Covid-19: Tricky issues for employers – Mask-wearing in the Workplace

Posted on: August 26th, 2021

As Covid-19 restrictions have gradually eased, and with the return to the workplace for many, we are now starting to see some common tricky issues for employers as we try to transition back to ‘normal’ working lives whilst continuing to live with the virus.

We have prepared 3 helpful articles to provide some guidance on some of the key issues that employers have been asking us recently.

In this the third of our articles, we talk about mask-wearing in the workplace.

Mask-wearing in the workplace

With the government stating that mask-wearing is no longer a legal requirement, where does this leave employers who still insist on mask-wearing in the workplace but have employees refusing to wear one?

As we discussed in our previous article here, employers are able to implement their own policy in relation to mask-wearing which can set out that staff members must wear masks whilst at work. This is a crucial step to mitigating the mask-wearing problem as your workforce will be clear about what you expect.

Employers should make their decision based on their current Covid-19 risk assessment as well as taking into account their employees’ views. Much of the employers’ approach is likely to depend on the work setting and how safe the work environment is taking into consideration the size and space of the premises and what ventilation is available.

As well as this, employers should consider whether they have any vulnerable or pregnant staff members that may be uncomfortable working where other people are not wearing masks. In these situations you should work collaboratively with your employees to try to come to a resolution, again being mindful of those who may be unable to wear masks due to a disability. Unfortunately, there is no clear-cut answer to the problem and much of this will need to be decided on a case-by-case basis depending on the relative issues that arise.  

However, we are now seeing cases from the first lockdown being heard in the Employment Tribunal and the decision made in a recent case should provide comfort to employers faced with this particular issue.  In the case of Kubilius v Kent Foods Ltd [2021], the Employment Tribunal found the dismissal of an employee to be fair where he refused to wear a face mask at work. Whilst this judgement is not binding and referred to an incident which happened in May 2020, the outcome indicates how Tribunals may decide the outcome of future cases in this area.

If you need any further advice in any of these areas, or are looking for some employment advice generally, please do get in touch with our team, we would be happy to help.