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Archive: Face covering regulations and stammering

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This page does not apply outside Great Britain.
Last updated 2nd October 2020 (part update 22nd July 2021)

This is an archive page about the Coronavirus (Covid-19) regulations that applied in England before 19th July 2021. They were repealed by SI 2021/848. For the current position see Face masks/coverings and stammering.

Summary

Exemptions or reasonable adjustments

There was a difference between:

Card, badge or lanyard to show disability

If you want 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

Scope

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

  • public transport,
  • taxis and private hire vehicles,
  • 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, except eg when reasonably necessary to remove the face covering to eat or drink.

The full list was in the government guidance at Face coverings: when to wear one and how to make your own (archive of gov.uk at 17 July 2021).

The legal regulations for England (both as amended) were:

Generally the regulations in England exempted staff from the requirement to wear a face covering – except for many retail, leisure and hospitality staff as from 24th September 2020: below Do regulations require a face covering for staff? However even though the regulations did not apply to staff, the employer might 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 Face coverings/masks>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 did not apply if one had a “reasonable excuse”. In England regulation 4 of SI 2020/592 for transport and SI 2020/791 for shops etc contained 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 applied to you, for example “severe distress” if you wear a face covering. However largely it is unclear how far the listed reasonable excuses applied to stammering.

You didn’t have to fall within the list though. It seems you could 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 (archive of gov.uk, 17 July 2021) said 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 seemed 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 helped the argument (below) that it was 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 was 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.

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, the guidance (and partly the regulations) said you did not have to wear a face covering if you were speaking to someone who relied on lip reading, clear sound (above) or facial expressions to communicate. It 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 is stopping you from chatting to someone, that was 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 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.
  • Note: If you were with a companion who was not in your household or support bubble and who was only 1m (less than 2m) away, then the guidance at the time, albeit not necessarily the law, was probably that you should be wearing a face covering anyway.

However the position under the regulations and guidance was not clear. Generally I would say is 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 could not 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 had a reasonable excuse if for example:

You needed to speak to the driver, shop assistant or another staff member and really found it difficult with a face covering on, assuming the face covering significantly contributed 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 said 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 could 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 was not clear.

Reasonable excuse: longer conversations with staff, professionals etc

From 8th August 2020 the places where regulations in England required a face covering (Face coverings: when to wear one and how to make your own (gov.uk)) included 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 have been a reasonable excuse for not wearing one.

The business should have been 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. 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 have been 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 had 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 are required by regulations

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

If the customer who stammers was 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 was 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 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

See Face masks/coverings and stammering.

Some workers required to wear a face covering

There are many workplaces where the English face covering regulations just did not apply, for example most offices and factories. Even in places where the face covering regulations did apply to customers, generally the English regulations exempted 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) meant that from 24th September 2020 this exemption did not apply to retail, leisure and hospitality staff if the member of staff was 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 were normally required by the regulations to wear a face covering unless they had a “reasonable excuse” (see below).

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

Government guidance is at Face coverings: when to wear one and how to make your own>Face coverings at work (archive of gov.uk, 17 July 2021). There was 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 seemed that a shop assistant on a till behind a perspex screen was 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. Archive as at 23 Jan 2021.

Despite this amendment limiting the exemption for staff, the other exceptions from the face covering regulations still applied. Therefore the regulations still did not require a staff member such as a shop assistant to wear a face covering, even in public areas where close contact was likely, if the individual had 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.

Workers: Where regulations did not require a face covering

See Face masks/coverings and stammering>Workers: Where regulations did not require a face covering.

As to close contact services (such as hairdressers, barbers, beauticians, tattooists, sports and massage therapists, dress fitters, tailors, fashion designers) in England the Covid-19 secure guidance on close contact services (gov.uk) section 6.1 said that someone providing the close contact service should use a clear visor/goggles and a Type II face mask. The guidance previously said this was mandatory in law from 24th September 2020, but no longer seemed to say that. It was not evident what law made it mandatory from that date. Even so, because of the risks from the job, the employer might be justified in insisting that members of staff wear a face mask complying with the Covid-19 secure guidance or having equivalent effect, at least when they are close to customers.

Technical note: Specific reasonable excuses

This technical note outlines how:

  • the 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 seemed one can have a reasonable excuse which is not listed;
  • so one was 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 did not apply if one had a “reasonable excuse”. Regulation 4 of SI 2020/592 for transport and SI 2020/791 for shops etc contained very similar lists of reasonable excuses (with a couple of extras for shops etc). However it seemed you can have a different reasonable excuse not listed there. Regulation 4 said that a reasonable excuse includes those listed. Also according to the Independent, guidance to the police on public transport said:

“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 was paragraph (a). This applied 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) said “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 made it more difficult to chat to a family member on the bus or train, given that the country was 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 could have a reasonable excuse not listed in regulation 4. It is not clear what the listed excuse at regulation 4(a) meant 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 dealt with enabling communication with people who rely on lip reading, clear sound or facial expressions, they said 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 said that a person travelling with or accompanying someone who “relies on lip reading to communicate with” had 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 was 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 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. (I suggest “relies on” was 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 (archive of gov.uk, 17 July 2021) gave 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 seemed to be saying that in England a similar excuse to regulation 4(b), which only mentioned 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.

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 said it was 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 applied if speaking to people generally.

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

It was 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 2020/334 Schedule 7, para 1(1)(m) and 2(m);
  • 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 2020/1149, reg 18(4)(b) and reg 19(3)(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(e).

The Northern Ireland wording talked about there being a “need” to communicate, whereas England, Scotland and perhaps Wales did not. Wales said “has to remove”, but arguably that just meant the listener cannot understand the communication unless the face covering is removed. So there may have been 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.

On Scotland, Wales and Northern Ireland, see now Face coverings/masks>Face covering regulations in Scotland, Wales, Northern Ireland.

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