People walking through access to a supermarket with signs requiring customers to wear a Face Mask

Hostile Environment Policies: A Proportionate Aim of Achieving a Legitimate Aim?

We know that Covid-19 has had a disproportionately negative impact on disabled people in the provision of education, food supplies, and communications. It seems that impact is spreading to the ‘High Street’ which is a trend which concerns me, especially as we look forward to a roadmap out of Covid restrictions.

Recently, guidance which we issued clarifying the law as it relates to blanket ‘No Face Mask No Entry’ policies affecting disabled people attracted some of the most radically opposed views and abusive responses I’ve seen in 15 years.

Undoubtedly human behaviour has changed. At the beginning of Covid I observed the public frowning on those wearing face masks, whilst now the opposite is the norm. I get that. I look at people without masks and wearing sunflower lanyards and wonder whether they really can’t wear them.

Some of that is my distrust of the Sunflower lanyard. It does not validate disability, and does not show the service provider what reasonable adjustments might be necessary. If I think that, with my disability awareness, I can see how much work we have to do to educate society that some of our community can’t wear face coverings as a consequence of genuine physical, or mental health disabilities……….. in line with Government guidelines.

We’re running hundreds of cases against businesses who believe that they have the right to refuse access to anyone, as private limited companies. More than that, they say that these policies whilst refusing access to some can be justified on the basis that the benefit in reducing the likelihood of infection outweighs that refusal. Current feedback indicates that issue will have to be played out in the Courts.

But, it’s the way people are treated at point of access which causes extreme embarrassment and in some cases feelings of intimidation…… and a hostile environment.

So, I thought I’d set out what the Equality Act says about that treatment, and the remedy which applies if you are subject to it.

The Legal Bits…………

 

Section 26 of the Equality Act 2010 sets out the definition of harassment as follows insofar as is relevant:

26  Harassment

(1)     A person (A) harasses another (B) if—

(a)     A engages in unwanted conduct related to a relevant protected characteristic, and

(b)     the conduct has the purpose or effect of—

(i)     violating B’s dignity, or

(ii)     creating an intimidating, hostile, degrading, humiliating or offensive environment for B..

(4)     In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—

 

(a)     the perception of B;

 

(b)     the other circumstances of the case;

 

(d)          whether it is reasonable for the conduct to have that effect.

Harassment is a broad concept – in the context of disability employment, it has been held to encompass the suspension of a staff member for failing to undertake a particular course where this was considered to be unwarranted (see Prospects for People with Learning Difficulties v Harris UKEAT/0612/11/DMUKEAT/0612/11/DM); and in services,  the treatment of a wheelchair user by implying that she would damage a lift (see Samuels v Corn Exchange Theatre Company  Peterborough County Court).

There is no comparator for treatment (against non-disabled customers), it must simply have been “related” to disability.

Whether the way you’re treated amounts to harassment will depend upon the precise words used and the tone; whether this was within ear shot of people and what the words used were said in response to.

So, if your exchange with shop staff leads to their raised voices, or humiliation in front of others, there is certainly the basis for a claim of harassment

The fact that other customers might abuse you is unfortunately not in and of itself grounds for a claim of harassment – 3rd party harassment provisions in the Equality Act were repealed and Unite the Union v Nailard [2018] EWCA Civ 1203 has determined that third party harassment is not covered by the Equality Act.

If staff shout out “we can’t let her in can we” whilst undoubtedly poor customer service and drawing attention to you might make you feel humiliated,  it has to be “reasonable” for you to feel humiliated by the unwanted conduct (which was related to your disability). Again, the tone used is important as is whether anything else was said.

Simply asking you why you’re not wearing a mask, or explaining company policy is not enough to justify a claim.

So, the message here is that the way a policy is applied, and your treatment, is very important. In order to succeed with a case, you will have to ensure that the facts cannot be muddied. You will need evidence that you were where you say you were. Ideally you will have proof of the exchange and who it was with.

We continue to work with other disabled peoples’ organisations to help tackle these issues. I should add that none of this means that any of us adopt an anti-mask approach. We entirely support the need to where a mask where possible.

About the Author

Chris Fry

Chris is the founder of Fry Law.

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