To face mask, or not to face mask - that is the question

Discrimination claims arising from the “policing” of non-compliance with face mask requirements

Since the pandemic began, we have become accustomed to the wearing of face masks in retail environments, on public transport, in hospitality venues and so on. As we move into stage four of the UK Government roadmap on 19 July 2021, wearing a face mask will become a personal responsibility rather than an obligation.

During the pandemic, there was a shift in in responsibility and “policing” from Government to businesses and organisations to don a policeman’s hat. In November 2020, Government guidance stated that premises where face coverings are required, should take “reasonable steps” to promote compliance. Further, “by law”, businesses must “remind people to wear face coverings where they are required”. The National Police Chief’s Council stated that the police would only become involved as a last result.

This “policing” of non-compliance is triggering a ripple of new “injury to feeling” claims. In this article, we explore the liability mechanisms and the cost consequences for such claims.

Opening the floodgates?

We are aware that companies and organisations are starting to receive discrimination claims arising from the verbal enquiries made and/or steps taken, by those seeking to promote face mask wearing compliance. One disability rights company is so inundated with claims that they now supply a template letter of claim for claimants to use in order to represent themselves.

We anticipate that claims will be pursued under:

  • The Equality Act 2010 - for direct and/or indirect discrimination
  • The Human Rights Act 1998
  • The Protection from Harassment Act 1997.

The majority of the claims are likely to be advanced as injury to feeling claims, although some claimants may advance a claim for psychiatric injury. Although compensation for a one-off event that caused injury to feelings is likely to be low value, certain Facebook posts and forums suggest to potential claimants that they can receive £9,000 in damages which is for the majority of cases incorrect.

We predict a significant proportion of the claims will be pursued by litigants in person. Although their legal costs are negligible, the defence costs will inevitably be higher than they would be if the claimant was legally represented. Further, some claimant law firms are now starting to advertise that they stand ready to advise the public regarding this emerging area of claims.

We foresee that the court will be mindful of the context in which such claims are brought and to date, we are not aware of any liability judgments handed down. For defendants, it will be a matter of watching and waiting.

Basis of assessment for Equality Act claims

Claims under the Equality Act 2010 have been in the spotlight several times over recent years; but in this post-Jackson era, they remain one of the few claims yet to be considered for a fixed costs regime.

Anyone who makes a claim under the Equality Act is likely to receive a fast-track or multi-track allocation, often due to the complexity of the claim and/or the number of witnesses required to give evidence. For defendants, these claims can often cause frustration, as the amount of work (and therefore costs) to defend them is often not proportionate to the damages received by the claimant.

At conclusion of the claim, and in the absence of an alternative court order, costs will be assessed on the standard basis. For defendants who successfully defend a claim, they will also obtain an enforceable costs order, as the umbrella for qualified one-way costs shifting (QOCS) does not include injury to feelings.

QOCS – mixed claims

We may start to see an increase in mixed QOCS claims, where claimants claim personal injury, normally in the form of a psychiatric injury arising from the underlying Equality Act claim.

This very scenario was addressed in the case of Brown v The Commissioner of Police of the Metropolis and another [2019]. The claimant successfully pursued a claim for damages under the Data Protection Act 2018 and Human Rights Act 1998 for misuse of private information. Alongside this, a claim was brought for personal injury which failed.

At trial, the claimant failed to beat the defendant’s Part 36 offer, and therefore had a liability to pay costs from expiry of the relevant period. The claimant argued that QOCS applied as the claim involved personal injury, thus limiting her costs liability to the level of damages recovered. The court initially agreed with the claimant, but this was overturned in the Court of Appeal who found “no justification for allowing claims which are not claims for personal injuries to attract automatic QOCS protection”.

The rationale behind the court’s decision was simple in that the main element to the case was not the personal injury claim. This, therefore, leads the way for hybrid “mixed claims”, where an element of the claim would have QOCS protection.

We anticipate courts facing challenges in the future over what constitutes the main claim, particularly when a claimant is faced with a potential hefty legal bill. It is likely that we will continue to see QOCS arguments being raised.

Comment

There is an expectation generally that there will be a boom in Equality Act claims given the current COVID-19 challenges that people face; although one would hope that the potential costs liability if unsuccessful would reduce the level of erroneous claims being made.

A defendant’s approach to these emerging claims will depend on the specific facts of the claim, any generic approach that they are adopting, reputational and cost concerns. If defendants settle initial claims in an effort to save costs, this could have a floodgate effect, resulting in an overall greater spend. Defendants tactics will evolve and develop to reflect the (eagerly awaited) court’s response to liability and costs for these claims.