With many shops and supermarkets now saying that they won’t admit people without a face mask, disabled people need to know their legal rights. Our disability rights experts have written this fact-checked guide to the law so that you know your rights and what you can realistically do about the situation using the law. But beware – nearly everything you read on the internet is fake news!
WHAT’S THE PROBLEM?
The real problem is not disabled people who cannot wear masks and are exempt from the Regulations requiring people to wear masks. There is only a very small number of disabled people who cannot wear a mask, usually because they have mental health issues, learning disability or autism. Very few disabled people cannot wear a mask for a physical reason. Such a small number of people present very little public health risk to others even if they do not wear masks in shops.
The real problem is the hundreds of thousands of people who don’t want to wear a mask and abuse the exemption scheme to get away with not wearing a mask. The Government is hiding from this reality by failing to put in place any way that shops can tell genuinely exempt people from the fakers and lazy people. This flood of non-mask-wearers abusing the system is why many shops have decided to ban all non-mask wearers even if that makes life difficult for genuinely exempt people and technically might put shops at risk of legal action. Read on for more…
IS REFUSING TO ALLOW EXEMPT PEOPLE INTO A SHOP WITHOUT A MASK ILLEGAL?
Short Answer: Yes, but you can’t really legally stop them.
Long Answer: The Coronavirus Regulations clearly say that people who CANNOT wear a face mask are exempt from doing so, even when the law requires masks to be worn. So, requiring everybody to wear masks in a shop, without taking account of people who are exempt, is clearly against the Coronavirus Regulations.
However, even though this is illegal, realistically there isn’t much you can do about it using the law. The police and councils can fine or take legal action against shops if they fail to enforce the Regulations, but there is no specific power for them to fine or take action against shops who over-enforce the Regulations. All the police and councils can do is point out to the shop that they are behaving illegally.
To force the shop to stop behaving illegally, a court order would be needed. Now, if you have enough money for a barrister and legal fees (£250,000 minimum), you could go to the High Court and you would certainly get an injunction preventing the shop from applying an illegal policy. But, in reality, councils will not spend this sort of money and ordinary people don’t have it. Legal pressure groups might be able to raise the funds, but that takes time and a lot of effort.
So, sadly, a shop refusing to allow exempt people into their store without a mask is definitely acting illegally, but there isn’t any easy way for you to legally stop them doing it.
IS REFUSING TO ALLOW EXEMPT PEOPLE INTO A SHOP WITHOUT A MASK DISABILITY DISCRIMINATION?
Short Answer: it might be, but even if it is, there’s not a lot you can legally do about it
Long Answer: the Equality Act 2010 makes it illegal for shops to discriminate against disabled people. Most if not all people exempt from wearing a face mask are disabled people protected by the Act. So, not allowing exempt people into the shop because they can’t wear a mask COULD be disability discrimination under the Act (but see ‘Alternative Arrangements’ below).
But there isn’t an easy way to take legal action against a shop that illegally discriminates against disabled people. Councils and the police cannot fine or take direct legal action against shops for illegally discriminating against disabled people. In theory, a disabled person who has been discriminated against can go to the County Court and lodge a claim for disability discrimination against the shop. Before the court will consider your claim, however, you have to write to the shop and try to sort out the matter between you and the shop owners. All this will take several months, and the shop’s insurance will usually pay for them to have a lawyer representing them. If you have a strong claim, typically the shop’s lawyers will offer you a small payment (rarely more than £500 and often less) to settle the matter. If you have a weaker claim, then the shop’s lawyers can argue for months and months, putting you to a lot of trouble and expense, and most people give up trying. If you are determined to go to court, and you can’t reach agreement with the shop’s lawyers beforehand, you will need a lawyer too and so you will need to find up to £10,000 in legal fees, plus all the costs of producing the evidence that the court may require. And the award of compensation you get in the end is rarely very large.
Putting all this together, the brutal truth is that (unless they are rich or are backed by a rich pressure group) disabled people cannot easily use the law to stop shops discriminating against them. If it was easier, there would be a lot fewer inaccessible shops!
ALTERNATIVE ARRANGEMENTS BY SHOPS FOR EXEMPT PEOPLE
The Equality Act bans illegal discrimination against disabled people, but (unlike the protection for women or BAME groups) it doesn’t require shops to treat disabled people the same way as everyone else. The law only requires shops to make ‘reasonable adjustments’ for disabled people and they only break the law if they don’t make those reasonable adjustments. Whether something is ‘reasonable’ is decided by courts when they hear claims that something is illegal discrimination. So, the law is very vague about what shops actually have to do to avoid discriminating. This plays straight into the hands of shops who don’t want to try to include disabled people.
