By Employment lawyer, Alan Lewis, partner with City of London-based firm, Constantine Law (www.constantinelaw.co.uk)
Seeing one or two individuals wearing face masks in public way back in January/February 2020 was considered a bit of an oddity.Well haven’t times since changed?
In the 16 months since the UK first went into lockdown, the novelty of mask wearing in public is a distant memory and we don our masks without a second thought. All that changed on Monday 19 July 2021 when the legal requirement to wear a face mask in England was scrapped, along with social distancing. Contrast the English approach with the position in Scotland where the First Minister said on 13 July, “Measures like the continued wearing of face coverings are important…For as long as necessary we will ask people to take sensible pre- cautions – like the wearing of face coverings – to allow you, like everyone else, to enjoy more normal life again.”
This contradiction of lawful measures either side of the England/Scotland border may at first sight present a conundrum for hospitality businesses with outlets in both countries. However, in practice
the differences in law will be immaterial – because caution will not be abandoned altogether in England. Official guidance says that face masks should still be worn in some scenarios as a voluntary measure.“There is an expectation of people to wear masks indoors, in crowded places, on public transport,” said Nadhim Zahawi, minister for vaccines, on 11 July.
Previously in the hospitality industry, guests were required to wear a mask when moving around – such as when going to their table, going to the bathroom or paying the bill. For staff it was tougher, having to wear masks for the entirety of their shifts to try to help control the spread of the virus. Some staff reported feeling hot and uncomfortable having to wear masks for long periods of times and found it hard to talk to guests through them. Others are more cautious, warning that if we completely remove the need to wear masks we could see another spike in the virus which in turn could result in more no-shows – a problem which the industry has faced throughout the pandemic.
Hospitality businesses can now decide their own policies. In other sectors, several major companies, including TFL and Waterstones have announced they will continue to ask customers to wear face coverings. And it seems that this is a sensible approach given the intermingling with customers and the duty of the employer to have due regard for the health and safety of its workers. Similarly, employers in the hospitality industry would be wise to continue with stringent health and safety polices that could include face mask wearing as a key element, if deemed necessary.
An interesting question is what rights do employees have if they feel customers should be wearing masks? If an employee feels concerned about this, they might raise an informal concern with their manager and even escalate it to a formal grievance. In that case, employers should follow process to deal with the grievance fairly. Generally, if employers have followed health and safety guidance at work, this should not present a serious issue.
However, if an employee had a vulnerable condition, for example, and was particularly sensitive to dealing with others who were not wearing masks, the employer would be wise to consider possible Equality Act issues here and whether or not reasonable adjustments could be made in the employee’s work arrangements.The employer may also need to carry out additional measures with a view to making the workplace safe for vulnerable workers. This may include requests for regular temperature taking and Covid-19 testing.
Compliance whilst at work is one thing, but what of the challenges faced by workers travelling to and from work? The number of people in England who have been told to stay at home by the NHS Test and Trace app has soared, rising by tens of thousands each week during the last month. By summer it is expected that there will be about 100,000 cases of virus infection per day and this has led to warnings that millions of people will be ordered to self-isolate by Test and Trace.
Stories are widespread of people deleting the app to avoid the risk of being “pinged” and with packed tube trains and buses on busy commutes, it would very surprising if the majority of workers retain the app. Whilst employers may be tempted to ask staff to delete the app, they should avoid doing so if they wish to avoid claims for breach of health and safety duties and, where workers are made to suffer a detriment if they do not delete the app, claims of automatically unfair dismissal.
Some key takeaways for hospitality businesses are:
• Provide clear, consistent and regular communication to staff to improve understanding of policy.
• Develop communication and training materials
• Have ongoing engagement with staff (including trades unions or employee representative groups, where appropriate).
• Encourage workers to continue to observe good hygiene practices such as washing hands thoroughly before putting on a face covering and after removing it, avoid touching the face covering or face when the covering is on, and changing face coverings if they become damp or if the wearer has touched it.