This content was last updated on 26 september 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.
This guidance will be updated as further information becomes available.
What is the current position on face coverings in England?
On 27 January 2022, in England, the legal requirement to wear a face covering ended along with the lifting of other Plan B measures, which were temporarily put in place at the end of November, with further measures introduced in December 2021 due to a raise in coronavirus cases driven by the Omicron variant.
Although the statutory requirement to wear a face covering in England has been lifted, the Government guidance on ‘Working Safely during Coronavirus’ for England and the guidance on face coverings 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.
What are the rules across the UK?
In Scotland, the legal requirement to wear face coverings in most indoor spaces and on public transport ended and became guidance only on 18 April 2022. Government guidance for Scotland strongly recommends that face coverings continue to be worn where appropriate, including in indoor crowded spaces and on public transport.
In Wales, since 28 March 2022, face coverings are only required to be worn by law in health and social care settings. There is no longer a legal requirement to wear a face covering in other indoor public places or on public transport in Wales. Welsh government guidance states that despite it not being a legal requirement, it is strongly advised that both employees and customers wear a face covering indoors, especially in hospitality settings.
In Northern Ireland, since 14 February 2022, with the ending of the legal COVID-19 restrictions on this date, there has no longer been a statutory requirement to wear a face covering in any setting in Northern Ireland. However, the wearing of face coverings in health and social care settings, on public transport and in enclosed indoor settings is strongly recommended.
Can my business still ask customers and employees to wear a face covering?
As set out above, face coverings are still mandatory in some settings in Scotland and Wales, unless individuals are exempt from wearing one in an exemption applies.
For businesses in England and Northern Ireland, although there is no longer a statutory requirement for customers or employees to wear face coverings, you can choose to still either require or encourage your employees and/or 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).
Employers may wish to retain workplace policies requiring employees and visitors to wear face coverings based on their own risk assessments where, for example, the premises are enclosed/poorly ventilated and/or more densely populated, or when employees are in communal areas where they may come into close contact with others. This will be a matter for the employer’s/business’s own assessment. As reported in the news, some of the major supermarkets have said they will continue asking customers, via signage at the door, to continue to wear a face covering on their premises where they are able to do so, while others have said that wearing a face covering will become a personal choice for customers. Some salons and beauticians (and other close contact services) have also opted to retain requirements for face coverings to be worn on their premises. 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 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.
With the easing of coronavirus measures, FSB has urged the public to respect the house rules that each individual small firm has implemented to keep its customers and staff safe.
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 where this is required by law, or where you have chosen to keep this measure in place if your business is based in England or Northern Ireland, 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 covering 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.
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. In England, since April 2022, there has no longer been a requirement to expressly refer to COVID-19 in any risk assessment. The current guidance for businesses in England suggests instead that employers may choose to continue to cover COVID-19 in their general risk assessments. The guidance for England draws attention to employers’ statutory duties under existing health and safety legislation, namely the requirements for cleaning, ventilation and welfare facilities in the Workplace (Health, Safety and Welfare) Regulations 1992, or the Construction Design and Management Regulations 2015 to control occupational health and safety risks.
In your risk assessments, you should consider the needs of employees who have been informed by the NHS that they are at greater risk from COVID-19, including those who have a weakened immune system. If you employ five or more staff, the risk assessment must be in writing. 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?
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.