As ‘Freedom Day’ from COVID-19 restrictions arrives across England, the British Footwear Association has expressed concern about the lack of guidance for businesses on mask wearing. Here, we consider your options and some of the important legislation you need to know.
As of today (July 19, 2021) the wearing of face masks to prevent the spread of COVID-19 is no longer compulsory under ‘Step 4’ of the Government’s ‘roadmap’ out of social distancing restrictions. While the British Footwear Association cannot comment on the efficacy of the scientific decisions behind this change, we have been vocal about the confusing and often contradictory advice given about mask wearing in retail, manufacturing and workshop environments. We have been lobbying for our members extensively and our CEO, Lucy Reece Raybould, has offered numerous comments on the subject to Drapers Magazine, among others.
As an Association, we are concerned about the health and safety of our members and the stark shift in dynamics this will cause in consumer-facing roles especially. The consensus among large retailers is that mask wearing will be ‘encouraged,’ but, as we know, this is unenforceable. It is also important to remember that this potential sticking point among sales associates and consumers is set against a backdrop of increasing retail violence. The British Retail Consortium (BRC) says there were on average 455 incidents a day in 2019, up 7% on the previous year. It has stated that the situation worsened during the pandemic and is now calling for greater legal protections for retail workers – something we at the BFA wholeheartedly support. Let’s take the experiences of Co-op as one example, which reported a 76% rise in anti-social behaviour in 2020 with more than 100 incidents a day.
With the nation on tenterhooks about the months ahead amid rising COVID-19 cases, could the issue of in-store and in-premises mask wearing be the ‘final straw’?
“While the latest Government announcement has effectively removed enforced mask wearing, the advice offered seems to suggest that masks are now to be considered a social courtesy, raising questions for retail staff about the way forward. I think further clarity would be beneficial for businesses but, with the chances of receiving this slim, I believe it will be down to individual business owners to make a call. To do this, they will need to consult carefully with their staff and decide whether to implement a blanket policy or allow/disallow staff to wear masks on a case-by-case basis.
Professor Chris Whitty has explained that mask wearing in crowded indoor public spaces is still recommended, so I would imagine many retailers will pursue this to keep staff safe. Of course, should an individual team member express a desire not to wear a mask, this could result in further challenges and change team dynamics. My concern is that all of this is being discussed against a backdrop of high levels of retail violence and shaky consumer confidence. The uncertainty surrounding face masks is yet another roadblock in the high street’s route to recovery and I will be liaising with British Footwear Association members on a case-by-case basis to help them navigate this latest challenge,”Lucy Reece Raybould, CEO, British Footwear Association.
Step 4 Roadmap Wording
The official wording from the Government on face mask wearing is scant: “Government expects and recommends that people wear face coverings in crowded areas, such as public transport.”
However, if businesses want their customers to use a mask, it is now up to those companies to get people to comply. In practice, this means a member of your team asking a ‘non-compliant’ customer to do something they are not legally obligated to as a show of courtesy, mutual respect or societal politeness… therein lies the potential for a shop floor exchange of words.
In terms of workplaces, the current response from the Trade Unions Congress (TUC), for example, suggests that offices and places of work are a “grey area” under the government guidance. The TUC is advising risk assessments in consultation with employees and unions to determine what precautions should be taken.
Understanding the Legalities
Businesses who choose to enforce mask wearing will need to take advice on their responsibilities under the Equality Act 2010. In following this Act, businesses have a duty not to discriminate against anyone wishing to use their services. However, employers also have a duty to their employees and other customers under the Health and Safety at Work etc Act 1974, which states that businesses should act in such a way as to ensure the health and safety of their workers and customers. We can already begin to see the conflict here!
Let’s also remember here the “pingdemic” we are experiencing nationally, whereby thousands of people are being told to self-isolate. As business owners, there will be a need to recognise the legal framework AND keep staff health enough to come to work so that business operations can continue as normally as possible.
According to this great article by Womble Bond Dickinson, disability claims will remain the most obvious ground for complaints post 19 July. The article continues: “Further, businesses will not simply be able to fall back on compliance with a legal requirement as a justification for having a mask-wearing policy as they do now. However, disability is not the only protected characteristic that poses a legal risk. It is, for example, unlikely to take long for someone to claim that the reason they refuse to wear a mask is a religious or philosophical belief and that a mask-wearing policy is indirectly discriminatory against persons with that belief.”
The entire footwear industry wants to move forward from COVID-19, but we all wish to do so safely and responsibly. If you do wish to continue with a mask wearing policy, it is important to have a clear and confident justification argument in place to protect yourself from legal claims. For example, this might be obtaining scientific evidence on the level of risk posed, an updated risk assessment, surveying your staff or customer base, having a clear list of exemption criteria, and staff training in how to deal with those unwilling to use a mask in your environment.
“I fear we are on the precipice of a really challenging time for retailers with regards to mask wearing, especially considering the stark rise in retail violence. My advice to members of the British Footwear Association and retailers overall is to think very carefully, consult directly with staff to assess their views, and open lines of communication as much as possible so people are truly heard. As we have seen in the news, many businesses like Sainsbury’s, Waterstones and Transport for London are encouraging mask wearing… but note the word ‘encouraging’ and not ‘enforcing,’ which they cannot do by law,” Lucy Reece Raybould, CEO, British Footwear Association.
Do you have strong opinions about wearing face masks in your business? Share your insights with the team at the BFA via email@example.com.