He’s refusing to wear a face mask?

He’s refusing to wear a face mask?

March 26, 2021

Wearing of a face mask where social distancing can’t be achieved has been with us for some time now. Featuring in many an organisation’s COVID Risk Assessment and workplace procedures.

As we might have expected in some workplaces, employees have been resistant to wearing a mask. This has been dealt with as a Health and Safety issue. If the Government guidance isn’t followed the employer can argue it has a duty of care to ensure that employees wear the PPE provided.

When investigating allegations that an individual is refusing to wear a face mask (or in the case we dealt with, had added slits to his!) the employer needs to establish whether the employee has a legitimate reason to refuse. If the employee does not have a legitimate reason for not wearing a face covering, a failure to wear one is likely to be a refusal to follow the employer’s reasonable instruction. Therefore, grounds for beginning a disciplinary process.

In Early Years, we saw on the 15 March the latest edition of Actions for Early Years. This time 70 pages of guidance for employers in the sector about how to operate during the pandemic. In this guidance it has introduced 9 Systems of Control.  We now know that settings are being issued with face masks free of charge. This is because the Government has decided that the wearing of masks in communal areas and where social distancing between adults cannot be achieved is a System of Control.


So what do you do if your employee refuses to wear a mask?

Well, unlike a refusal to take a lateral flow test, a refusal to wear a mask is a health and safety matter you can address. You should investigate, then decide whether there is a disciplinary case to answer. If the investigation cannot find a legitimate reason why someone cannot wear a mask, and you may need to seek Occupational Health advice on this. Then given what they may say is their reason, you will then need to decide whether you will take this to a disciplinary. If someone’s legitimate reason can be accommodated so they won’t come across others who they cannot social distance from the employer would be expected to make an adjustment.

To remind people to wear masks, signage can really help. You will find some by searching Google for images of wearing a face mask poster.

The guidance issued on 15th March, makes the point that face shields are not as effective as a face mask. So, it’s worth bearing this in mind, with what you will be expecting your staff to wear.

If you need any assistance managing your staff during this pandemic, please do not hesitate to contact us at


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