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We just want to give a legal perspective on the issue of any institution requiring you to wear a mask. We are speaking from the England and Wales jurisdiction only here.

Let's go back first, to 2020, when masking became a legislative issue under The Health Protection (Coronavirus, Wearing of Face Coverings) (England) Regulations. You will recall the "exemptions" under these regulations which were so broad that everyone could have claimed an exemption if they wished to under the "physical or mental illness or impairment" category. Suffice to say, panic or anxiety about covering your breathing hole would be enough to fulfil the illness part of this.

The mask regulations expired on 27th January 2022, but some health settings and indeed businesses still require people to wear masks now. Many people ask us "can they do this".

Broadly the answer is yes for private businesses, because they can set their own terms of entry to premises or use of services. However this is caveated by such terms being lawful and particularly not discriminating against someone under The Equality Act 2010. This is where most businesses fall down. No discriminating applied under the mask regulations, hence the broad exemption category above. No discriminating still applies now too.

If you are unable to wear a mask due to a disability and a business simply has a broad brush "no mask no entry" policy so that you couldn't even step foot through the door, this is a clear case of direct discrimination.

If you are unable to wear a mask due to a disability, and a business fails to make a reasonable adjustment for your disability, this is a case of indirect discrimination against you. Both direct and indirect discrimination fall under The Equality Act 2010 if the issue is connected to a protected characteristic. There are nine protected characteristics:

age,
disability, (see below)
gender reassignment,
marriage and civil partnership,
pregnancy and maternity,
race,
religion or belief,
sex, and
sexual orientation

In the Equality Act a disability means a physical or a mental condition which has a substantial and long-term impact on your ability to do normal day to day activities.

You are covered by the Equality Act if you have a progressive condition like HIV, cancer or multiple sclerosis, even if you are currently able to carry out normal day to day activities. You are protected as soon as you are diagnosed with a progressive condition.

You are also covered by the Equality Act if you had a disability in the past. For example, if you had a mental health condition in the past which lasted for over 12 months, but you have now recovered, you are still protected from discrimination because of that disability.

The above also applies to medical institutions. In addition, medical institutions, as public authorities, are also required to comply with the Human Rights Act 1998 (HRA). The NHS are a public authority, and therefore must comply with the HRA.

Article 14 of the ECHR states that no one should be denied access to any of the other rights in the ECHR on the basis of certain characteristics. The list of characteristics in Article 14 is more open-ended than the list in the Equality Act. This means that other characteristics might be relevant for a discrimination claim against the NHS or other public authorities. However, it must be shown that another ECHR right is under threat due to that characteristic.

For instance, if someone was denied access to emergency life-saving treatment because they were unable to wear a mask, this would breach their right to life (Article 2) in a discriminatory way (Article 14). However, each case is considered on its own merits.

By way of example, if the medical treatment in question was elective, Article 2 would not be relevant and therefore a discrimination claim could not be brought on that basis.

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