I am writing to you regarding your store policy on face masks, and in particular, mask exemptions.
The media has made much of the fact in recent weeks that supermarkets will be "enforcing" the wearing of masks, and discriminating against customers who do not wear them.
This gravely concerns me, as there are a wide range of mask exemptions under the law, many of which relate to private medical issues that people quite rightly do not wish to disclose to strangers in supermarkets. More pertinently, perhaps, the law protects them from doing so.
If you study the government guidance, as I have done diligently since it was introduced, you will discover a wide range of exemptions to mask-wearing exist under the law. These include, but are not limited to:
- children under the age of 11 (Public Health England does not recommend face coverings for children under the age of 3 for health and safety reasons)
- people who cannot put on, wear or remove a face covering because of a physical or mental illness or impairment, or disability
- where putting on, wearing or removing a face covering will cause you severe distress
- if you are speaking to or providing assistance to someone who relies on lip reading, clear sound or facial expressions to communicate
- to avoid harm or injury, or the risk of harm or injury, to yourself or others ‒ including if it would negatively impact on your ability to exercise or participate in a strenuous activity
Clearly, it is not possible to discern simply by looking at someone what physical or mental health issue they may be suffering from that prevents them from wearing a face mask. Disabilities discrimination legislation exists to protect those who have physical or mental disabilities from being targeted or discriminated against, and this includes those with hidden disabilities, which by definition are not obvious to the casual observer.
Existing legislation, which is not and cannot be invalidated by the coronavirus rules, states that those with hidden disabilities are protected by law from disclosing whether they have a hidden disability or what it is. To ask someone to reveal such information is in breach of the Equality Act 2010, and can carry with it a personal fine of up to £5,000 and punitive damages of between £900 and £9,000 (see sections 112 (Aiding conventions) and section 119 (Remedies) of the Act).
The Government is, of course, well aware of this Act, which is why its own regulations state that the mask exempt do NOT have to provide any "proof" of their exemption, including wearing a badge or lanyard. If challenged, it is sufficient to state that they are exempt. They are not required to provide any further information, and if pushed to do so or denied service, may have grounds to sue, as occurred in a recent case where a disabled woman was awarded £7,000 after being discriminated against for being unable to wear a mask (source: https://disabilityrights.org.uk/first-face-mask-discrimination-case-nets-7-000
I am writing to you today to seek your unequivocal assurance that no individual will be discriminated against or treated unlawfully in your stores because they are unable to wear a face mask. What this means in practice is that all of your staff receive sufficient training in disabilities discrimination and equality legislation, and know they are not to seek further information from those without a face mask other than a statement from the individual that they are exempt. It must be made irrefutably clear to every employee of your organisation that the mask exempt are not required to show proof, to wear a badge or lanyard, or to disclose any personal medical information to any member of staff.
I look forward to receiving your assurance that this is indeed the case in all of your stores, and to promoting your establishment to my very wide range of contacts as inclusive, non-discriminatory, and law-abiding.