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Ben Jones
Ben Jones, UK Lawyer
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Experience:  Qualified Solicitor
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Does company policy override government guidelines? I work

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Does company policy override government guidelines? I work in supermarket due to the ongoing pandemic and am exempt from wearing a mask due to breathing problems. However, now they are forcing everyone to wear either a facemask or visor. I have tried to make my point and even show them to the Scottish Government website which states ''those exempt under the Regulations should not be forced to wear a face covering and no one should be abused or treated in an unacceptable way''. I want to make sure my position is correct before I advance any further.
Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.
Customer: replied 21 days ago.
go ahead.

Can I just check what your role actually involves? and how long have you worked there for?

Customer: replied 21 days ago.
I work nights and have done so since last September. In terms of dealing with customers this only involves 1 hour of my shift, which is minimal.

OK I understand and thank you for providing this information. Please leave it with me for now; I will get back to you with my answer as soon as I can, usually the same day. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Many thanks for your patience, I am pleased to be able to continue assisting with your query now. First of all, I am sorry to hear about the issues you have experienced in your situation.

The hierarchy of what applies in preference to something else will depend on whether it is set out in legislation, or just guidance. For example, company policy cannot overrule laws, but it can take precedence over non-binding guidance issued by the Government.

Due to the current situation, face coverings have become mandatory in many settings, including workplaces. This is the general position and employers can expect their employees to comply with these requirements.

In addition, employers have general obligations under law to look after the health, safety and wellbeing of their workers and they must do whatever is considered reasonably practicable to achieve this. Many of these originate from The Health and Safety at Work Act 1974 and The Management of Health and Safety at Work Regulations 1999, which require employers to provide a safe place of work, including safe environment; and to carry out various risk assessments and to control any identifiable risks.

However, there are some exceptions, where some workers may be exempt from having to wear a face covering, usually on medical grounds. This includes, for example, people who cannot put on, wear or remove a face covering because of a physical or mental illness or impairment or disability.

That is why employers should not have a blanket policy for wearing face coverings and adopt an all-or-nothing approach, where people who cannot wear them are penalised or treated detrimentally, such as not being allowed to work.

It is also important to note what the Government has specifically stated about this: “Those who have an age, health or disability reason for not wearing a face covering should not be routinely asked to give any written evidence of this. You do not need to seek advice or request a letter from a medical professional about your reason for not wearing a face covering. Carrying an exemption card is a personal choice and is not necessary in law.”

If an employer is not accepting a person’s reasons for not wearing a face covering, that person will only be able to take further action legally if they are considered disabled in law. That is because only disabled persons have discrimination protection and unless they are considered disabled, there will be no discrimination on the employer’s part if they refuse to accept their reasons or do not allow them to work for not wearing a face covering.

The legal definition of a ‘disability’ can have a broad meaning and there is no single list of medical conditions that can qualify. Potentially, any condition or ailment can amount to a disability if it meets the required criteria.

That criteria are contained in The Equality Act 2010, which defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.

I will break this definition down and examine it in more detail below:

- Physical or mental impairment – this can include practically any medical condition, be it a physical or mental impairment

- Substantial effect – the effect must be more than minor or trivial

- Long-term - the impairment must either have lasted or be likely to last for at least 12 months

- Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities)

Please also take a look at this detailed guide on determining if you are disabled:

https://www.citizensadvice.org.uk/work/discrimination-at-work/checking-if-its-discrimination/check-if-youre-disabled-under-the-equality-act/

If a person satisfies the necessary criteria, they will be classified as being disabled in a legal sense and will have automatic protection against discrimination. This means that they must not be treated unfavourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees.

What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances and the most obvious one in this situation would be an exemption from wearing a face covering.

If someone who is disabled is being treated unfavourably because of their disability or their employer has failed to make reasonable adjustments, that would potentially amount to disability discrimination, which is unlawful. The first step to try and deal with this would be to raise a formal grievance.

If the grievance does not have the desired effect and the discrimination continues, a claim may have to be made for disability discrimination in the Employment Tribunal. The most important requirement with that is it must be submitted within 3 months of the alleged discriminatory act taking place. The next steps to start the process would be to initiate what is known as an ‘early conciliation’ procedure through ACAS, either online by filling in the following form (https://tell.acas.org.uk/find-a-solution-to-your-employment-dispute), or by phone on 0300(###) ###-####

Customer: replied 20 days ago.
Thank you, ***** ***** appreciate the response. A lot of this seems to be down to interpretation. As you stated ''company policy cannot overrule laws, but it can take precedence over non-binding guidance issued by the Government'' and it would appear that the company I work for has just applied a ''blanket policy'' for everyone without justification.''If a staff member is exempt from wearing a face covering due to a disability within the meaning of section 6 of the Equality Act 2010, employers have a duty to make reasonable adjustments to avoid putting the disabled staff member at a substantial disadvantage compared to a person who is not disabled.'' - Taken from Scottish Government website.So essentially, what you're saying is I don't have to wear anything unless they don't accept my reasons, which would then merit me escalating the issue to a higher authority?Sorry, just want to make sure as I'm in a very difficult predicament.
Hi there, thank you for your further queries, which I will be happy to answer. You would have to comply with their policy, which could be a blanket rule requiring everyone to wear a face covering. However, if you are exempt, based on having a disability as defined under the Equality Act 2010, you would not be required to do so. The employer does not have to accept your reasons and can still insist that you wear one. That is where you can potentially challenge them for alleged disability discrimination. I hope this clarifies things for you a little bit more. ​

Hello, following my main response above, I just wanted to check that everything was clear. If you have any further queries about this issue, you can reply to me at any time on this portal and I will be happy to help. Thank you.

Customer: replied 19 days ago.
Thank you, ***** ***** makes sense. I'm more aware of my legal position now and will act accordingly. I appreciate all the help with this matter.

You are most welcome. If you have any further questions about this, please do not hesitate to get back to me and I will be happy to help. All the best

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