Holly Wray Sarah McWhinney December 14 2022 Can employers require staff to wear a face mask even if an employee says they have a disability that prevents them from doing so? Lewis Silkin LLP | Employment & Immigration - United Kingdom Holly Wray, Sarah McWhinney Employment & Immigration IntroductionBackgroundIs wearing a face mask a "day-to-day" activity?Is a workplace face-mask policy justified?CommentIntroductionThis winter is seeing the rise of the "tripledemic" – a deadly surge in cases of covid-19, the flu and the respiratory syncytial virus – which is threatening to overwhelm health services. With Germany's health minister recently calling for the reintroduction of face masks, and growing public concern in the United Kingdom, employers may be wondering what their position is should they require employees to start wearing face masks at work – especially in relation to staff who claim they are suffering from a disability that prevents them from doing so. Two recent Employment Tribunal (ET) decisions have shed some light on this.BackgroundDisabled employees have the right not to be discriminated against in the workplace because of their disability. This includes "indirect discrimination" – situations where disabled employees are disproportionately affected by a policy which applies to the whole workforce (eg, a requirement that all staff wear a mask at work).To be protected, employees must first show that they are, legally speaking, disabled. Employees will meet that definition if they have a physical or mental condition that has a substantial, adverse and long-term effect on their ability to carry out normal day-to-day activities.Is wearing a face mask a "day-to-day" activity?Interestingly, the ET recently issued a preliminary decision in Morter v Ecocleen Services Limited & Others,(1) which found that wearing a face mask was itself a "day-to-day" activity. It therefore concluded that the claimant, Mr Morter, was disabled because his conditions (which were long-term and included anxiety and obsessive-compulsive disorder) had a significant impact on his ability to do so.Critically, however, the ET in this case was asked to assess whether Morter was disabled during the period leading up to his dismissal in January 2021. That period spanned the height of the pandemic, during which time mask-wearing was very much a normal daily activity. As the ET said in its judgment: "At the material time in this case it was an activity carried out almost universally by most men and women on a regular basis. It became a requirement of day-to-day life." Whether the ET would reach a similar decision now, when mask-wearing has dwindled to a relative rarity, is unclear.Is a workplace face-mask policy justified?A second case(2) has also considered whether it is indirectly discriminatory to impose a face-mask policy on disabled employees.FactsMs Shields was employed by Alliance Healthcare Management Services, which produced and distributed medicine for pharmacies and health services (including the National Health Service (NHS)). During the pandemic, Alliance was operating at full capacity dispensing life-saving medication to the public. The ongoing operation of the business was therefore crucial in assisting the United Kingdom's fight against covid-19 and other health threats.Given the potentially serious ramifications of not being able to keep up with demand, Alliance sought to keep its workforce functioning by introducing a requirement that all its staff wear face masks at work. This was aided by the government's decision to legally mandate face masks in July 2020. However, even when facemask regulations were eased the following year, Alliance maintained its facemask policy in order to ensure the continued safety of the workforce.Shields refused to wear a face mask due to her vertigo. Objects close to her face triggered anxiety and panic attacks, which made her unable to work. She subsequently resigned and brought a claim, among other things, for indirect disability discrimination stemming from Alliance's face mask policy.DecisionWhile the ET accepted that a policy requiring employees to wear face masks may be discriminatory, the key question was whether the policy was a proportionate means of achieving a legitimate aim. Essentially, could the discrimination be objectively justified?Alliance was successful in arguing that the underlying aim of the policy was legitimate. It was essential in protecting against the transmission of covid-19, any outbreak of which would have been detrimental not just to Alliance employees but to the wider population. The business needed to keep the risk as low as possible to avoid far-reaching repercussions. When the policy was implemented, it was understood that the virus was transmissible through the nose and throat and that the use of face masks was a recognised method to minimise the risk.Alliance was also able to show that it had acted proportionately. It had worked with Shields and other disabled employees to try to find alternative ways to ensure their safety. Options such as working from home and trying different face masks were considered as alternatives, but all those options were considered impracticable or ineffective against the rising rates of covid-19. This meant that the purpose and effect of the face mask policy outweighed its discriminatory effect.CommentWhat does this mean for employers who are considering reintroducing a requirement that employees wear a face mask in the workplace over the winter?While it seems unlikely that wearing a mask would be considered a "day to day activity" now that there is no requirement to wear one and few people regularly do, employers should monitor this with one eye on whether a sick employee would qualify as disabled.Crucially, employers will also need to be mindful of the fact that imposing a requirement to wear face masks on everyone, including employees who claim that they have a disability which prevents their compliance, will be indirectly discriminatory unless it can be justified. As demonstrated in the Alliance case, this requires employers to show that they have a very good reason for imposing a face mask requirement and, in doing so, have gone no further than necessary.The Alliance case was one of special facts – Alliance was a key supplier to the NHS and the effect of any outbreak would have created risk that went beyond the immediate workforce. At the relevant time, the United Kingdom had only just made the decision to remove the mandate on face masks and the covid-19 situation remained unpredictable and volatile. It was therefore not unreasonable that an employer would continue with such measures to manage the risks. Contrast that with the current situation: 79% of the population has had at least a first dose of vaccine and so are more resistant against covid-19 than they were at the time of this case. In addition, there is less immediate pressure on medication supply chains. It is therefore certainly questionable whether Alliance's defence would work in this context.With several cases trickling through the ET system, it is possible that more guidance will emerge soon. But in the meantime, employers should consider the following when they are looking to introduce new measures to tackle covid-19 rates, or indeed any infection control measures in the workplace:purpose – the need for any measure must outweigh its discriminatory effect. Though many workplaces will rely on the health and safety of their workplace as being the overarching aim, this alone may not be sufficient, unless the workforce has a critical role in public life;proportionality – any health and safety measure (face masks or otherwise) should go no further than necessary. Think about what is now known about the spread of covid-19 and other respiratory infections and how the transmission will impact the business. A way to ensure this is to review current public health guidance and conduct regular risk assessments in the workplace; andreasonable adjustments – employers need to consider possible adjustments for all those that cannot comply on the grounds of disability. Alternatives include different types of face mask, whether the employee can work from home (or an individual workplace can be created) and whether the option of being vaccinated is a reasonable alternative.For further information on this topic please contact Holly Wray or Sarah McWhinney at Lewis Silkin by telephone (+44 20 7074 8000) or email ([email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.Endnotes(1) Mr S Morter v Ecocleen Services Limited & Others – judgment available here.(2) Ms M Shields v Alliance Healthcare Management Services – judgment available here.