Face coverings: What are the rules for businesses?

Blogs 10 Dec 2021

Our legal experts answer your frequently asked questions about the new rules on face masks across the UK and what your business should do.


This content was last updated on 20 Janaury 2022.

FSB members can find the latest guidance for employers across the UK in the factsheet on Coronavirus Health and Safety Guidance for Employers on the FSB Legal Hub. This FAQ and factsheet will be reviewed regularly as government guidance is updated. Please log in to your member dashboard to view this.

Please note this article is not a substitute for legal advice. FSB members should contact our 24/7 legal helpline for advice.

On 17 January 2022, the Government announced that the measures put into place under plan B will be lifted. This includes the legal requirement to wear a face covering. 

This guidance will updated as further information becomes available. Visit our coronavirus hub for the latest news and guidance.


When do you need to wear a face covering?

In response to the new COVID-19 Omicron variant in the UK new legal travel restrictions came into force on 30 November 2021 and new rules on face coverings apply in England.  Face coverings are now compulsory in shops and other settings where goods and/or services are sold or provided on the premises. 

This includes enclosed shopping centres, banks, post offices, premises providing personal care and beauty treatments (barbers, hair salons, tattoo and piercing studios, nail salons and massage centres), pharmacies, premises providing veterinary services, retail galleries, travel agents, and in cars or vans during driving lessons and driving tests carried out by an approved driving instructor, as well as on public transport; unless individuals are exempt from wearing one.

As announced when it was confirmed that England will move to the Government’s ‘Plan B’, the public, and staff in public facing areas, are required to wear face coverings by law in these additional settings from 10 December 2021:

  • community centres (including village halls), youth centres, members clubs and social clubs
  • libraries and public reading rooms
  • polling stations and premises used for the counting of votes
  • places of worship
  • crematoria and burial ground chapels
  • visitor attractions and entertainment venues (museums, galleries, cinemas, indoor theatres, concert halls, cultural and heritage sites, indoor areas at aquariums, zoos and visitor farms, bingo halls, snooker and pool halls, amusement arcades, adventure activity centres, indoor sports stadiums, funfairs, indoor theme parks, casinos, skating rinks, bowling alleys, indoor play areas including soft-play areas)
  • public areas in hotels and hostels
  • indoor areas of sports stadiums

Staff are only required to wear face coverings on these premises where they come into or are likely to come into close contact with any member of the public. The requirement does not apply to non-customer facing roles (such as warehouse staff).

The legal requirement to wear a face covering means a covering of any type which covers both a person’s nose and mouth. Government guidance on face coverings can be found here.

When are face coverings not mandatory?

Face coverings are not mandatory for either members of the public or staff in hospitality settings, including restaurants, cafes, bars, pubs or on the part of premises which are wholly or mainly used for eating and drinking (e.g. in a café attached to a shop).  They are also not required to be worn by law in photography studios and on premises providing medical or dental services (other than registered pharmacies), including dentists, opticians, chiropractors and osteopaths. Additionally, they are not required to be worn in gyms and exercise facilities (including dance studios), leisure centres, swimming pools, and water and aqua parks.

Customers, visitors or staff may choose to wear face coverings in these settings. Businesses cannot prevent staff, visitors or customers from wearing a face covering in these settings if they choose to wear one, and it is an offence to do so.

Face coverings are also not required in premises or a part of a premises where the main activity is eating, drinking, exercising or dancing as it is a ‘reasonable excuse’ not to wear one when engaging in those activities. Government guidance states that this might include venues being used to host wedding receptions or some music events as well as restaurants, pubs, bars and nightclubs. This is because it is not practical for people to wear a face covering when eating or drinking, and it is not recommended that face coverings are worn when undertaking strenuous activity, including exercising and dancing. 

Additionally, there is a reasonable excuse for someone to remove a face covering when it is reasonably necessary for them to sing, for example, if they are singing as part of a choir, or during a service, rehearsal or for a performance.  This does not extend to circumstances where it is not reasonably necessary to sing.

Outside the settings where the wearing of face coverings is mandatory, the Government expects and recommends the continued wearing of face covering in crowded and enclosed spaces where you come into contact with people you don’t usually meet, and in particular, where the risk of transmission is likely to be greater.

What does my business need to do?

The new rules require businesses in places where wearing a face covering is mandatory to display notices on their premises giving information about that requirement. This is usually done by displaying a poster explaining that it is a requirement to wear a face covering on the premises unless the individual is exempt. You can download a poster from the government website

While businesses are not legally responsible for enforcing the new legislation on face coverings on their premises (as the legal requirement is to display a notice giving this information only), business owners do have a general duty of care under health and safety legislation to keep customers and staff safe so far as possible. 

Some retailers have expressed concerns around policing the new face covering requirements on their premises due to the risk of aggression/abuse from a small minority of the public. FSB has urged customers to make sure they show respect to the business owners and staff of every business they go to in respect of these new legal requirements and has stated that it is vital that business owners feel supported by government at every level and by the police, if necessary.  

What are the rules across the UK?

