Given the new rules requiring staff in certain settings to wear face coverings, does refusal to wear a face covering when required by law or by the employer (as a result of its risk assessment) amount to misconduct? Who should provide the face covering?

Face coverings

Face coverings are not classed as personal protective equipment (PPE) as they:

• are generally not manufactured to a recognised standard and not CE marked

• do not provide a proven level of protection for work risks such as dust and spray. See Health and Safety Executive (HSE) guidance: Face coverings and face masks at work during the coronavirus (COVID-19) pandemic

The Department for Business, Energy and Industrial Strategy (BEIS) Working safely during coronavirus (COVID-19) guidance also draws a distinction (see eg, the Visitor economy guide) between:

• PPE, including face masks, and

• face coverings

The Cabinet Office guidance Face coverings: when to wear one, exemptions, and how to make your own lists the indoor settings in which a face covering must be worn and also that it is compulsory (from 24 September) for staff to wear a face covering in retail, leisure and hospitality settings.

The provisions relating to the requirement for a member of staff can be found in the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020, SI 2020/791, reg 3, as amended by The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) (No 3) Regulations 2020, SI 2020/1026 and The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Amendment) (No. 3) Regulations 2020, SI 2020/1028.

The version of the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020, SI 2020/791 on Lexis®PSL has not yet been updated to reflect those two sets of amending regulations.

An offence is committed (among other things) by a person who contravenes the requirement in the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020, SI 2020/791, reg 3 (as amended) (the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020, SI 2020/791, reg 6(1)). This will include a member of staff who fails to wear a face covering without reasonable excuse.

Refusal to wear face covering

If an employee refuses to wear a face covering, in order for that refusal to have been misconduct there would need to have been a breach of a disciplinary rule, or a failure to comply with a lawful and reasonable instruction from the employer (see Commentary: Refusal to obey a lawful order: Harvey on Industrial Relations and Employment Law [1355]).

Factors that are relevant in deciding if there has been misconduct as a result of failure to comply with an employer’s instruction include:

• whether the instruction was made in accordance with the contract (there may also be unwritten duties arising from custom and practice)—if it was, then the employee is generally committing an act of misconduct in refusing to comply with it, if it was not, then the employer is acting in breach of contract in seeking to compel the employee to do something which the employer is not lawfully entitled to require the employee to do

• whether there are circumstances justifying the refusal of the instruction, even if it ostensibly falls within the scope of the employer's powers (eg, where compliance with the instruction would endanger the employee’s safety)

• the fairness or reasonableness of the instruction, even if it is lawful (see Payne v Spook Erection Ltd, in which the Employment Appeal Tribunal seems to have taken the view that the refusal to obey a wholly unacceptable and unreasonable instruction could not constitute misconduct at all)

• whether the employee was acting reasonably in refusing to comply with a lawful instruction (see Union of Construction Allied Trades and Technicians v Brain)

For further information, see:

• Practice Note: Reason for dismissal—conduct

• Commentary: Refusal to obey a lawful order: Harvey on Industrial Relations and Employment Law [1355]

Provision of face coverings

As to who should provide the face covering, most people will have their own face covering, given that they will need to wear one outside work eg, when going into any shop or travelling on public transport.

However, the employer may wish to consider:

• providing members of staff with face coverings eg, if it wants them all to wear face coverings that are branded, or the same colour or description, or to make sure that they are hygienic

• having a stock of disposable face coverings available for staff use, in case a member of staff eg, loses or breaks their face covering, or forgets to wash a reusable face covering