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What to do if you're vulnerable and your colleagues won't wear mask

Young businesswoman in glasses and medical mask actively gesturing when explaining idea to collesgue
Coronavirus policy could be a workplace minefield as restrictions ease. Photo: Getty

Many of us are accustomed to having face masks stashed away in every pocket or bag, after 18 months of wearing facial coverings to curb the spread of Covid-19. In a few weeks, however, it will no longer be a legal requirement to wear a face mask in England.

Boris Johnson has said it is “expected and recommended” that they are still worn in crowded and enclosed spaces after the remaining Covid restrictions are lifted on 19th July. However, with many returning to offices and workspaces, it will be up to employers to decide whether employees should wear masks.

But what should you do if you don’t feel safe at work - or if your employer doesn’t want to make staff wear masks?

Whether you work full time or have a zero-hours contract, you have the right to be safe at work. The Employment Rights Act 1996 provides protection to employees, as does the Equality Act 2010.

“If you are concerned you should speak with your employer,” says Anita Vadgama, legal director at employment lawyers Didlaw.

“Employers are under a duty to protect the health, safety and welfare of their employees and risk assessments should be carried out to address all risks that might cause harm in your workplace. This is especially for those who are pregnant or who have underlying health conditions are more vulnerable to non-mask wearers.”

Your employer should be able to explain to you the risks and what measures they have put in place to mitigate these. If you don’t feel comfortable going back to the office, your employer should consider your case individually and make an effort to understand why. For example, it might be because you have been shielding. If you have any concerns, you should report these to your employer.

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Ultimately, the Employment Rights Act gives employees protection against being dismissed or treated detrimentally in circumstances where they have refused to attend work because they have a genuine reason to be concerned about their health.

“You can also use the company’s internal procedures, such as the grievance procedure, to raise a formal complaint if your informal concerns are not taken seriously,” says Vadgama.

“If you feel that your health and safety has not been properly assessed and you then are treated less favourably, you might have a claim for being subjected to a detriment because of raising health and safety concerns,” she adds. “If you lose your job, then you might have a claim for unfair dismissal.”

What to do if you have only had a single vaccination

While the Covid-19 vaccination programme is well underway, there are plenty of people who are still yet to have their second vaccination. Those further down the waiting list, such as young people and pregnant women, may have only had their first vaccination of Astra-Zeneca, Pfizer or Moderna.

“If you are waiting for your second vaccination and you are vulnerable in the interim, you may request that you work at home (if you are able to) on a temporary basis. E.g., until you have had your second vaccination,” says Vadgama.

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Since 2003, working parents in the UK have been entitled to request flexible working for childcare reasons. In 2014, the right was extended to all employees in the UK with at least 26 weeks’ continuous service.

Currently, employees have the legal right to request flexible working for any reason. This can be to request a change to full-time or part-time work, job-share, work from home, or a change of working days or hours. Employers are legally obliged to consider flexible working requests in a ‘reasonable’ manner, taking the individual’s situation into account.

What rights do you have at work if you have an underlying health condition or are pregnant?

If your underlying condition meets the statutory definition of disability as defined in the Equality Act 2010, then your employer has a duty to make reasonable adjustments.

“You will have to show that the practice of other people not wearing a mask has caused you less favourable treatment and puts you at a substantial disadvantage,” says Vadgama. “The duty applies to all employers regardless of their size. We would recommend that if you have not informed your employer of your underlying condition that you do so as soon as possible so that they can assess the risk.”

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If you are not disabled but someone whom you live with is, such as your spouse, child or family member, you also have rights too. “If you raise concerns and you are subsequently treated less favourably then you may have a claim for associative discrimination,” says Vadgama.

If you decide not to go to work, you could ask your doctor for a fit note to say you can’t work. You should also check if you can get statutory sick pay or any benefits to help you while you are unable to work.

If you are pregnant and have informed your employer, they should carry out a risk assessment. “Pregnant women of any gestation should not be required to continue working if this is not supported by the risk assessment,” says Vadgama.

“If your employer cannot remove or manage any identified risks then you should be offered suitable alternative work or alternative working arrangements - including working from home. If this is not possible you should be suspended on full pay,” she says. “Pregnant women and those who are disabled - as defined by the Equality Act 2010 - should not be discriminated against because of these protected characteristics.”

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