion if wearing a face covering is sufficient excuse not to wear one. Even then, just making talking rather more difficult may not fall within the excuse. But one might argue it’s enough if you really find it difficult.
  • you are not expected to have to write things down, to avoid the need to talk and remove a face covering, since the regulations apparently do not expect someone accompanying a D/deaf person who lip reads to have to do this. (I suggest “relies on” is not intended to exclude from the exemption a lip reader who could understand written notes from the speaker.)

In addition Face coverings: when to wear one and how to make your own>When you do not need to wear a face covering (gov.uk) gives as an example of not needing to wear one:

“if you are speaking to or providing assistance to someone who relies on lip reading, clear sound or facial expressions to communicate”.

This seems to be saying that in England a similar excuse to regulation 4(b), which only mentions lip reading, applies when speaking to someone who relies on facial expressions or clear sound. Again the guidance says nothing about the communication having to be necessary, or writing being an adequate substitute.

Also the reason some people who stammer have a problem with wearing a face covering is that other people do not find the person’s speech clear enough to understand. The guidance in England (quoted above) specifically says it is a reasonable excuse not to wear a face covering if speaking with someone who relies on “clear sound”. It seems no great leap from there to say that 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 cannot understand you when you wear a face covering, the argument would be that this applies if speaking to people generally.

However, to repeat what I said above: The position is not clear. There is a lack of official guidance on people with speech conditions, and it rather looks like the government has not considered them.

It is interesting to compare the equivalent of the lip reading reasonable excuse in the regulations in various parts of the UK:

  • England: “P is travelling with, or providing assistance to, another person (“B”) and B relies on lip reading to communicate with P”, regulation 4(b) of SI 2020/592 and SI 2020/791;
  • Scotland: “unless the person is … communicating with a person who has difficulties communicating (in relation to speech, language or otherwise) and relies on lip reading or facial expression to be able to communicate”, SSI 2020/279 reg 12(1)(m) and 13(l);
  • Wales: “where P has to remove the face covering to communicate with another person who has difficulty communicating (in relation to speech, language or otherwise)”, WSI 2020/725, reg 12A(4)(b) and reg 12B(4)(c);
  • Northern Ireland: “the need to communicate with a person who has difficulties communicating (in relation to speech, language or otherwise), NISR 2020/151 reg 5(2).

The Northern Ireland wording talks about there being a “need” to communicate, whereas England, Scotland and perhaps Wales do not. Wales says “has to remove”, but arguably that just means the listener cannot understand the communication unless the face covering is removed. So there may be a stronger argument in England, Scotland and Wales than in Northern Ireland for non-essential communication being able to justify not wearing a face covering.

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: Where regulations do not require a face covering though points below may also be relevant.

This can be relevant to claims for reasonable adjustments or discrimination arising from disability (s.15) under the Equality Act, whether or not the place is one where legal requlations require a face covering:

  • Whether or not it is a place where the regulations require a face covering, a customer etc might claim under s.15 EqA that they were treated unfavourably, for example asked to leave, because they were not wearing a face covering due to their disability. Could the business or organisation 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 face covering is not required by regulations but rather by the policy or practice of the business or organisation (eg hospitals), how far is the latter required to make a reasonable adjustment to the policy or practice?
  • In places where a face covering is generally required by legal regulations (eg trains, shops, cinemas), what if the individual believes he has a reasonable excuse for not wearing one but the business or organisation applies a policy or practice of requiring a face covering. How far is the business required to make a reasonable adjustment to the 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 safety point of view for customers to wear a face covering, there is official guidance on making workplaces Covid-19 secure (gov.uk) for England. At least if face coverings are not required by the regulations, this is a useful place to look on how far the government sees face coverings as important for customers in a particular context. An organisation may argue that another reason to require customers to wear face coverings if feasible is to build confidence of customers and staff. Other customers may be deterred if someone is not wearing a face covering. Also some staff may be fearful, particularly if they or someone they live with is clinically vulnerable.

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,
  • not using a particular staff member who is vulnerable,
  • perhaps providing a plastic visor for the person who stammers to wear?

However 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. 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.

Also the legal regulations on face coverings (where they apply) recognise that the requirement to wear a face covering is not absolute. There are exceptions. I suggest it will normally be difficult for a business to legitimately insist on customers or the public wearing a face covering if the person has a reasonable excuse (above) within the regulations, or would have if the regulations extended to the relevant situation. As discussed at that link and in a Technical note above, it may be helpful to draw an analogy with how the regulations and guidance deal with communication with someone who relies on seeing the speaker’s mouth or face.

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 a disabled person did not have a reasonable excuse under the regulations, this does not necessarily mean there is no breach of the Equality Act. EqA Sch 22 para 1 provides a business with a defence if complying with Equality Act obligations on disability would breach another statute or regulation. However that seems not to apply to the face covering regulations because they impose a duty on the individual, not the business. On the other hand, whether the individual had a reasonable excuse under the regulations is likely to be relevant under the Equality Act in deciding whether the business acted reasonably or in a proportionate manner. (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.)

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.

The Equality Act reasonable adjustment duty also applies in Scotland and Wales, subject to the particular legal regulations on face coverings there. Northern Ireland has a broadly similar reasonable adjustment duty in its Disability Discrimination Act 1995.

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