Blog: Face Masks And Retail

Another Compensation Opportunity In The Republic Of Ireland

Blog: The insurance industry has witnessed an increasing number of claims being presented against various businesses and retailers for refusing admission to customers for failure to wear face masks and for even challenging the customer in the first place.

As this has the potential to become a major issue for the industry, we thought it might be useful to provide a brief overview of the law, the possible exposures that businesses and retailers face and what they can do to mitigate this risk.

The Law On Face Masks

On 10th August 2020 the Irish Government introduced legislation requiring persons over the age of 13 to wear face coverings in a number of specified premises, including retail premises and shopping centres.

Section 4 of the Regulations states “a person shall not, without reasonable excuse, enter or remain in a relevant premises in a relevant geographical location without wearing a face covering.”

The reasons deemed to be reasonable excuses, removing the requirement to wear a face covering include issues such as not being able to put on, wear or remove a face covering because of any physical or mental illness, impairment, or disability or without severe distress or if a person has communication difficulties. The full list of seven reasons is detailed in Section 5 of the Regulations.

As time has gone on and the pandemic remains prevalent in its impact on society, the legislation continues to be extended and enforced.

Responsible Person

Section 4. (4) requires a responsible person to take reasonable steps to engage with persons entering or already in the relevant premises to inform them of the requirements of the legislation and to promote compliance with those requirements.

Under the legislation, a responsible person is clearly defined as the occupier or manager or any other person for the time being in charge of the relevant premises.  Staff members, other than managers or the person in charge are not defined as responsible persons.

Can retailers refuse entry to persons who are not wearing a mask?

The simple answer is yes, retailers are within their legal rights to refuse entry or to ask a customer to leave under Section 4 (1).

Can retailers ask if the person has a reasonable excuse for not wearing a mask?

Again, the answer is yes, under Section 5, retailers can ask if the person has a reasonable excuse.  However, the legislation does not provide for a requirement that the person must produce documented evidence of the reasonable excuse being relied upon.

Citizensinformation.ie states “If you have a reasonable excuse not to wear a face covering, tell a member of staff”.  That’s as far as it goes in terms of proof and it appears that businesses and retailers have to accept the customer’s word in each case.  There is no legal obligation for customers to prove their exemption by way of documentation.

Does refusal of admission or even an enquiry leave businesses and retailers exposed to claims for compensation?

The legislation places an onus on businesses and retailers to take reasonable steps to engage with their customers, inform them of the requirements and promote compliance with the requirements.  They can therefore plead in their defence that they are simply complying with the law.  They can also plead that they have health and safety obligations to their own staff and customers.

Where an issue may arise is if they refuse entry after they have been informed of an exemption. How a judge or Workplace Relations Commission (WRC) adjudicator will balance the rights of customers as against the retailers’ obligations to its staff and customers remains to be seen, although we would hope that they would place significant weight and understanding on the obligation placed upon the business to protect both their employees and customers by being diligent in following the legislation.

Claims may be brought alleging discrimination under the Equal Status legislation (most likely under the “disability” ground).  These claims will be heard by the WRC and a monetary award of compensation may be made.

Claims may also be brought for compensation for anxiety, distress, embarrassment and damage to reputation.  The courts typically do not make awards of compensation for anxiety, distress and embarrassment unless it results in the suffering of a recognised psychiatric injury, which is most unlikely in this scenario.

Would the courts entertain a claim for damage to reputation – essentially defamation?  One would hope not but a lot would depend on the behaviour and attitude of the retailer in its dealings with the customer at the time.

Even if these claims fail, there is a cost to the business in having to defend them.

What can businesses and retailers do to mitigate the risk of claims?

The training of those staff tasked with implementing the legislation is essential.  They should be made both keenly aware of the seven reasonable excuses as well as understand their employer’s agreed approach as to how to respond to those customers who present one of the seven reasonable excuses.

If a claimant can prove that the response was discriminatory or defamatory, then there is a possibility that compensation may be awarded by the WRC or Courts.

Clearly there may be further legislative change ahead as the government works to stay on top of the pandemic and its impacts, so it is essential that we all keep ourselves up to date so that we are in the best possible position to be able to support our partners and clients in the months ahead.