If a shop simply bans everyone who’s not wearing a face mask, even exempt people, that’s illegal disability discrimination. But if the shop ‘says’ they will serve exempt people in the street, or at the doorway, or go in and collect their shopping for them and bring it out to them, or deliver it, then the shop can claim they have made a ‘reasonable adjustment’ for those disabled people who cannot wear a face mask, and so they are not acting illegally. Many shops are doing exactly this. Now, these sorts of possibly humiliating and upsetting procedures may not be fair or right, but only a court can decide whether or not they are legal – and the court won’t even get to think about the issue unless someone takes the shop to court. As pointed out above, it’s a long, difficult and expensive process to get a shop into court in the first place and the shop’s lawyers will argue at every stage that they haven’t broken the law because of their other arrangements for exempt people.
In reality, if a shop bans all non-mask wearers and says it has made other arrangements for exempt people to shop with them, it is almost impossible to use the law to stop them. This applies even if the shop hasn’t actually got other arrangements in place or doesn’t use them.
IS IT ILLEGAL TO ASK PEOPLE FOR PROOF OF EXEMPTION AND STOP THEM ENTERING SHOPS IF THEY CAN’T PROVE IT?
Short answer: no, it isn’t illegal at all.
Long answer: Covid-denial groups have spent a great deal of time and money flooding the Internet with material which falsely claims that it is illegal to stop people without masks from going into shops, or to ask people for proof of exemption. They even claim, using made-up legal references, that people who do ask about exemptions can be fined ‘under the Equality Act’. Obviously, these groups just want to scare shops into not trying to enforce the rules. What they say is false.
It is not illegal for the owner of private property like shops to ask people questions to help them decide if they’d like to let them onto their property. Obviously, the shop owner shouldn’t use the questioning process to prevent or deter people from a protected group, like black people or women or disabled people, from entering, because that would be illegal discrimination. But if a shop owner wants to ensure that people entering the store are following Coronavirus Regulations which the shop is legally required to enforce, then asking questions is perfectly OK. In fact, not asking questions might be seen as a failure to enforce the Regulations.
So, shop staff can definitely legally ask people for proof of exemption from the Coronavirus Regulations, and they can definitely stop them entering their private property if they can’t give a satisfactory answer. The shops are under a duty to enforce the Regulations and they can’t do that if they just allow anyone to come in.
If a disabled person is asked by shop staff if they are exempt, and asked for proof, and they object to that, the only legal thing they can do is to enter a claim for disability discrimination at the County Court. They can’t call the police, as no criminal offence has been committed, and they can’t ask the council to intervene as no breach of the Regulations has happened either. The idea that there is some sort of fine system in place as claimed on social media is completely false. And, as pointed out above, it takes a lot of time and money to bring a claim in the County Court and you still have to prove that being asked about your exempt status and refused access was actually illegal disability discrimination.
The Government say on their website that exempt people should not be asked to produce evidence of exemption, but this statement has no legal force at all. The Government only wants to stop people asking their doctors for proof of exemption, and so it said that proof of exemption isn’t required – and provided a free downloadable card for exempt people to use. This ridiculously weak system was bound to fail, and it has.
WHAT CAN EXEMPT DISABLED PEOPLE ACTUALLY DO?
If you can’t wear a face mask because of your disability, and you aren’t higher-risk for Covid-19, you have a perfect right to do essential things that non-disabled people do, such as going food shopping. BuDS defends that right. Like everyone else, however, you also need to think about protecting yourself and other people from this deadly virus.
Wearing a face mask protects you and other people. So, BuDS recommends first of all that people who might be able to wear a face mask try hard to see if they can tolerate a face mask, at least for the time that you need to be in shops. We completely accept that for some people, even trying is going to be impossible, but we also know that many disabled people, by trying hard and with support, have been able to get used to a face mask for short periods.
If you really can’t wear a face mask in shops, BuDS recommends that you should first look at whether you can manage without going to shops. We say this because it is better for everyone if people don’t mix indoors, with or without a face covering. If you can get shopping done by others, or collected, then it is much safer for you to do this rather than go around in shops without a face covering.
If you are mixing with other people a lot, maybe because you are low risk for the virus as a younger healthy person, you should do the responsible thing and not go to shops to protect others, especially if you can’t wear a face mask.
If you live in Bucks, then soon you will be able to get a Fair4All Card from BuDS. The card will enable you to prove that you are legally exempt, and BuDS will also also work with your local shops to make sure they recognise the Card and do not give you trouble if you need to shop. Applications for the Card will open very soon.
BuDS recommends that people who are genuinely exempt talk to your shops beforehand to tell them that you are exempt and that you have no choice but to shop there. You can point out that you have a legal right to enter without a face mask and that, as only one person, you don’t offer a significant public health risk. If you can, you can reassure them that you don’t live a risky lifestyle mixing with other people. If, however, the shop still refuses you entry, you should ask them what alternative arrangements they can make for you, such as delivering your shopping or serving you outside the shop. These sorts of ‘reasonable adjustment’ are required under the Equality Act (although, as we say above, there isn’t a lot you can do if they refuse). By speaking to the store beforehand, you might avoid the need to go at all, and certainly you will know what their attitude will be and so potentially avoid any upset or embarrassment at the door.
If you have any comments or questions, we will do our best to answer them. We realise that this is a very difficult and upsetting situation for many people and we are here for you.
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