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Challenging someone for not wearing a face mask isn’t against the Equality Act
Social media posts on Facebook claim you could be fined thousands of pounds under the Equality Act if you challenge someone who is not wearing a face covering. This is not correct.
The posts say: “The government advice is not to challenge people to wear a face covering. This is for GOOD REASON. If you do so, you and your employees may be PERSONALLY LIABLE for AN OFFENCE liable on a summary conviction to pay a fine of up £5,000 - section 112 (Aiding contraventions) of the Equality Act 2010.
“AN ACT OF DISABILITY DISCRIMINATION and be ordered to pay any individual who suffers injury to feelings compensation between £900 and £9,000 - section 119 (Remedies) of the Equality Act 2010 [sic].”
This is not correct.
The government has urged people to be “mindful and respectful” of circumstances when people cannot wear a face covering. They have also said that members of the public should not challenge people who are not wearing one.
Government guidance says premises where face coverings are required should “take reasonable steps to promote compliance with the law”. This includes displaying signage or verbally reminding customers to wear a face covering on their premises.
Additionally, transport operators can deny access to services if passengers refuse to wear a face covering, and both the police and Transport for London officers can issue fines, with repeat offenders in England now risking fines of up to £6,400. The law states it is an offence to fail to wear a face covering if you do not have a reasonable excuse (listed below).
Government guidance states that “those who have an age, health or disability reason for not wearing a face covering should not be routinely asked to give any written evidence of this”.
The government has created templates for exemption cards that people who are exempt from wearing face masks can choose to carry if they feel more comfortable having them.
So, in summary, people who work in premises where face coverings are required can remind someone to wear a mask, but should be clear that some people are exempt.
Face coverings are mandatory in certain public settings across the UK, such as in supermarkets and on public transport. (There are different rules for England, Wales, Scotland and Northern Ireland and we’ve written more about face masks here).
What does the Equality Act say?
The Equality Act 2010 legally protects people from discrimination. The Facebook posts incorrectly cite sections 112 and 119 of the Act as evidence that you will be fined if you challenge people who do not wear a face covering and mis-state the law in several ways.
Neither of these sections is about what counts as discrimination, or about face coverings.
Section 112 sets out circumstances when it can be unlawful for someone to knowingly help another person discriminate (for example, it can determine if an employer is legally responsible for an act of discrimination carried out by their employee).
Section 119 is about what remedies are available for people who have brought a successful civil claim for discrimination in a county court. In particular, it makes clear that damages for discrimination can include damages for injury to feelings.
The Equality Act makes service-providers (e.g. shops and restaurants) liable in civil claims for acts of disability discrimination against members of the public. For example, a blind person with a guide dog who has been unjustifiably barred from a shop can claim damages against the shop, including for injury to feelings.
However, a request by the owner of a business (like a shop or restaurant) to a disabled person to wear a mask is very unlikely to result in a successful civil claim for disability discrimination, as long as the business owner has followed the government guidance set out above and not singled out the disabled person for less favourable treatment than other non-disabled customers.
It’s also important to note that the Equality Act does not make it a criminal offence to discriminate against someone, so a request for a customer to wear a mask would not give rise to criminal liability. In fact, as the official Equality and Human Rights Commission explains, claims of discrimination under the Equality Act are dealt with by bringing a civil claim, not by going to the police or criminal courts.
“Criminal liability” relates to criminal offences. If someone is thought to have breached criminal law they are prosecuted by the state and often tried by a jury. If they are found guilty (which must be proved beyond all reasonable doubt), they are sentenced to a criminal penalty like a prison sentence or a fine.
“Civil liability” relates to disagreements between organisations or individuals, such as one private individual suing another private individual (or a business etc), usually for damages. Cases are considered on the balance of probabilities.
In the vast majority of cases, the Equality Act does not create criminal offences but just civil rights of action. Family disputes, personal injury claims, breaches of contract and employment law are areas of civil law.
References in the social media posts to a criminal offence are a misinterpretation of subsection 3 of section 112 of the Equality Act. That subsection says it is a criminal offence to “knowingly or recklessly” make a “false or misleading statement” about there being no breaches of the Equality Act in particular circumstances. This is largely to prevent employers and service providers from avoiding liability for the discriminatory acts of their employees.
Who is exempt from wearing a face covering?
In England, people are exempt from wearing face coverings if:
They are a child under the age of 11 (this age limit is different across the UK)
They cannot put on, wear or remove a face covering because of a physical or mental illness or impairment, or disability
Wearing a face covering would cause them severe distress
They are speaking to or providing assistance to someone who relies on lip reading, clear sound or facial expressions to communicate
It is needed to avoid harm or injury, or the risk of harm or injury, including if wearing a face covering would negatively impact their ability to exercise or take part in strenuous activity
They are a police officer or another emergency worker, given that this may interfere with their ability to serve the public
There are also scenarios where you can remove a face covering, such as if you are asked to in a bank or by retail staff for identification, when seated to eat or drink in a hospitality premise, when exercising or to take medication.
Thanks to Emma Dixon, barrister at Blackstone Chambers, for contributing to this article.
Correction 3 November 2020
This story has been updated to clarify that members of the public should not challenge people for not wearing face coverings.
