Fake government guidance is wrong about face masks and equality laws

25 January 2022
What was claimed

If you challenge someone not wearing a face mask you can be held personally liable for a summary offence under equality laws and could be subject to a fine of up to £9,000.

Our verdict

While the government advises that members of the public should not challenge someone who is not wearing a face covering, doing so does not constitute a criminal offence.

A post on Instagram claims that challenging someone who is not wearing a face mask could mean you are committing an criminal offence according to equality and anti-discrimination laws, and could be fined up to £9,000. 

The post is styled to resemble an official notice from the government, including a government logo and a heading that states ‘HM Government’, and claims that “you may be personally liable of an offence on summary conviction to pay a fine” if you challenge someone who is not wearing a face covering. 

Full Fact could find no evidence that information with the same wording as the post had ever been published by the government, suggesting it has been written and published as a picture by an unofficial source. The information it shares is not correct.

As we have written before, challenging someone as to why they are not wearing a face mask is not a criminal offence and therefore, contrary to the claims in the post, will not lead to a summary conviction (a conviction for a criminal offence triable only in a magistrates’ court, which typically hears less serious cases such as motoring offences and minor assaults). 

The Equality Act does not make it a criminal offence to discriminate against someone, so a request for a customer to wear a mask would not give rise to criminal liability (described as a summary offence in the Instagram post). As the official Equality and Human Rights Commission explains, claims of discrimination under the Equality Act are dealt with by bringing a civil claim, not by going to the police or criminal courts.

The Equality Act 2010 legally protects people from discrimination. As we’ve seen before in similar posts, the Instagram picture incorrectly cites sections 112 and 119 of the Act to claim that challenging someone who is not wearing a mask could result in an individual being subject to a summary conviction with a fine of up to £5,000 or £9,000 respectively. 

Neither of these sections is about what counts as discrimination, or about face coverings. Section 112 sets out circumstances when it can be unlawful for someone to knowingly help another person discriminate (for example, it can determine if an employer is legally responsible for an act of discrimination carried out by their employee).  Section 119 is about what remedies are available for people who have brought a successful civil claim for discrimination in a county court. In particular, it makes clear that damages for discrimination can include damages for injury to feelings. 

The Equality Act makes service-providers such as shops and restaurants liable in civil claims for acts of disability discrimination against members of the public. 

However, a request by the owner of a business to a disabled person to wear a mask is very unlikely to result in a successful civil claim for disability discrimination, as long as the business owner has followed the government guidance and not singled out the disabled person for less favourable treatment than other non-disabled customers.

The government has urged the public to be “mindful and respectful” of people who cannot wear face coverings, and has said that members of the public should not challenge other people who are not wearing masks or face coverings. 

There is no legal requirement in England to show an exemption card for not wearing a face mask, and people who have a health, disability or age reason for not wearing a face mask do not need to routinely show evidence of this. 

Police and Transport for London officers do have powers of enforcement if someone refuses to wear a mask in a place where it is required without reasonable excuse, including issuing fines.

Legal requirements to wear a face mask in some indoor settings will be lifted in England on 27 January, but rules will remain in place in Wales, Scotland and Northern Ireland (though people who do not wear a face covering in Northern Ireland are now no longer required to show exemptions). 

Photo courtesy of Kai Pilger, via Unsplash. 

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