AND DISCRIMINATION


Basically, the exemption from wearing a mask is the ‘some- thing arising from B’s disability.


Then we have the word ‘and’, which is very important because it makes it clear that for discrimination to take place both (a) and (b) would have to apply.


The treatment would refer to refusing to allow the exempt passengers into your vehicle without face coverings. The legitimate aim is protecting yourself, subsequent passengers in days to come and your loved ones from contracting Covid-19, not to mention generally reducing community transmission of the virus.


https://disabilityrights.org.uk/ has managed to obtain an out- of-court settlement for such discrimination but no defence was offered and only the settlement figure was in dispute when a service provider (they do not specify, although I suspect it was a retail outlet of some kind) refused to allow an exempt person without a face covering entry to their premises. A figure of £7,000 was mentioned. This is more than enough to put the wind up any taxi or private hire driver, especially given very poor current earnings expectations.


Remember, no defence was offered, it was likely not in a licensed vehicle so the unanswered question remains: Was refusing a person claiming exemption from wearing a face covering a proportionate means of achieving the above aim?


EXEMPTION REFUSAL


In a retail outlet such as a supermarket, it would probably be hard to justify as various alternative means of reducing risk of transmission of the virus are at their disposal in such an environment, including implementing one-way systems, social distancing and limiting the numbers of people in store and to one adult per household. It is also a much bigger space which, combined with adequate ventilation, exhaled air containing virus-bearing droplets may potentially be taken swiftly out of harm’s way. Also, exempt persons not wearing face coverings are unlikely to number more than about one in 20 people in the store and giving such persons a wide berth – for your benefit and theirs – would not be so difficult.


In a car it is an entirely different matter. Space is extremely limited and social distancing impossible. A mother with her two children under 11 may all be without face coverings if she claims exemption. A deaf person and someone accompany- ing them may both claim exemption if their method of com- munication is lip reading.


COMMUNICATION V TRANSMISSION


Potentially all of your passengers could be without face coverings and only a metre or less away from you. Does their right to communicate in this manner take precedence over


MARCH 2021


your right to prevent the transmission of Covid-19? Even with open windows and a partition screen, air still circulates within the whole vehicle. Face coverings are probably the only things that would capture those tiny droplets before they become airborne. Therefore, especially with the emergence of more infectious strains, could a blanket ban on people without face coverings, no exceptions, reasonably be deemed a proportionate means of achieving a legitimate aim?


Such a blanket ban (one which does not mention and allow for exemptions) may be considered indirect discrimination contrary to Section 19 of the Equality Act:- Indirect discrimination (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discrimina- tory in relation to a relevant protected characteristic of B’s.


(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if -


(a) A applies, or would apply, it to persons with whom B does not share the characteristic,


(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,


(c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.


However, note that word ‘and’ and (d), I’ve emphasised them both). With indirect discrimination the same get-out-of-jail- free (or potentially paying a large sum of money in compen- sation) card appears again.


Was it ever intended that the rights of persons with protected characteristics could ride roughshod over the rights of others who may or may not also have protected characteristics?


My parents have been shielding since March last year due to their respective ages and other underlying health conditions. My father is also registered disabled. I have been taking them to their medical appointments and bringing all their groceries to their door at least once per week since then and I have distanced conversations with them from the driveway while they stand in the porch. I could not live with myself if I infected them.


On one occasion they had professional cleaners in the house and I noticed one of them walk out of their front door without a face covering. I mentioned this to Mum afterwards. They haven’t been back since. What if the unmasked individual claimed exemption? Would my elderly parents, disabled in the case of my father, be guilty of discrimination contrary to Sections 13, 15 and/or 19 of the Equality Act?


Could they be liable to litigation and a hefty compensation pay-out?


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