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27/07/2021

Employers can insist on mask-wearing if justified and proportionate

Helena Morrissey Colour

Although mask-wearing is no longer legally required, both employers and staff should use common sense and adopt a proportionate approach where needed, according to Thursfields Solicitors.

The comments come as several workplace rows have broken out across England in the wake of the government’s lifting of restrictions on Monday 19th July.

These have ranged from some manual workers claiming masks are difficult to wear during the intensive heatwave, to others insisting that they can no longer be forced to wear masks at any time.

Helena Morrissey, the director, and head of the Employment Law department at Thursfields, explained she had received several queries from clients who had employees refusing to wear masks, in some cases a position not supported by any medical evidence.

She said: “In these cases, they are now considering dismissal for employees’ unreasonable refusal to wear masks in crowded places.

“The point is, although they are no longer a legal requirement, the government expects us, both an employer and employees, to use common sense and adopt a proportionate approach.

“There is, therefore, no reason why employers cannot insist on mask-wearing where it is justified and where it is a proportionate response, and they are within their rights to consider disciplinary action if this is refused.”

Helena was talking in the wake of being unwell herself with a “nasty case of Covid” that had “knocked me off my feet for the best part of a week”, despite being double-jabbed.

She said: “In short, no-one should be complacent, whether as an employer or employee, as there is an inherent conflict between opening up ‘business as normal’ and keeping on top of Covid.

“Although masks are no longer legally required in shops, pubs, offices and so on, the government has made it clear that they expect people to be responsible as we try to keep the virus under control whilst getting our economy and lives back on track.

“Most big supermarket chains have already said they will continue to encourage the use of masks.  Many employers too, being mindful of their legal requirement to provide a safe place of work, continue to recommend – if not mandate – the use of masks.”

However, Helena pointed out that employers should be careful not to enforce the use of masks without justification. 

She said: “It may be that there are reasons why employees must wear masks, for example in food preparation or in the health sector.

“But other workplaces may be able to operate safely without them because the work is done outside, or workers are adequately spaced out. 

“There is no right or wrong approach – and each decision must be made on its own merits. The keywords are ‘reasonable’ and ‘proportionate’. 

“If an employee refuses to wear a mask, they may have a very good reason for refusing, or they may not. Regardless of the merit of the reason, what matters is why you require mask-wearing.” 

Helena added: “If your reason, as an employer, is objective and justified, then ultimately dismissal for refusal may be perfectly lawful.

“Whether this would be a dismissal for ‘some other substantial reason’ or misconduct, such as failure to follow reasonable management instructions, will largely depend on whether the employee has a valid medical reason not to wear a mask, or whether they are just being awkward.”

Any organisations wanting advice on how to deal with mask-wearing and other Covid-related health issues at work can contact Helena Morrissey via 0345 20 73 72 8 or by emailing hmorrissey@thursfields.co.uk.

Helena Morrissey

Helena Morrissey,

Director, Employment & HR Law

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