In Scotland, you must wear a face covering in certain public places by law, unless exempt. This includes retail, hospitality, workplaces and public transport. View a full list and detailed guidance here.

In Wales, face coverings currently remain mandatory in all indoor public places. View detailed guidance here.

Face coverings are also still required in indoor settings in Northern Ireland. View detailed guidance here.

Can my business ask customers and employees to wear a face covering?

As set out above, face coverings are still mandatory in some settings in Scotland, Wales and Northern Ireland and have been reintroduced in England in the settings mentioned above, unless individuals are exempt from wearing one. 

For businesses in England not covered by the new rules, you can choose to still either require or to encourage your employees and customers to wear face coverings, unless they are unable to do so for an age, health or disability reason (in which case those individuals should not be required to provide any written evidence of this, or an exemption card as a condition for entering or remaining on the premises – employers can make reasonable enquiries and request their employee’s permission for medical evidence, if appropriate). 

Businesses and employers will need to consider reasonable adjustments for those with disabilities who may not be able to wear a face covering. Alternatively, businesses or employers who are not subject to the mandatory rules may remove the requirements for face coverings to be worn entirely (subject to the findings of their own risk assessments under health and safety legislation). Where customers or employees choose to wear face coverings, those individuals should be supported in using face coverings safely.

What if a customer refuses to wear a face covering in my shop?

Where customers refuse to wear a face covering on your shop premises you may wish to refuse the customer entry or ask them to leave the premises.  However, if you choose to take this action, you run the risk that you could be accused of discrimination contrary to the Equality Act 2010 (the EA).  Whilst the majority of people not wearing a face mask may simply be choosing not to, in and amongst these there may equally be a customer with a hidden disability.  For example, to refuse entry to an autistic person who suffers from anxiety in busy places may be discriminatory, indeed so may be the act of simply requesting them to go home to get a letter proving what they are saying.  Ultimately in doing so, you are potentially making your goods or services more difficult to access for them than to someone who does not have protected characteristics under the EA, and as such you run the risk of legal action being taken against you.  Guidance on the risk of discrimination in operating a blanket ban on entry to those not wearing face coverings and on the requirement to make reasonable adjustments under the EA for those with disabilities can be found here.

The legislation does provide exemptions, that is to say circumstances in which customers do not have to wear a mask, but in fact it does not say you have to be suffering from a disability to be exempt from wearing a mask, indeed you are exempt if you cannot put on, wear or remove a face covering:

  • because of any physical or mental illness or impairment, or disability (within the meaning of section 6 of the EA, or
  • without severe distress

Therefore any person could, in principle, argue that wearing a mask causes them severe distress regardless of any medical conditions. If a customer were to fail to comply with your request, you may find yourself calling the police as a last resort.  Their role may primarily be to keep the peace and to avoid any escalation.

Whilst retailers do have the general right to decide who does and does not enter or remain their premises, only the police have formal enforcement powers and can issue a fine to those refusing to wear a face covering without reasonable excuse. As stated above the right to decide who comes on to the premises is subject to the caveat that anyone who has a protected characteristic under the EA could claim that by being either refused entry or told to leave they are being discriminated against, and as such our advice is not to take that risk.  Clearly, a retailer cannot physically force a customer to wear a mask, and would be at risk of criminal charges if they do so.  

The legal responsibility for wearing a face covering lies with the individual, you will not be fined if your customers fail to or refuse to wear a face covering on your premises. The individual can be fined a fixed penalty of £200 for a first offence, reduced to £100 if paid within 14 days of a notice being issued.

As such most large retailers have already taken the view that it is neither theirs nor their staff’s responsibility to confront non mask-wearing customers.  Clearly if they do then there is (a) a risk of confrontation and (b) a civil action for discrimination of indeed the customer does have a protected characteristic under the EA.

Do customers in my pub or restaurant need to wear face coverings?

No. The Government has confirmed that the extension of the requirement to wear face coverings in further settings from 10 December 2021 does not apply to customers or staff in pubs and restaurants, or other premises where food or drink is consumed. However, business owners should carry out their own risk assessments to manage the risk of the transmission of coronavirus on their premises. The risk assessment may identify the wearing of face coverings as a required measure in certain circumstances.  The Government guidance on ‘Working Safely during Coronavirus’ for England states that people should wear face coverings in crowded and enclosed settings where they come into contact with people they do not normally meet.

Do I need to carry out a risk assessment?

Businesses and employers must complete a risk assessment and take reasonable steps to manage risks to the health and safety of their workforce and customers in their workplace or setting, including the risks of COVID-19.

For businesses in Wales, a specific coronavirus risk assessment is still required and should form the basis for what reasonable measures are to be taken on any premises to minimise the risk of exposure to coronavirus and the risk of spread of coronavirus.

Got more questions?

For the latest advice and guidance for small businesses and the self-employed, visit our coronavirus hub

As an FSB member, you can call our legal advice line 24/7 and get answers when you need them. Or, visit our dedicated online Legal Hub to access over 1,300 legally compliant documents, templates and fact sheets.


 

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